Bennett v. Com., Virginia Dept. of Social Services, Div. of Child Support Enforcement ex rel. Bennett

• Decision Date: 16 July 1996
• Docket Number: No. 1364-95-4,1364-95-4
• Citation: 472 S.E.2d 668,22 Va.App. 684
• Parties: Charles D. BENNETT v. COMMONWEALTH of Virginia, VIRGINIA DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel. Audrey BENNETT. Record
• Court: Virginia Court of Appeals

Page 668

472 S.E.2d 668

22 Va.App. 684

Charles D. BENNETT v. COMMONWEALTH of Virginia, VIRGINIA DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel. Audrey BENNETT.

Record No. 1364-95-4.

Court of Appeals of Virginia Alexandria.

July 16, 1996.

[22 Va.App. 688] Yvonne DeBruyn Weight, Alexandria (Eric Michael Weight; Weight & Weight, on briefs), for appellant.

Anne Wren Garrett, Special Counsel (Betsy S. Elliott, Senior Special Counsel; Nancy J. Crawford, Regional Special Counsel, Division of Child Support Enforcement; James S. Gilmore, III, Attorney General; William H. Hurd, Deputy Attorney General; Siran S. Faulders, Senior Assistant Attorney General; Craig M. Burshem, Regional Special Counsel, on brief), for appellee.

Present: BENTON, COLEMAN and OVERTON, JJ.

COLEMAN, Judge.

Charles D. Bennett appeals the trial court's order which refused to modify his monthly child support obligation. He contends that the trial court erred by (1) requiring him to prove a material change in his former wife's circumstances, in addition to the change in his circumstance, before considering the issue of imputing income to her, (2) not imputing income to her, (3) not including in her gross income the social security and federal housing benefits that she receives, and (4) retroactively modifying his child support obligation for October 1994. We find no reversible error and affirm the trial court's order.

FACTS AND PROCEDURAL HISTORY

Charles D. Bennett (father) and Audrey Bennett (mother) married in 1983 and separated in 1988. They had three children. The three children have resided with their mother following the separation. Isaac, the youngest child, suffers from Downs Syndrome.

Following the initial support order, the father filed a motion for abatement of support because his job was being terminated as a result of corporate downsizing. At the modification hearing, the parties stipulated that they had no extraordinary medical expenses, no day care expenses, and no health insurance expenses. They also stipulated that the mother receives $731 per month in Section 8 federal housing benefits ¹ and $330 per month in Supplemental Security Income (SSI) benefits for Isaac's disability. ² At the time of the hearing, Isaac was attending school about three hours each weekday, but the court found he "require[d] a high level of monitoring and attention" from the mother.

As a consequence of the foregoing proceeding, the trial court reduced the father's monthly child support obligation to $170. In that proceeding, the court refused to impute income to the unemployed father, but the Following that proceeding, on December 14, 1994, the father accepted permanent employment with MFSI, Inc. Just before doing so, he had earned, on a one-time basis during October 1994, $2,554.96 from temporary employment with Stephens Engineering Company.

                judge stated in his letter opinion that he "will continue this matter for six months ... to review (among other matters) [the father's] efforts to find employment."   Also, in that proceeding, the trial judge refused to include as part of the mother's gross income the social security benefits or federal housing benefits which she receives for Isaac's disability, and refused to impute income to the mother because she was "fully and properly occupied with the demands and special needs of Isaac."
                

On January 17, 1995, the mother filed a motion for review of child support, alleging a material change in circumstance. At a February 9, 1995 hearing, the parties stipulated that, after the mother had obtained approval in August 1994 from the Prince William County public school system to teach the children at home, she had removed the two oldest children from public school. They also stipulated that as of the date of the filing of the motion, Isaac was attending school all day for three days per week and was in day care the other two days.

By decree dated May 22, 1995, the trial court increased the father's monthly child support obligation to $841, based on the presumptive child support guidelines in Code § 20-108.2 for his gross monthly income of $2,933 and the mother's gross monthly income of $100. The court also ordered that he pay "a one time adjustment" of $574 for child support based upon his October 1994 income. The trial court included the $574 with the $13,884.53 arrearage in child and spousal support found to be due. The court further found that "there has been no material change in [the mother's] circumstances such as to impute income to [her]."

