Yohay v. Ryan, 1399-85

• Decision Date: 04 August 1987
• Docket Number: No. 1399-85,1399-85
• Citation: 359 S.E.2d 320,4 Va.App. 559
• Parties: Stephen C. YOHAY v. Patricia RYAN. Record
• Court: Virginia Court of Appeals

Page 320

359 S.E.2d 320

4 Va.App. 559

Stephen C. YOHAY v. Patricia RYAN.

Record No. 1399-85.

Court of Appeals of Virginia.

Aug. 4, 1987.

Stephen C. Yohay, on brief, pro se.

Bernard J. DiMuro (Hirschkop & Associates, P.C., Alexandria, on brief), for appellee.

Present: BENTON, DUFF and KEENAN, JJ.

KEENAN, Judge.

Stephen C. Yohay (father) appeals from the denial of his petition to reduce child support. The issues presented in this appeal are: (1) whether the trial court erred in denying a reduction in child support after it found that there had been a material change in the financial circumstances of the parties; (2) whether the trial court erred in failing to consider all of the factors set forth in Code § 20-107.2(2) ¹ when considering a petition for modification of child support made pursuant to Code § 20- 108 ²; (3) whether the trial court improperly relied on the property settlement agreement in denying the father's petition; (4) whether the trial court failed to apply the principle that both parties owe a duty of support to their minor children; and (5) whether the trial court gave improper consideration to the father's "second family" expenses when denying his request for a reduction in child support. We conclude that the trial court committed error both in imposing an improper burden of proof on the father and in relying on the terms of a four year old property settlement agreement when denying the father's petition for a reduction of child support.

I.

This appeal arises out of protracted litigation between the parties regarding the custody and support of their minor child, Michael, who was nine years old when the court denied the father's request for a reduction in child support. The parties separated in April 1980 and in August 1981, entered into a property settlement agreement. This agreement provided for joint custody of Michael and a unitary support and maintenance payment which automatically changed to a payment of $600 per month for child support only, commencing in May, 1984. A further provision was included which stated:

(g) The Wife [mother] acknowledges that the amount herein provided for the child support constitutes an amount in excess of the need and requirements for the support of the child as contemplated by the provisions of the Internal Revenue Code of 1954, as amended, and the rules and regulations thereunder. She therefore agrees that the Husband [father] shall have the sole exclusive right to claim the child on his income tax returns, and the Wife [mother] further agrees that she shall not claim the said child on her tax return.

The mother testified that her financial situation was very poor at the time of the agreement. The father acknowledged that his financial posture was sound at that time.

The father remarried in July, 1982. He and his second wife now have an infant child. In early 1983, the mother moved for sole custody of Michael. The court denied her request, established a weekly schedule of "alternating sole custody," and ruled that Michael would attend a public school near the father's home.

The mother remarried in September, 1983. Pursuant to the father's motion for a reduction of child support, the trial court received considerable testimony and documentary evidence concerning the financial circumstances of the parties. The income of both parties increased after the property settlement agreement was signed in 1981. The father's annual draw from his law firm increased from $65,000 in 1983 to $93,000 in 1985. The mother's 1981 tax returns showed that her gross income from her law practice was $37,920. Her 1984 gross income was $64,654.

Both parties incurred significant debts for legal fees associated with the litigation over their child. The mother's counsel represented to the court that her legal fees exceeded $50,000. The father stated that he had incurred legal fees of between $40,000 and $50,000.

In addition, the father testified that in an effort to generate more money, he had not made quarterly tax payments in 1983 or 1984. While some of this debt had been paid by the time of the hearing, the father estimated that he still owed over $17,000 in back taxes. The father further claimed to owe $37,000 to his father, $3,000 to his brother-in-law, and $4,500 to his law firm. Adding certain other debts, the father estimated his total debt at $91,670.

