Carmon v. COM., DEPT. OF SOCIAL SERVICES

467 S.E.2d 815, 21 Va. App. 749, 1996 Va. App. LEXIS 158
CourtCourt of Appeals of Virginia
DecidedMarch 5, 1996
DocketRecord 1061-95-2
StatusPublished
Cited by8 cases

This text of 467 S.E.2d 815 (Carmon 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
Carmon v. COM., DEPT. OF SOCIAL SERVICES, 467 S.E.2d 815, 21 Va. App. 749, 1996 Va. App. LEXIS 158 (Va. Ct. App. 1996).

Opinion

COLEMAN, Judge.

Tracy L. Carmon appeals the trial court’s order declaring her to be $1,755.72 in arrears in child support. Carmon contends that the trial court erred in determining that she had income of $300 per month from November 1989 through August 1991. We hold that the trial court did not err; therefore, we affirm the trial court’s order.

Hazel Jones, the appellant’s mother, had custody of the appellant’s son, Linwood, for thirty-eight months from July 1988 through August 1991. Jones received benefits through the Aid to Families With Dependent Children (AFDC) program for Linwood’s support while she had custody. The Virginia Department of Social Services, Division of Child Support Enforcement (DCSE) entered an administrative support order (ASO) on January 11, 1994, requiring the appellant to reimburse $2,470 of the AFDC benefits paid to Jones from *752 July 1988 through August 1991. DCSE computed the amount of $2,470 based upon the guideline schedule in Code § 20.108.2(B) showing $65 per month for a person with income from $0—$599 for thirty-eight months. DCSE based the $65 amount on its administrative policy construing Code § 20-108.2(B) to impose a mandatory minimum monthly child support obligation of $65 on all debtor parents with monthly income at or below $599.

Appellant contested the ASO. After an administrative hearing, DCSE held that the ASO was valid. The juvenile and domestic relations district court heard the case de novo and issued an order requiring appellant to pay $2,470. Appellant appealed to the circuit court.

In the circuit court, appellant testified that from July 1, 1988, through October 31, 1989, she was employed as a housekeeper at a motel in Richmond and that her earnings were approximately $598 per month. In November 1989, her employer terminated her employment. She unsuccessfully sought other employment in the Richmond area immediately after losing her job and periodically thereafter until August 1991.

After losing her job, appellant entered into an arrangement with the rooming house where she resided to collect the weekly rent from the other boarders and to clean the rooms that had been vacated in exchange for a free room for herself. This arrangement began in November 1989 and continued through August 1991. The average monthly value of her room during this period was approximately $300.

At the circuit court hearing, appellant challenged the portion of the ASO covering the time period she was not employed between November 1989 and August 1991, which amounted to $1,406.17. The circuit court found that during that time, appellant had “in kind income” of $300 per month based on the agreement she had at the rooming house, and determined, based on the guidelines in Code § 20-108.2(B), that her monthly support obligation for the disputed time period was $32.50. Accordingly, the court found the total *753 support obligation to be $1,755.72, rather than the $2,470 determined in the ASO.

I. Jurisdiction

DCSE contends that the trial court did not have jurisdiction to decide appellant’s claim, and that, consequently, this Court does not have jurisdiction to decide this appeal. Although DCSE did not raise the issue of jurisdiction in the circuit court, a jurisdictional question may be raised on appeal for the first time. See Owusu v. Commonwealth, 11 Va.App. 671, 672, 401 S.E.2d 431, 431 (1991).

According to DCSE, the hearing officer was barred under Code § 63.1-252.1 from conducting an administrative hearing because appellant did not file an answer within ten days of receiving notice of the ASO. Code § 63.1-252.1 provides, in pertinent part:

If no answer is received by the Commissioner within ten days of the date of service or acceptance, the administrative support order shall be as provided in the notice. The Commissioner may initiate collection procedures pursuant to this chapter____ If the debtor, within ten days of the date of service of the notice, files an answer, with the Commissioner alleging defenses to the liability imposed pursuant to § 63.1-251, the debtor shall have the right to an administrative hearing.

Id. DCSE contends that the fact that the hearing officer erroneously granted the appeal does not confer jurisdiction because hearing officers, like courts, do not have the authority to extend jurisdiction beyond that created by statute. See Nolde Bros. v. Chalkley, 184 Va. 553, 560-61, 35 S.E.2d 827, 830 (1945).

“An important consideration in interpreting the meaning of a statute is whether it is mandatory and jurisdictional or directory and procedural.” Cheeks v. Commonwealth, 20 Va.App. 578, 582, 459 S.E.2d 107, 109 (1995); see also Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638 (1994). Code § 63.1-252.1 does not expressly mandate that all appeals of *754 ASOs be filed within ten days of receiving notice of the ASO. In contrast, Code § 63.1-268.1, which grants the Juvenile and Domestic Relations Court jurisdiction over appeals from administrative hearings, provides that “[s]uch appeal[s] shall be taken within ten days of receipt of the hearing officer’s decision.” Id. (emphasis added). See also Mayo v. Department of Commerce, 4 Va.App. 520, 523, 358 S.E.2d 759, 761 (1987) (“It is well settled that ‘[w]hen the word “shall” appears in a statute it is generally used in an imperative or mandatory sense’ ”). The only mandatory language in Code § 63.1-252.1 provides that the debtor is entitled to an administrative hearing if he files an answer within ten days of receiving notice.

Although Code § 63.1-252.1 provides that the ASO “shall become effective unless [contested within ten days],” it does not create a jurisdictional bar. If the ASO is not contested within ten days of receipt, DCSE has discretion to conduct an administrative hearing. Here, DCSE granted an administrative hearing even though appellant did not file an answer within ten days of receiving notice of the ASO. Therefore, the trial court had jurisdiction over appellant’s appeal.

II. Income

The trial court found that appellant “had no cash income but in kind income of $300.00 a month in the form of room and board, which the Court impute[d] to her as actual income pursuant to VA Code § 20-108.1(B)(3).” Appellant contends the trial court erred by applying Code § 20-108.1(B)(3) because the record does not show that she was either “voluntarily unemployed or underemployed.” See Brooks v. Rogers, 18 Va.App. 585, 593, 445 S.E.2d 725

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Bluebook (online)
467 S.E.2d 815, 21 Va. App. 749, 1996 Va. App. LEXIS 158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carmon-v-com-dept-of-social-services-vactapp-1996.