Niemiec v. Com., Dept. of Soc. Servs., 499 S.E.2d 576 (Va. Ct. App. 1998). · Go Syfert
Niemiec v. Com., Dept. of Soc. Servs., 499 S.E.2d 576 (Va. Ct. App. 1998). Cases Citing This Book View Copy Cite
175 citation events (157 in the last 25 years) across 6 distinct courts.
Strongest positive: William Micus v. Dorothy Mitchell (vactapp, 2006-03-07) · Strongest negative: Louis John Swallow, Jr. v. Urbieta A. Swallow (vactapp, 2007-08-07)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited "but see" Louis John Swallow, Jr. v. Urbieta A. Swallow (3×) also: Cited as authority (rule)
Va. Ct. App. · 2007 · signal: but cf. · confidence high
See Budnick, 42 Va. App. at 841 , 595 S.E.2d at 59 ; but cf. Niemiec, 27 Va. App. at 451-53 , 499 S.E.2d at 579-80 (finding insufficient evidence mother was underemployed where the statement of facts failed to show she left or ever had a higher paying position or to quantify the “significant compensation” she received as a part-time daycare provider).
examined Cited as authority (verbatim quote) William Micus v. Dorothy Mitchell (2×) also: Cited as authority (quoted)
Va. Ct. App. · 2006 · signal: see also · quote attribution · 2 verbatim quotes · confidence high
the burden is on the party seeking the imputation
cited Cited as authority (rule) Jerome Myers, II v. Janetta Katrece Myers
Va. Ct. App. · 2020 · confidence medium
Servs., 27 Va. App. 446, 451 (1998)).
cited Cited as authority (rule) Nina T. Daniel v. Selden L. Daniel
Va. Ct. App. · 2020 · confidence medium
Niemiec, 27 Va. App. 446, 451 (1998)).
cited Cited as authority (rule) Philip P. Wilson v. Hana Slivka
Va. Ct. App. · 2018 · confidence medium
Servs., 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998)).
examined Cited as authority (rule) Amanda Swanson Niblett v. Jason Daniel Niblett (5×) also: Cited "see"
Va. Ct. App. · 2015 · confidence medium
Niemiec, 27 Va.App. 446, 451 , 499 S.E.2d 576, 579 (1998) (quoting Brody, 16 Va. App. at 651 , 432 S.E.2d at 22 ); see also Bishop Cochran, 14 Va.App. at 830 , 419 S.E.2d at 421 (“[W]hen one makes a job change to the detriment of one’s family, it is not the family who should suffer but the one who made the job change.”).
discussed Cited as authority (rule) Michael Hugh Palmer Murphy v. Corie Ann Murphy (2×)
Va. Ct. App. · 2015 · confidence medium
Niemiec, 27 Va.App. 446, 451 , 499 S.E.2d 576, 579 (1998); Va. Dep’t of Soc.
discussed Cited as authority (rule) Michael R. Pliuskaitis v. Teresa M. Pliuskaitis
Va. Ct. App. · 2013 · confidence medium
In evaluating a request to impute income, the trial court must “consider the [parties’] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and the children.” Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998).
discussed Cited as authority (rule) Kyle Pritchett Macione v. Beatriz Huarte Irujo Macione (2×)
Va. Ct. App. · 2013 · confidence medium
Servs.], 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998). - 10 - Blackburn v. Michael, 30 Va. App. 95, 102 , 515 S.E.2d 780, 783-84 (1999).
discussed Cited as authority (rule) Timothy M. Barrett v. Commonwealth of Virginia, Department of Social Services, etc.
Va. Ct. App. · 2011 · confidence medium
Otherwise, ‘“[t]he burden is on the party seeking the imputation to prove that the other parent was voluntarily foregoing more gainful employment, either by producing evidence of a higher-paying former job or by showing that more lucrative work was currently available.”’ Joynes v. Payne, 36 Va. App. 401, 421 , 551 S.E.2d 10, 19 (2001) (quoting Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998)). 5 Because we conclude appellant is not entitled to an income reduction, we need not address his contention that the record contains no evidence that a reduction would no…
discussed Cited as authority (rule) Leah Steo Huston v. John Michael Huston
Va. Ct. App. · 2010 · confidence medium
In evaluating a request to impute income, the trial court must “consider the [parties’] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and the children.” Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998).
