Opinion
Record No. 0094-94-3
Decided: December 6, 1994
FROM THE CIRCUIT COURT OF ROANOKE COUNTY, G. O. Clemens, Judge
Affirmed.
Monica L. Taylor (Melissa Warner Scoggins; Gentry, Locke, Rakes Moore, on brief), for appellant.
(Richard Lee Lawrence, on brief), for appellee.
Present: Chief Judge Moon, Judge Barrow and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Appellant, Gregory Lynn Wood, appeals from an order entering a judgment for a child support arrearage in the amount of $1,800 in favor of appellee, Tracy Lynn Widener Wood. Appellant argues that the circuit court erred in refusing to retroactively vacate or reduce his child support obligation from the date he filed his petition to April of 1993, during which time appellant established that he was unable to participate in gainful employment. We affirm the circuit court's order because we find no abuse of discretion.
Appellant and appellee married, had one child together, and then divorced. In the final divorce decree, appellant was ordered to pay $300 each month in child support. Appellant was severely injured in auto accident on October 5, 1992. Appellant fell into arrears in his child support payments as of October 1992 and continued to be in arrears through 1993.
On October 20, 1992, appellant filed a petition in the circuit court to have the matter reinstated upon the docket and requested a hearing for reduction of child support on grounds that he had been severely injured and could not work. In April of 1993, appellant received a lump sum payment of $1,800 from SSI for October of 1992 through March of 1993 because of his disability. The child began receiving independent SSI payments in April of 1993.
On September 27, 1993, at a hearing on appellant's petition, the court found that appellant had "proved by a preponderance of the evidence that he [was] unable to participate in any type of gainful employment and ha[d] been in such state since October 5, 1992." After the hearing, the court abated appellant's child support obligation, retroactive to April 1993 but entered judgment for appellee in the amount of $1,800 for the child support due for the months of October of 1992 through March of 1993, six months in which appellant was in arrears.
We hold that the circuit court did not err in refusing to vacate or reduce appellant's child support obligation from October 5, 1992 to April of 1993. The trial judge had discretion whether to retroactively modify appellant's child support obligation back to October 20, 1992, the date appellant filed his petition. Under Code Sec. 20-108:
No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for modification, but only from the date that notice of such petition has been given to the responding party.
While the evidence at trial proved that appellant was unable to participate in gainful employment during the months in question, the trial judge was not required as a matter of law to retroactively modify appellant's child support obligation. The record reveals that the trial judge, based on appellant's lump sum award, did not find a change in appellant's capacity to earn rendered appellant unable to pay the original amounts fixed by the court. Based on the record, we do not find that the trial judge abused his discretion in refusing to order the reduction in child support retroactive to the date of the filing of the petition.
Affirmed.