Antonelli v. Antonelli, 901427

• Citation: 409 S.E.2d 117,242 Va. 152
• Decision Date: 20 September 1991
• Docket Number: No. 901427,901427
• Court: Supreme Court of Virginia
• Parties: Harriet Green ANTONELLI v. J. Thomas ANTONELLI, Jr. Record

Page 117

409 S.E.2d 117

242 Va. 152

Harriet Green ANTONELLI v. J. Thomas ANTONELLI, Jr.

Record No. 901427.

Supreme Court of Virginia.

Sept. 20, 1991.

James B. Thorsen, Richmond (Thorsen & Page, on brief), for appellant.

Ralph L. Axselle, Jr., Richmond (William R. Mauck, Jr., Williams, Mullen, Christian & Dobbins, on brief), for appellee.

Present: CARRICO, C.J., and COMPTON, STEPHENSON, RUSSELL, ^* WHITING and HASSELL, JJ., and POFF, Senior Justice.

COMPTON, Justice.

In this domestic relations case involving a father's petition to reduce court-ordered child support, we awarded an appeal to consider the criteria to be applied when the father's income has diminished due to a voluntary change of employment. Determining that the issue involves a matter of significant precedential value within the meaning of Code § 17-116.07(B), we agreed to review the Court of Appeals' decision.

The parties were divorced by a May 1987 final decree which incorporated a property settlement agreement obligating the father to pay $1,600 per month for the support of the parties' four minor children. In July 1987, the father voluntarily left a salaried management position with a Richmond stock brokerage firm for a commissioned sales position with another Richmond stock broker. At the time of the change, the father's earnings at the new job had been projected to be about the same as at his former employment. Following the stock market "crash" in October 1987, however, his annual income diminished approximately $10,000 from the sum he had been earning from the first employer.

In January 1989, the father filed a petition in the Juvenile and Domestic Relations District Court of Henrico County alleging a material change in his financial circumstances and seeking a reduction in his child support obligation. That court reduced the obligation to $830 per month. On appeal, the Circuit Court of Henrico County, after a hearing, denied the reduction request and ordered the father to continue to pay the original amount.

The chancellor ruled that the father had proved "there is a financial change in circumstances" and held "that this is a material change of circumstances." The chancellor noted, explicitly relying on Edwards v. Lowry, 232 Va. 110, 348 S.E.2d 259 (1986), that the father must also prove "that the lack of ability to pay is not due to any voluntary act or neglect."

Additionally, the chancellor determined that the father's change from a management position to a sales position was "a voluntary act and a lateral move" with "similar income potential." In making the change, the chancellor found, the father "accepted the risk involved in being a commissioned stockbroker." Concluding, the chancellor decided that the father had failed to meet the requirements of Edwards and that he had failed to prove he was entitled to a reduction in the support obligation. The father appealed.

Upon appeal, the Court of Appeals reversed the circuit court, holding that the court "imposed an erroneous standard of proof" on the father. Antonelli v. Antonelli, 11 Va.App. 89, 90, 396 S.E.2d 698, 699 (1990). In its opinion, the Court of Appeals summarized the settled principles that we articulated in Edwards which are to be applied to requests to modify court-ordered support obligations.

When invoking the divorce court's continuing jurisdiction under Code § 20- 108, following entry of a final decree of divorce, a party seeking a change in court-ordered child support has the burden to prove by a preponderance of the evidence a material change in circumstances justifying modification of the support requirement. Edwards, 232 Va. at 112, 348 S.E.2d at 261. In discharging this burden, a father seeking a reduction in support payments must also make a full and clear disclosure about his ability to pay, and he must show his claimed lack of ability to pay is not due to his own voluntary act or because of his neglect. Id. at 112-13, 348 S.E.2d at 261. In other words, the father must establish that he is not "voluntarily unemployed or voluntarily under employed." Code § 20-108.1(B)(3).

The Court of Appeals, in the course of its opinion, elaborated on the Edwards statement that the father must show his inability to pay is not due to his "own voluntary act or because of his neglect." Noting that the father in this case "claimed to have made a bona fide employment change from which he expected career satisfaction and financial success," Antonelli, 11 Va.App. at 94, 396 S.E.2d at 701, the Court of Appeals said that, while any career change is a "voluntary act," the law defining child support obligations is not "intended to frustrate ambition or enterprise." Id. The Court of Appeals construed the term "voluntary act" to mean a "willful act done for the purpose of frustrating the feasibility or enforceability of the support obligation." Id.

Accordingly, the Court of Appeals held that a father "who shows a reduced ability to satisfy his obligation, which is not due to his wrongdoing, his neglect of his affairs, or his intentional diminution of his financial ability other than in connection with a bona fide and reasonable business undertaking, is entitled to have that reduction considered along with the other usual factors, including his general earning capability, in determining his child support obligation." Id.

Applying those criteria, the Court of Appeals said that the circuit court found that the father had demonstrated a change of circumstances, but was silent on "the required corollary finding of whether this change justified the reduction sought." Id. The circuit court, according to the Court of Appeals, failed to determine whether the father's voluntary act in changing employment was "a bona fide and reasonable business undertaking or whether it was for the purpose of reducing his ability to support his children." Id. at 95, 396 S.E.2d at 701. Finding such failure to be error, the Court of Appeals remanded the matter to the circuit court "for further proceedings" and for "reconsideration of the merits of the petition for reduction in child support." Id.

We agree with the gloss the Court of Appeals has placed on Edwards. We disagree, however, with the Court of Appeals' application of those principles to this case, the effect of which is to afford the father another opportunity to prove what he failed to prove in the first instance. In sum, we do not believe that the chancellor imposed an erroneous standard of proof on the father.

The record demonstrates that the chancellor applied the elementary principles, recently summarized in Edwards, appropriate to reduction requests such as the one presented in this case. The only unusual feature here is that the fact pattern is one not presented in earlier cases. See Edwards, 232 Va. at 113 n. *, 348 S.E.2d at 261 n. *. As we interpret the chancellor's decision, he did not penalize the father merely because he voluntarily changed employment, as the Court of Appeals seems to indicate. Rather, the chancellor, recognizing that the change was "a lateral move" with "similar income potential," determined that the father "accepted the risk involved in being a commissioned stockbroker."

The effect of the chancellor's decision to deny the reduction was to hold that the father gambled with the children's ability to receive his financial support, and lost. Of course, a father is not prohibited from voluntarily changing employment. But, the chancellor, in the exercise of judicial discretion, implicitly held that when the father who was under court order to pay a certain sum for child support, which he was able to...