The testimony also showed that in May, 1984 the father purchased a home for $144,550. His expense statement showed a mortgage payment of $1,559 per month. The father testified that he was forced to move out of the house he had been renting because of the owner's return. He stated that he decided to buy a house rather than rent one because he wanted a tax shelter and because he wanted to remain in the same neighborhood for Michael's benefit. He further testified that rentals in the neighborhood were roughly equal to his mortgage payment.

The father filed an expense statement for 1981, which showed a $587 monthly surplus. His expense statement for 1985 showed a monthly deficit of $3,192. The record does not contain a clear statement of the mother's monthly income and expenses; however, she did file a statement which showed expenses for Michael in 1985 to be $689 per month. The father calculated that aside from Michael's portion of the general household expenses, the mother's monthly expenses for Michael were $213 per month.

The father's expense statement showed an average of $268 in monthly expenses for Michael in 1984. In addition, it showed a monthly average of $280 for Michael's medical expenses. The father's estimate did not include costs for Michael for such items as food, mortgage, entertainment, utilities or vacations.

On July 25, 1985, the trial court denied the father's request for a reduction in support. Prior to hearing the closing arguments of counsel, the trial court ruled as to the father's burden of proof:

[T]he court rules as a matter of law that on Mr. Yohay's petition for equalization of support the burden of proof is on Mr. Yohay to establish by the preponderance of the evidence that there has been a material change in the circumstances of the parties and that it would be in the best interest of the child to grant the relief sought.

In announcing its decision to deny a reduction in support, the court found that while there had been material changes in the circumstances of the parties, the father's increased indebtedness was primarily due to "second family" expenses and the costs of litigating the custody and support issues. The court held that these reasons did not constitute grounds for reducing the father's child support obligation. However, regarding the mother's need for child support, the court stated:

I am of the opinion ... that while I recognize without debate and dispute that there have been material changes in circumstances of the parties ... and I'm not finding this as a matter of fact that Miss Ryan does not need the $600 a month. I want the record to be clear. I am not making that finding. All I am saying is that it may be that the $600 a month ... may be in excess of her financial needs vis-a-vis the child.

The court also indicated that its decision was "in large measure because of the language in the separation agreement." Finally, the court indicated that in reaching its decision, it considered the totality of the parties' circumstances, as well as the needs of the child.

II.

The father first argues that the trial court erred when it denied a reduction in child support after finding that there had been a material change in the financial circumstances of the parties. The father further contends that the trial court improperly imposed upon him a duty to prove that a reduction in support would be in the best interests of his child. In response, the wife contends that the trial court's application of the burden of proof was correct because a change in circumstances which does not affect the children cannot stand as the basis for a reduction in support.

We agree with the trial court's statement that the existence of a material change in circumstances does not automatically mandate a change in the amount of support. We disagree, however, with the court's further ruling that the moving party must prove that a change in the amount of support would be in the best interests of the child.

In Edwards v. Lowry, 232 Va. 110, 348 S.E.2d 259 (1986), the Supreme Court stated the evidentiary standard applicable to a petition to modify support made pursuant to Code § 20-108:

In order to invoke the court's continuing jurisdiction to modify its decree, the party seeking a change has the burden of proving, by a preponderance of the evidence, a material change in circumstances justifying a modification of the decree. As we further noted in Hammers, a party seeking a reduction in support payments has additional burdens: "[H]e must make a full and clear disclosure relating to his ability to pay. He must also show that his 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 (quoting Hammers v. Hammers, 216 Va. 30, 31-32, 216 S.E.2d 20, 21 (1975)) (citations omitted).

The moving party in a petition for modification of support is required, therefore, to prove both a material change in circumstances and that such change justifies an alteration in the amount of support. A material change in circumstances, standing alone, does not provide a basis for the trial court to modify its support decree. A modification is appropriate only after the court has considered the material change in circumstances in relation to the factors set forth in Code § 20-108, namely, the present circumstances of both parties and the benefit of the children. Thus, in a petition for reduction of support, the trial court must assess whether the requested reduction, based on a material change in circumstances, is justified in light of the overall...