## Facts

- Gary Sargent (husband) and Patricia Vaught Sargent (wife) married in 1976 and had two sons, Dustin (born 1981) and Matthew (born 1985).
- In July 1993, wife filed for divorce alleging cruelty and left the marital home; husband filed for divorce alleging desertion.
- A guardian ad litem was appointed and recommended split physical custody: Dustin with father and Matthew with mother; a pendente lite order implemented joint custody with that primary-care arrangement and awarded temporary spousal and child support to wife.
- At the 1994 final hearing, the court received evidence on custody, support, and divorce grounds, including that Matthew expressed a preference to live with father.
- The guardian ad litem acknowledged Matthew’s preference but recommended Matthew remain primarily with mother because he was doing well there, with increased visitation to father.
- The circuit court granted wife a divorce on the ground of separation for more than one year, awarded wife primary physical custody of Matthew (and husband custody of Dustin), and calculated child and spousal support without imputing additional income to wife and without treating the earned income tax credit or pendente lite spousal support as income to wife.
- Husband appealed the custody determination, the support calculations, and the divorce ground and spousal-support rulings tied to his desertion claim.

## Issues

1. Whether the trial court failed to give adequate weight to Matthew’s stated preference to live with father when awarding custody to mother.
2. Whether the trial court erred by declining to impute additional income to wife for child and spousal support purposes.
3. Whether the trial court erred by excluding the earned income tax credit and pendente lite spousal support from wife’s income when calculating support.
4. Whether the trial court erred by granting a divorce on the ground of one-year separation rather than on asserted fault grounds.
5. Whether wife’s departure constituted desertion that should have barred or materially affected an award of spousal support.

## Decision

- The Court of Appeals of Virginia affirmed the circuit court on all issues.
- The custody award was upheld because the court considered Matthew’s preference as one factor within the best-interests analysis and did not abuse its discretion in adopting the guardian ad litem’s recommendation.
- The refusal to impute additional income to wife was upheld because the record did not establish voluntary underemployment or the availability of higher-paying work.
- The exclusion of the earned income tax credit and pendente lite spousal support from wife’s income for support calculations was upheld under the statutory definition of gross income.
- The grant of divorce on the ground of one-year separation was upheld because the evidence supported that ground and the trial court had discretion to select it.
- The spousal support award to wife was upheld because the trial court could find wife’s departure was not desertion barring support and because the statutory support factors were applied without abuse of discretion.

## Legal Principles

- In child custody determinations, the child’s reasonable preference is a statutory factor but is not controlling; custody turns on the totality of the best-interests factors and is reviewed for abuse of discretion.
- Income may be imputed for support only upon a showing of voluntary unemployment or underemployment and evidence of earning capacity and job availability; absent such proof, the trial court may rely on actual income.
- For guideline support calculations, items not included within the statutory definition of “gross income” need not be counted; the court may exclude an earned income tax credit and pendente lite spousal support from the recipient’s income.
- When the evidence supports more than one divorce ground, the trial court has discretion to award the divorce on a supported ground, including a no-fault separation ground, even if the parties alleged fault grounds.
- A spouse’s leaving the marital home is not automatically desertion that bars spousal support; the court may consider context and apply the statutory spousal-support factors, with appellate review focused on abuse of discretion.

## Conclusion

The appellate court upheld the trial court’s custody, divorce, and support rulings, holding that a child’s preference does not control custody, income need not be imputed without proof of voluntary underemployment and job availability, certain tax-related credits and pendente lite support may be excluded from income, and a trial court may select a supported no-fault divorce ground while awarding spousal support absent a proven desertion bar.


Sargent v. Sargent, 20 Va. App. 694 (Va. Ct. App. 1995)