discussed Cited as authority (rule) Prisco v. Stroup
D.C. · 2010 · confidence medium
Servs., 27 Va.App. 446, 451 , 499 S.E.2d 576, 579 (1998) (internal citations omitted); see Reece, supra note 10 , 22 Va.App. at 376 , 470 S.E.2d at 152 (distinguishing between involuntary and voluntary job loss with respect to each party’s burden of proof). 15 .
examined Cited as authority (rule) Terry M. Tate v. Sharon E. Tate (3×) also: Cited "see, e.g."
Va. Ct. App. · 2009 · confidence medium
Niemiec, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998).
discussed Cited as authority (rule) Gerri Paige Butterman v. Alexander Herbert Butterman
Va. Ct. App. · 2009 · confidence medium
In evaluating a request to impute income, the trial court must “consider the [parties’] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and the children.” Blackburn v. Michael, 30 Va. App. 95, 102 , 515 S.E.2d 780, 784 (1999) (quoting Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998)).
discussed Cited as authority (rule) Lynn Michelle Favors v. Dennis Michael Favors
Va. Ct. App. · 2009 · confidence medium
In evaluating a request to impute income, the trial court must “consider the [parties’] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and the children.” Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998).
discussed Cited as authority (rule) Stanley Hubbard v. Cyrenne Hubbard
Va. Ct. App. · 2008 · confidence medium
In evaluating a request to impute income, the trial court must ‘consider the [parties’] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the -3- parents and the children.’ Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998).
discussed Cited as authority (rule) Renee Rochelle Hamilton v. Peter Joseph Hamilton
Va. Ct. App. · 2008 · confidence medium
In evaluating a request to impute income, the trial court must “consider the [parties’] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and the children.” Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998).
discussed Cited as authority (rule) Timothy M. Barrett v. Commonwealth of Virginia, Department of Social Services,etc. (2×)
Va. Ct. App. · 2008 · confidence medium
Servs., Div. of Child Support Enforcement, 27 Va. App. -9- 446, 452, 499 S.E.2d 576, 579 (1998).
discussed Cited as authority (rule) Donald Davis v. Lesa Robinson
Va. Ct. App. · 2008 · confidence medium
Servs., 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998) (“[E]xcept as provided in Code § 20-108.1(B)(3), a trial court determining child support is required to impute income to a parent who is found to be voluntarily underemployed.” (citing Code § 20-108.1(B)(3))).
cited Cited as authority (rule) Lowell F. Smith v. Alice L. Thornton-Smith
Va. Ct. App. · 2008 · confidence medium
Servs., 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998)).
cited Cited as authority (rule) Broadhead v. Broadhead
Va. Ct. App. · 2008 · confidence medium
Servs., 27 Va.App. 446, 451 , 499 S.E.2d 576, 579 (1998) (citing Code § 20-108.1(B)(3)).
discussed Cited as authority (rule) William F. Harber v. Charlene M. Harber
Va. Ct. App. · 2008 · confidence medium
The party may meet this burden by showing “evidence of a higher-paying former job or by showing that more lucrative work was currently available.” Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998).
cited Cited as authority (rule) Patrick R. Delaney v. Mary C. Delaney
Va. Ct. App. · 2007 · confidence medium
Servs., 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998) (citing Code § 20-108.1(B)(3)).
discussed Cited as authority (rule) William Cochran Harrison v. Evelyn Greene Harrison
Va. Ct. App. · 2007 · confidence medium
In determining whether to impute income, “the trial court must consider the [parties’] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and the children.” Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998) (citation omitted).
cited Cited as authority (rule) A. Bruce Ericson v. Catherine Ericson
Va. Ct. App. · 2007 · confidence medium
Servs., 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998) (citing Code § 20-108.1(B)(3)).
discussed Cited as authority (rule) Lowell F. Smith v. Alice L. Thornton-Smith
