Charles R. Tuck, Jr. v. Mary J. Sesny

• Court: Court of Appeals of Virginia
• Decided: June 1, 1999
• Docket: 1462981
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Annunziata and Bumgardner Argued at Norfolk, Virginia

CHARLES R. TUCK, JR. MEMORANDUM OPINION * BY v. Record No. 1462-98-1 JUDGE RUDOLPH BUMGARDNER, III JUNE 1, 1999 MARY J. SESNY

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON William C. Andrews, III, Judge

Pamela P. Bates (Jeffrey M. Jordan; Peninsula Legal Aid Center, Inc., on briefs), for appellant.

DeRonda M. Short (Short, Short, Telstad & Kerr, P.C., on brief), for appellee.

Charles R. Tuck, Jr. petitioned to have his child support

obligation reduced. The trial court found that there was no

change in circumstances and granted Mary J. Sesny’s motion to

strike the evidence. The husband appeals arguing that the trial

court erred (1) in finding no change in circumstances; (2) in

ordering him to continue paying his child support obligation

without first determining the presumptive amount; and (3) in

ordering him to pay medical and dental bills incurred on behalf

of the children and arrearages owed on his support obligation.

We conclude that the evidence established a change in

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. circumstances, and accordingly, we remand for reconsideration of

the support obligation and the accrued arrearage. We affirm the

order establishing the amount owed for medical expenses and

ordering that it be paid.

The parties have three minor children. The trial court

entered a final decree of divorce April 23, 1992. The trial

court entered a consent order November 10, 1993 that set child

support at $950 per month, which was $200 more than the

presumptive guideline amount. With the husband's consent, the

trial court found that applying the guidelines would be unjust.

In 1991, the husband worked in the restaurant business in

Boston, Massachusetts earning $65,000 per year. When the trial

court entered the consent order in November 1993, he was only

earning $16,800 annually working at Kinko’s, an office copying

and duplicating business. Still, the husband consented to the

agreed child support of $950 per month because he believed that

he could earn $35,000 to $40,000 a year in the restaurant

business.

The husband moved to Atlanta, Georgia in late 1993 or early

1994 to seek employment in the restaurant industry. He never

found work comparable to what he had in Boston. The husband

attended bartending school and started working in the general

restaurant business in mid-1994. Since November 1993, he never

held a job that paid as much as the $16,800 he received working

at Kinko's. The husband’s average income through December 1996

- 2 - was $1,000 per month. However, he stayed current in his child

support payments through August 1997, when the husband stopped

working.

The husband admits he has been an alcoholic all his life.

He began alcohol rehabilitation treatment in September 1997. He

was hospitalized from September to October 1997 for liver and

neuropsychological complications. At the time of the May 5,

1998 hearing, the husband had been sober and attending treatment

for nine months, but he remained unemployed and lived with his

parents. In February 1998, the husband had exhausted all of his

assets and filed for bankruptcy. In May 1998, he applied for

Social Security disability benefits but his application was

denied.

On behalf of the husband, the Division of Child Support

Enforcement moved to intervene, to reinstate this case, and to

determine whether to reduce the child support obligation. The

trial court granted the motion to intervene but ruled that there

was no change of circumstances since it had established the

amount of support.

The husband contends the trial court erred in finding there

was no change of circumstances. He argues that he was unable to

find employment at the salary he received in Boston, he was

hospitalized because of alcoholism, he was unemployed since

September 1997, and he exhausted his financial resources forcing

him to live with his parents.

- 3 - On appeal, we consider the evidence in the light most

favorable to the wife, the prevailing party below. See Cook v.

Cook, 18 Va. App. 726, 731, 446 S.E.2d 894, 896 (1994). When

the evidence is heard at an ore tenus hearing, the trial court’s

decision "is entitled to great weight and will not be disturbed

unless plainly wrong or without evidence to support it."

Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651

(1986).

A trial court may adjust child support payments when the

petitioning party has proven by a preponderance of the evidence

a material change in circumstances and that the change justifies

an alteration in the support award. See Featherstone v. Brooks,

220 Va. 443, 446-47, 258 S.E.2d 513, 515 (1979); Head v. Head,

24 Va. App. 166, 173-74, 480 S.E.2d 780, 784 (1997).

When the consent order was entered in November 1993, the

husband believed that he could earn an annual salary of $35,000

to $40,000. On that basis, he agreed to an upward deviation in

child support. The husband's circumstances changed since the

trial court entered the support order. He moved to Atlanta to

find better paying work but was unsuccessful in finding a job

with a salary that justified the upward support deviation. By

the time of the hearing, the defendant was unable to work, had

been hospitalized, and had depleted his savings. We find those

circumstances satisfied his burden of proving a change in

circumstances. Therefore, we reverse the trial court's finding

- 4 - of no change in circumstances and remand for reconsideration of

the amount of support and accrued arrearages.

The husband also contends that the trial court erred in

ordering him to pay the medical bills of $5,543.66. The

original divorce decree obligated the husband to pay for one

half of the children’s medical and dental bills. The wife

presented evidence that the three children incurred orthodontist

bills of $11,087.31. She testified that she had sent some of

these bills certified mail to the husband in Atlanta and they

had been returned unopened. The trial court did not abuse its

discretion in ordering the husband to pay half of these bills

incurred on behalf of his children.

For the foregoing reasons, we reverse in part, affirm in

part, and remand for reconsideration.

Affirmed in part, reversed in part, and remanded.

- 5 -