Bennett v. COM., DEPT. OF SOCIAL SERVICES

472 S.E.2d 668, 22 Va. App. 684, 1996 Va. App. LEXIS 513
CourtCourt of Appeals of Virginia
DecidedJuly 16, 1996
DocketRecord 1364-95-4
StatusPublished
Cited by60 cases

This text of 472 S.E.2d 668 (Bennett v. COM., DEPT. OF SOCIAL SERVICES) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bennett v. COM., DEPT. OF SOCIAL SERVICES, 472 S.E.2d 668, 22 Va. App. 684, 1996 Va. App. LEXIS 513 (Va. Ct. App. 1996).

Opinions

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 [689]*689children. 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 benefits1 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 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.”

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.

[690]*690On 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 [691]*691the 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 [692]*692appeal 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)).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pamela Kay Humphries v. Robert Brian Buchanan
Court of Appeals of Virginia, 2023
Brian D. Bailey v. Amy K. Sarina
Court of Appeals of Virginia, 2023
Timothy M. Barrett v. Commonwealth of Virginia
Court of Appeals of Virginia, 2020
James Warren Illetschko v. Jennifer Jo Illetschko
Court of Appeals of Virginia, 2017
Robin Lee Elliott v. Bryan Curtis Wendell
Court of Appeals of Virginia, 2016
Randy D. Johnson v. Cindy Lolita Johnson
Court of Appeals of Virginia, 2016
Michael Hugh Palmer Murphy v. Corie Ann Murphy
779 S.E.2d 236 (Court of Appeals of Virginia, 2015)
David Milot v. Glenda A. Milot
765 S.E.2d 861 (Court of Appeals of Virginia, 2014)
Navin K. Sitoula v. Suruchi Sitoula
Court of Appeals of Virginia, 2014
In Re Lister
27 A.3d 673 (Supreme Court of New Hampshire, 2011)
Prisco v. Stroup
3 A.3d 316 (District of Columbia Court of Appeals, 2010)
Stanley Hubbard v. Cyrenne Hubbard
Court of Appeals of Virginia, 2008
Barbara J. Livingston v. Theodore G. Nanz
Court of Appeals of Virginia, 2008
Martin v. Martin
874 N.E.2d 1137 (Massachusetts Appeals Court, 2007)
D'Ambrosio v. D'Ambrosio
610 S.E.2d 876 (Court of Appeals of Virginia, 2005)
James Jospeh Ledwith v. Beth Faber Ledwith
Court of Appeals of Virginia, 2004
Beth Faber Ledwith v. James Joseph Ledwith
Court of Appeals of Virginia, 2004
Shakeva Quarleat Frazier v. Commonwealth
Court of Appeals of Virginia, 2003

Cite This Page — Counsel Stack

Bluebook (online)
472 S.E.2d 668, 22 Va. App. 684, 1996 Va. App. LEXIS 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-com-dept-of-social-services-vactapp-1996.