Va. Ct. App. · 2007 · confidence medium
Servs., 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998), and a court’s “refusal to impute income will not be reversed unless plainly wrong or unsupported by the evidence,” Blackburn v. Michael, 30 Va. App. 95, 102 , 515 S.E.2d 780, 784 (1999).
cited Cited as authority (rule) Jacqueline Ann Lesesne v. Thaddeus John Zablocki
Va. Ct. App. · 2007 · confidence medium
Servs., Div. of Child Support Enforcement, 27 Va. App. 446, 450-51 , 499 S.E.2d 576, 579 (1998).
cited Cited as authority (rule) Green-Stroman v. Stroman
Richmond County Cir. Ct. · 2006 · confidence medium
Nemiac v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998).
discussed Cited as authority (rule) George Jeffrey Versprille v. Elizabeth Ann Greenwood Versprille
Va. Ct. App. · 2006 · confidence medium
“The burden is on the party seeking the imputation to prove that the other parent was voluntarily foregoing more gainful employment, either by producing evidence of a higher-paying former job or by showing that more lucrative work was currently available.” Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998) (emphasis added).
discussed Cited as authority (rule) Scott Reynolds McMartin v. Mary Reynolds McMartin (2×) also: Cited "see, e.g."
Va. Ct. App. · 2006 · confidence medium
Servs., 27 - 10 - Va. App. 446, 451, 499 S.E.2d 576, 579 (1998) (citing Code § 20-108.1(B)(3)).
discussed Cited as authority (rule) Pamela L. Jacobson-Kaplan v. Adam J. Kaplan
Va. Ct. App. · 2005 · confidence medium
The evidence should allow the court to consider “earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities . . . .” Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998).
discussed Cited as authority (rule) Charles Nathaniel Brown v. Ophelia Keeling Brown
Va. Ct. App. · 2004 · confidence medium
In evaluating a request to impute income, the trial court must “consider the [parties’] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and the children.” Blackburn v. Michael, 30 Va. App. 95, 102 , 515 S.E.2d 780, 784 (1999) (quoting Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998)).
discussed Cited as authority (rule) John Robert Driskill v. Alice Jean Patton Driskill
Va. Ct. App. · 2004 · confidence medium
In evaluating a request to impute income, the trial court must “consider the [parties’] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and the children.” Blackburn v. Michael, 30 Va. App. 95, 102 , 515 S.E.2d 780, 784 (1999) (quoting Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998)).
discussed Cited as authority (rule) James P. Massa v. Susan E. Massa
Va. Ct. App. · 2004 · confidence medium
In evaluating a request to impute income, the trial court must “consider the [parties’] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and the children.” Blackburn v. Michael, 30 Va. App. 95, 102 , 515 S.E.2d 780, 784 (1999) (quoting Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998)).
cited Cited as authority (rule) Kaminsky v. Kaminsky
vacc · 2002 · confidence medium
Serv., 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998).
discussed Cited as authority (rule) Mir v. Mir (2×)
Va. Ct. App. · 2002 · confidence medium
"The burden is on the party seeking the imputation to prove that the other parent was voluntarily foregoing more gainful employment, either by producing evidence of a higher-paying former job or by showing that more lucrative work was currently available." Niemiec v. Commonwealth, 27 Va.App. 446, 451 , 499 S.E.2d 576, 579 (1998).
discussed Cited as authority (rule) Noel J. Albert v. Cynthia G. Albert
Va. Ct. App. · 2002 · confidence medium
Serv., 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998): When asked to impute income to a parent, the trial court must consider the parent's earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and children.
discussed Cited as authority (rule) Noel J. Albert v. Cynthia G. Albert
Va. Ct. App. · 2002 · confidence medium
Serv., 27 Va.App. 446, 451 , 499 S.E.2d 576, 579 (1998): When asked to impute income to a parent, the trial court must consider the parent’s earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and children.
