Appeals from the Superior Court of the District of Columbia (DRB1270-04) (Hon. Zinora M. Mitchell-Rankin, Trial Judge)
The opinion of the court was delivered by: Kramer, Associate Judge:
Amended December 16, 2010
Before REID and KRAMER, Associate Judges, and NEBEKER, Senior Judge.
This case has been here before.*fn1
The controversy central to the previous case - namely, Ms.
Prisco's request to compel increased child support from Mr. Stroup -
underlies this appeal as well. In this round of litigation, Ms. Prisco
appeals the trial judge's order partially granting her motion to
recalculate the amount of child support for 2006 and 2007.
Specifically, Ms. Prisco objects to the application of the Virginia
child support guidelines to determine the new child support amount,
the imputation of income to her while she was unemployed, and the
elimination of all arrearages owed by Mr. Stroup in
light of additional payments he has been making towards the children's
expenses. In addition, Ms. Prisco appeals the judge's decision to deny
her attorney's fees.
We discern no error in the application of Virginia child support guidelines. At the same time, we hold that the trial judge was plainly wrong when she imputed income to Ms. Prisco for the time period in which she was unemployed. In addition, it was clear error to allow Mr. Stroup's arrearages to be offset by the additional payments he made beyond his obligations under the parties' agreement. Therefore, we remand for a recalculation with no income imputed for Ms. Prisco and no offset for any extra payments made by Mr. Stroup. Finally, because the parties' agreement explicitly provided for attorney's fees to the prevailing party, the trial court should, on remand, determine which party prevailed under Virginia law and award fees accordingly. We affirm the order as to all other issues raised on appeal.*fn2
Our previous opinion contains a detailed background of the controversy up to 2006.*fn3
Briefly, the parties divorced in Virginia in 2000. They memorialized the divorce in a Property and Support Settlement Agreement ("Agreement") which was incorporated, but not merged, into the Virginia court's order. In 2004, Ms. Prisco registered the Virginia order in the Superior Court after Mr. Stroup moved to the District. At the same time, she asked the court to modify the amount of child support pursuant to D.C. Code § 46-204 (a) (2001) because, she alleged, there had been a substantial and material change in the parties' circumstances. The trial court denied the motion, and we affirmed.*fn4
In this instance, instead of asking for a modification of the order under the D.C. Code, Ms. Prisco requested the court to recalculate the child support amount pursuant to the Agreement.*fn5 The trial court agreed that the Agreement provided for such a recalculation. The court, however, applied the Virginia guidelines*fn6 to recalculate the child support amount for the years 2006 and 2007, rather than the District of Columbia child support guidelines,*fn7 because the Agreement provided that it "shall be construed under and governed by the laws of the Commonwealth of Virginia."
In recalculating the child support amount, the trial judge imputed income to Ms. Prisco for the time period during which she was unemployed because she found Ms. Prisco's job search "was not commensurate with a sincere desire for employment." The judge focused on the fact that Ms. Prisco was unwilling to consider positions that required her to commute long distances or travel, and her failure to "effectively market herself" or to "effectively network." Particularly, the court found that Ms. Prisco's job application letters were "lackluster" and that the number of interviews she secured was "mediocre." The court also emphasized the fact that Ms. Prisco declined a job offer because it required her to travel to Europe. The court concluded that there was "no viable reason . . . that she could not travel . . . except personal choice." To the court, this reflected "the insincerity of her efforts to find employment." Finally, the trial court found a lack of diligence in Ms. Prisco's failure to contact a law firm that Mr. Stroup had referred her to, as well as her failure to conduct a broader job search that included teaching or "of counsel" positions.
Based on these findings, the court recalculated child support using an imputed income of $100,000 for Ms. Prisco and approximately $1,400,000 for Mr. Stroup. Even though the result was an increased amount of child support attributable to Mr. Stroup, the court subtracted the additional payments Mr. Stroup had made towards the children's expenses from the arrearages owed by him. The court found that Mr. Stroup's payments toward the children's expenses "far exceed[ed] any amount that this Court would require that he pay."*fn8
Finally, the court declined to award either side attorney's fees, even though the Agreement explicitly provided for such an ...