Opinion
Record No. 1221-94-4
Decided: March 21, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Marcus D. Williams, Judge
Raymond D. Benzinger (Mary M. Jolma, on brief), for appellant.
Nancy J. Crawford, Special Counsel (Betsy S. Elliott, Senior Special Counsel; James S. Gilmore, III, Attorney General; William H. Hurd, Deputy Attorney General; Jane D. Hickey, Senior Assistant Attorney General, on brief), for appellee.
Present: Judges Barrow, Koontz and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Alexander D. Luciani, Jr., (father) appeals the decision of the circuit court modifying its previously-entered child support award. Father shares custody of his three children with Diane Lynne Luciani (mother). Father raises two issues on appeal: (1) whether the trial court erred in imputing income to him following the loss of his job; and (2) whether the trial court erred in modifying the child support award when there was insufficient evidence of a material change of circumstances. We affirm the decision of the circuit court.
On appeal, we view the evidence and all reasonable inferences in the light most favorable to mother as the prevailing party below. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). "The judgment of a trial court sitting in equity, when based upon an ore tenus hearing, will not be disturbed on appeal unless plainly wrong or without evidence to support it." Box v. Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986).
The initial July 1993 child support award included health care costs, but not child care costs, in the child support calculations. The parties were required to pay a "percentage of actual day care costs" based upon their respective income shares.
In February 1994, both parties filed motions seeking, among other issues, to modify the amount of child support. Father filed a motion to recalculate child support on the basis of a material change in circumstances, including the loss of his job. The Division of Child Support Enforcement sought and was granted the right to intervene on mother's behalf.
The circuit court heard evidence on the issue of modifying the child support calculation. The circuit court revised the previous child support award, although the court imputed income to both parents, thus retaining the same income levels upon which the earlier order had been based. The order included mother's work-related child care costs as well as health care costs within the child support calculation, rather than as a separate obligation. The court denied father's motion to recalculate the amount of child support.
I. IMPUTED INCOME
Father bore the burden to demonstrate he was entitled to a reduction in the amount of child support. "[A] party seeking a reduction in support payments . . . 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." Edwards v. Lowry, 232 Va. 110, 113, 348 S.E.2d 259, 261 (1986) (quoting Hammers v. Hammers, 216 Va. 30, 31-32, 216 S.E.2d 20, 21 (1975)).
While father alleged that he was fired for reasons other than misconduct or poor performance, credible evidence supports the trial court's determination that father's voluntary misconduct caused him to lose his job. Specifically, the letter terminating father's employment noted the following:
As you know from our discussions over the past several years, your performance has come into question on multiple occasions; this was the result of client comments, student evaluations and intervention by your manager as well as myself. In each instance we reviewed what was needed for you to meet our performance standards. As we tried to help you we noted some progress but also a continuing need to direct you to make further improvement. Unfortunately, we have not seen the improvement necessary for us to retain you.
Thus, because the evidence indicated father's reduced income was due to father's own misconduct or neglect, the trial court did not err in refusing to reduce the amount of child support and in imputing income to father equal to his previous income level.
II. MODIFICATION OF ORDER WITHOUT CHANGE IN CIRCUMSTANCES
Both mother and father alleged that material changes in circumstances had occurred since the previous child support award. Credible evidence was offered to support those allegations, including evidence that mother now paid for health insurance, father had lost the higher paid of his two jobs, and child care costs had increased. While the child support award entered was virtually identical to that previously ordered, different costs for child care and health insurance were included in the calculations.
Credible evidence indicated that the parties had had difficulty agreeing upon the amounts due under the previous order. Father unilaterally changed the amount of the child support payments and mother testified she had no idea from month to month what amount of support was due. An arrearage had existed in February 1994 until father made additional payments in March 1994.
The trial court had authority to "revise and alter such decree concerning the care, custody, and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require." Code Sec. 20-108. The evidence indicating that the previous order was causing confusion between the parties justified the trial court's decision to revise the previous order. Moreover, the new order complied with Code Sections 20-108.2(E) and (F), which direct that costs for health care coverage and work-related child care costs "shall be added to the basic child support obligation." See Sec. 20-108.2(G) (3) (b) (shared custody guidelines).
We find no error in the trial court's decision modifying the previously-entered child support award. Accordingly, the decision of the circuit court is affirmed.
Affirmed.
The evidence does not, in my opinion, support a finding that the father voluntarily terminated his employment. His employer terminated him because he did not perform at a standard which the employer desired. No evidence indicated that the father's failure to achieve this standard was voluntary. Certainly no evidence demonstrates any "misconduct" by the father. The decision in this case, in my opinion, conflicts with our unpublished decision in Richards v. Richards, Record No. 0786-93-3, June 14, 1994. Consequently, I would reverse the trial court and must dissent from this decision.