discussed Cited as authority (rule) Kevin B. Carr v. Mary Ellen Carr
Va. Ct. App. · 2002 · confidence medium
"When asked to impute income to a [party], the trial court must consider the [party's] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and children." Niemiec v. Department of Social Services, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998) (citing Brooks v. Rogers, 18 Va. App. 585, 592 , 445 S.E.2d 725, 729 (1994)).
discussed Cited as authority (rule) John D. Pellegrin v. Diane L.B. Pellegrin (Ramee) (2×)
Va. Ct. App. · 2002 · confidence medium
Servs., 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998) (citations omitted).
discussed Cited as authority (rule) Kathy D. Mann v. Jeffrey S. Smith (2×)
Va. Ct. App. · 2001 · confidence medium
Servs., Div. of Child Support Enforcement, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998) (citations omitted).
discussed Cited as authority (rule) Jeffrey S. Smith v. Kathy D. Mann (2×)
Va. Ct. App. · 2001 · confidence medium
Servs., Div. of Child Support Enforcement, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998) (citations omitted).
examined Cited as authority (rule) Walter George v. Barbara E. Locklin-George (3×) also: Cited "see"
Va. Ct. App. · 2001 · confidence medium
Servs., 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998).
discussed Cited as authority (rule) William Howell Grover, II v. Sandra Hackley Grover (2×) also: Cited "see"
Va. Ct. App. · 2001 · confidence medium
In evaluating a request to impute income, the trial court must "consider the [parties'] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and the children." Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998).
cited Cited as authority (rule) Joynes v. Payne
Va. Ct. App. · 2001 · confidence medium
Servs., 27 Va.App. 446, 451 , 499 S.E.2d 576, 579 (1998).
discussed Cited as authority (rule) Joseph Kenneth Tatum v. Sarah Ruth Wofford Tatum
Va. Ct. App. · 2000 · confidence medium
In determining whether to impute income, "the trial court must consider the [parties'] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and the children." Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998) (citation omitted).
discussed Cited as authority (rule) Sarah Ruth Wofford Tatum v. Joseph Kenneth Tatum
Va. Ct. App. · 2000 · confidence medium
In determining whether to impute income, "the trial court must consider the [parties'] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and the children." Niemiec v. Commonwealth, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998) (citation omitted).
cited Cited as authority (rule) Diane Harris Ragsdale v. Thomas H. Ragsdale
Va. Ct. App. · 1999 · confidence medium
Servs., Div. of Child Support Enforcement, 27 Va. App. 446, 450-51 , 499 S.E.2d 576, 579 (1998).
discussed Cited as authority (rule) Stephen Glen McCord v. Karen Sue McCord (2×) also: Cited "see"
Va. Ct. App. · 1999 · confidence medium
Servs., Div. of Child Support Enforcement, 27 Va. App. 446, 451 , 499 S.E.2d 576, 579 (1998).
cited Cited as authority (rule) Thomas H. Ragsdale v. Diane Harris Ragsdale
Va. Ct. App. · 1999 · confidence medium
Servs., Div. of Child Support Enforcement, 27 Va.App. 446, 450-51 , 499 S.E.2d 576, 579 (1998).
Retrieving the full opinion text from the archive…
Marlene NIEMIEC
v.
COMMONWEALTH of Virginia, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, Ex Rel. John R. NIEMIEC
Record 1744-97-4.
Court of Appeals of Virginia.
Jun 2, 1998.
499 S.E.2d 576
1998 Va. App. LEXIS 304
Kevin E. Smith (Schumack & Smith, on briefs), Fairfax, for appellant., William K. Wetzonis, Special Counsel (Nancy J. Crawford, Regional Special Counsel; Richard Cullen, Attorney General; William H. Hurd, Deputy Attorney General; Robert B. Cousins, Jr., Senior Assistant Attorney General; Craig M. Burshem, Regional Special Counsel, on brief), for appellee.
Elder.
Cited by 57 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 87%
Citer courts: Court of Appeals of Virginia (1)
ELDER, Judge.