MATERIAL CHANGE OF CIRCUMSTANCE

A party moving to modify a support decree must prove a material change in circumstance following the last support order before the trial court is required to consider modifying the support award. See Thomas v. Thomas, 217 Va. 502, 505, 229 S.E.2d 887, 889-90 (1976). The change in circumstance also must warrant a modification of the support. Furr v. Furr, 13 Va.App. 479, 481, 413 S.E.2d 72, 73 (1992). The father contends that the trial court erroneously found "there ha[d] been no material change in [the mother's] circumstances" by virtue of Isaac being in school or day care the entire day, and therefore, erred by refusing to consider whether to impute income to the mother.

The mother's petition to increase support was based on the change in condition arising from the father's permanent employment. The trial court did not refuse to impute income to the mother because the mother had filed the petition or because the father had not alleged or proved a change in her circumstances. In fact, the judge stated that he considered the father's argument as "a motion to reconsider." The judge thereafter ruled that the changed condition of Isaac being in school and day care did not warrant a finding that the mother was voluntarily unemployed. Accordingly, the court refused to impute income to her. Thus, the trial judge did not impose an additional burden on the father to prove changes in both his and the mother's circumstances and did not refuse to consider whether to impute income to the mother.

IMPUTATION OF INCOME

In November 1994, the court refused to impute income to the mother because it found that she was "fully and properly occupied" with caring for Isaac. However, at the February 9, 1995 hearing, the parties stipulated that as of that date Isaac was spending three weekdays in school and the remaining two days in day care at state expense. The father contends, therefore, that because the mother is no longer required to remain at home to care for Isaac, the trial court erred by declining to impute income to the mother in calculating their respective child support obligations. Consequently, he argues that he is being required to pay a disproportionate amount of support for the children.

Both parents owe a duty of support to their minor children. Code § 20-61; Featherstone v. Brooks, 220 Va. 443, 448, 258 S.E.2d 513, 516 (1979). A trial court has discretion to impute income to either or both the custodial or noncustodial parent who is voluntarily unemployed, provided that income may not be imputed to a custodial parent except when the child is in school or child care services are available. See Code § 20-108.1(B)(3); Sargent v. Sargent, 20 Va.App. 694, 703, 460 S.E.2d 596, 600 (1995) ("A trial court may impute income to the spouse receiving child ... support under appropriate circumstances") (emphasis added). The trial court's decision to not impute income to the mother will be upheld on appeal unless it is " 'plainly wrong or unsupported by the evidence.' " Id. at 703, 460 S.E.2d at 600 (quoting Calvert v. Calvert, 18 Va.App. 781, 784, 447 S.E.2d 875, 876 (1994)).

When the 1994 support order was entered, which did not impute income to the mother, the trial court found that Isaac attended school for approximately three hours each weekday and that "[h]e requires a high level of monitoring and attention." The mother's time and responsibility in caring for Isaac have changed. Isaac attends school and day care all day each weekday. Although the evidence does not show the frequency or extent to which Isaac's mother must take him home from school or day care or respond to his problems, the mother's counsel avowed that

[s]ometimes [Isaac] doesn't respond well to [the instruction and care he is given at school] and his mother has to go to the school and intervene or be with him. When he goes to day care, if he can't sustain the day care situation she has to be there and intervene or take him home.

In Hamel v. Hamel, 18 Va.App. 10, 13, 441 S.E.2d 221, 223 (1994), we held that the trial court erred by refusing to impute income to the noncustodial parent who had voluntarily quit her job. In Brody v. Brody, 16 Va.App. 647, 650-51, 432 S.E.2d 20, 22-23 (1993), we held that the trial court erred by not imputing income to the noncustodial parent who voluntarily left her job to stay home and care for a child from another marriage. A custodial parent has no less responsibility to provide support to a minor child than does the noncustodial parent. Thus, the trial court shall impute income to a custodial parent who is voluntarily unemployed or underemployed where the age of the child and circumstances permit the custodial parent to be gainfully employed. Code § 20-108.1(B)(3).

The facts here are distinguishable from those in Hamel and Brody. Here, the mother has custody of a profoundly disabled child who "requires a high level of monitoring and attention." She did not voluntarily leave a job to assume this responsibility. Although Isaac is in school and day care each weekday, the mother has to be available to respond to his needs or to take him home on occasion. Although the evidence does not show the frequency and extent to which the mother is called to take Isaac out of school or day care, Isaac is profoundly disabled and only recently had his school days and day care extended beyond three hours. The trial judge...