Marlene Niemiec (“mother”) appeals the trial court’s order requiring her to pay $440 per month in child support to John R. Niemiec (“father”) through the Division of Child Support Enforcement (“division”). She contends the trial court erred when it imputed income to her when calculating her child support obligation. For the reasons that follow, we reverse.

[*449] I.

FACTS

The parties were married in 1984, had two daughters, and divorced in 1995. As part of its divorce decree, the trial court awarded custody of the parties’ children to father and entered no order regarding child support.

On February 12, 1997, the Division of Child Support Enforcement (“division”) filed a motion on behalf of father seeking a court order requiring mother to pay child support to father through the division. On June 20, 1997, the trial court held a hearing on the division’s motion. The record in this case does not contain transcripts of the hearing, and the evidence presented by the parties has been summarized in a written statement of facts. According to this statement, father testified that mother worked part-time as a day care provider during the parties’ marriage. He testified that she cared for between two and five children at a time and “received significant compensation.”

Mother testified that, since December 1996, she had been employed part-time as an administrative assistant. She earned $9 per hour, and her employer generally limited her to no more than twenty hours work per week. Occasionally, she had been allowed to work thirty hours per week. The parties stipulated that her current actual income was $780 per month. Mother testified that, while the parties were married, she stayed at home to care for their children and “earned money as a day care provider for other children.” She testified that, following the parties’ divorce in November 1995, she actively looked and applied for “full-time work and better jobs.” As of the date of the hearing, all of her attempts were unsuccessful. She testified that she was still a licensed day care provider in Virginia but that she had not sought employment in this field, either full time or part-time. Mother testified that she did not suffer from any physical or mental impairments that would prevent her from working full time.

[*450] A child support worksheet included in the record indicates that, based on the parties’ current actual incomes, the presumptively correct amount of mother’s child support obligation was $252.05. The division argued that the trial court should depart upward from the guideline amount because mother was voluntarily underemployed. In support of its argument, the division calculated the presumptively correct amount of mother’s obligation based on the assumption that she worked forty hours per week at her current hourly wage. Based on this amount of income, mother’s child support obligation under the guidelines was $463.94 per month.

At the conclusion of the presentation of evidence, the trial court found that the presumptively correct amount of mother’s child support obligation was $252. The trial court found that “there has been no evidence to demonstrate that [mother] is not able to work a full-time (40-hour) position.” The trial court found that she was voluntarily underemployed and imputed additional income to her of $780 per month. The trial court found that, based on monthly income of $1,560 per month, the presumptively correct amount of mother’s child support obligation was $464 per month. The trial court then found that mother had previously incurred debts to support the children and awarded her a monthly credit of $24 to pay off these debts. It then ordered mother to pay father $440 per month in child support through the division.

II.

IMPUTATION OF INCOME

Mother contends the trial court erred when it deviated upward from the presumptively correct amount of her child support obligation by imputing income to her. She argues the evidence was insufficient to support the trial court’s finding that she was voluntarily underemployed. We agree.

In any proceeding to determine a parent’s child support obligation, “there is a rebuttable presumption that the amount determined in accordance with the statutory guide[*451] lines, Code § 20-108.2, is the correct award.” Brooks v. Rogers, 18 Va.App. 585, 591, 445 S.E.2d 725, 728 (1994). If the presumptive amount is unjust or inappropriate, the trial court may deviate from it based upon the factors found in Code § 20-108.1. See Watkinson v. Henley, 13 Va.App. 151, 158, 409 S.E.2d 470, 473-74 (1991). Following a divorce, a parent may not voluntarily pursue low paying employment “to the detriment of support obligations to the children.” Brody v. Brody, 16 Va.App. 647, 651, 432 S.E.2d 20, 22 (1993); see also Auman v. Auman, 21 Va.App. 275, 279, 464 S.E.2d 154, 156 (1995). As such, except as provided in Code § 20-108.1(B)(3), a trial court determining child support is required to impute income to a parent who is found to be voluntarily underemployed. See Hamel v. Hamel, 18 Va.App. 10, 12, 441 S.E.2d 221, 222 (1994); see also Code § 20-108.1(B)(3), (11) (stating that “[i]mputed income to a party who is voluntarily unemployed or voluntarily under-employed” and the “[e]arning capacity ... of each parent” are factors on which the trial court may justify a deviation from the presumptively correct amount of child support).

When asked to impute income to a parent, the trial court must consider the parent’s earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and children. See Brooks, 18 Va.App. at 592, 445 S.E.2d at 729 (citing Code § 20-108.1(B)). The burden is on the party seeking the imputation to prove that the other parent was voluntarily foregoing more gainful employment, either by producing evidence of a higher-paying former job or by showing that more lucrative work was currently available. See Brody, 16 Va.App. at 651, 432 S.E.2d at 22; Hur v. Virginia Dept. of Social Services Div. of Child Support Enforcement ex rel. Klopp, 13 Va.App. 54, 61, 409 S.E.2d 454, 459 (1991); see also Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991). The evidence must be sufficient to “enable the trial judge reasonably to project what amount could be anticipated.” Hur, 13 Va.App. at 61, 409 S.E.2d at 459. “If a trial court imputes income to a party, it must make[*452] written findings explaining why imputed income to the party would make it unjust or inappropriate to award the presumptive amount of child support.” Brody, 16 Va.App. at 650, 432 S.E.2d at 21-22.

A trial court’s decision to deviate from the presumptively correct amount of child support based upon imputed income will not be disturbed on appeal if it is supported by the evidence and the trial court has not otherwise abused its discretion. See Brooks, 18 Va.App. at 592, 445 S.E.2d at 729. The trial court’s award must be “based upon ‘circumstances in existence at the time of the award’ and not upon speculation or conjecture.” Id.

We hold that the evidence was insufficient to support the trial court’s conclusion that mother was voluntarily underemployed. The summary of the evidence contained in the written statement of facts indicates that a finding that mother had voluntarily foregone higher-paying employment could only be made by supplementing the evidence presented with surmise and conjecture.

First, no evidence in the record indicates that mother previously left higher-paying employment. Although a trial court may impute income to a parent “based on evidence of recent past earnings,” Brody, 16 Va.App. at 651, 432 S.E.2d at 22, the evidence of mother’s past earnings did not establish that her remuneration from her current part-time job as an administrative assistant represented a reduction in income. The written statement of facts prepared by the parties states only that mother worked part-time as a day care provider during the parties’ marriage and that she earned “significant compensation.” The statement of facts does not quantify how “significant” mother’s income was from this work. Moreover, both mother’s prior work as a day care provider and her current job as an administrative assistant were part-time vocations, and the record does not otherwise indicate that her income as a day care provider was greater than her income as an administrative assistant.

[*453] In addition, the evidence regarding the employment opportunities currently available to mother does not support the trial court’s finding that she could earn twice her current income by working forty hours per week. The record established that mother could not double her income by working forty hours per week for her current employer. Although mother earned $9 per hour from her current job, the record established that her employer never permitted her to work more than twenty-to-thirty hours per week. In addition, the evidence in the record regarding mother’s search for better-paying employment does not indicate that she failed to market herself adequately. Mother’s uncontradicted testimony established that she had “actively look[ed] and applied] for full-time work and better jobs” since the parties’ divorce and that all of her efforts had been unsuccessful. Although mother had not sought full-time work as a day care provider, a position for which she was still licensed, the record did not establish that such positions were available or that her earnings from full-time work in this field would be greater than her current income.

For the foregoing reasons, we reverse the judgment of the trial court.

Reversed.