COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff Argued at Richmond, Virginia
COMMONWEALTH OF VIRGINIA, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel., DARLENE BOWYER MEMORANDUM OPINION * BY v. Record No. 0071-96-4 JUDGE ROSEMARIE ANNUNZIATA APRIL 8, 1997 DALE ROBERT BOWYER
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N. A. Kendrick, Judge
William K. Wetzonis, Special Counsel (Nancy J. Crawford, Regional Special Counsel; Anne Wren Garrett, Special Counsel; James S. Gilmore, III, Attorney General; William H. Hurd, Deputy Attorney General; Robert B. Cousins, Jr., Senior Assistant Attorney General; Craig M. Burshem, Regional Special Counsel, on briefs), for appellant.
(Patricia L. Ruble, on brief), for appellee.
Darlene Bowyer and the Virginia Department of Social
Services (collectively referred to as mother) appeal the trial
court's order granting Dale Bowyer (father) a temporary abatement
of his child support obligation. Mother contends that father
bore the risk of success in his change from salaried employment
to self-employment and that his resulting lack of income is an
insufficient ground to reduce his support obligation. For the
reasons that follow, we affirm the decision of the trial court.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. I.
A final decree of divorce entered in December 1994 required
father to pay $1,200 per month to support the parties' minor
child. In September 1995 father resigned from his employment of
seventeen years at Arlington Heating and Air Conditioning.
Father testified he resigned because of medical problems, which
the court found to be "life-threatening." Specifically, father
cited migraine headaches, high blood pressure and the stress of
the commute from his home in Hume, Virginia to job sites in
Northern Virginia, Maryland and the District of Columbia. He
further testified that his former employer "was going more
toward" installation projects that he could not perform due to
back and neck problems. In October 1995, father petitioned the court for a temporary
termination or reduction in child support. He had recently
started his own heating and air conditioning company and, at the
time of the hearing, had earned no income from his business.
Mother testified that father had earned an annual salary of
$50,000 at Arlington Heating and Air Conditioning. Without
calculating the presumptive guideline amount based on the
financial information before it, the court granted father a
four-month abatement of child support "due to [his] medical
problems."
II.
The trial court's decision not to impute income to father
- 2 - will be upheld on appeal unless it is "plainly wrong or
unsupported by the evidence." Bennett v. DCSE ex rel. Bennett,
22 Va. App. 684, 691-92, 472 S.E.2d 668, 672 (1996). "'Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.'" It is well established that the credibility of witnesses and the weight accorded to their testimony are matters solely within the purview of the trial court, and its findings will be reversed on appeal only if "plainly wrong or without evidence to support them."
Brooks v. Rogers, 18 Va. App. 585, 587, 445 S.E.2d 725, 726
(1994) (citations omitted).
Mother first complains that the trial court erred in failing
to calculate the presumptive guideline amount of support based on
the parties' income at the time of the hearing. Indeed, the
general rule is well settled: once the court finds a material
change in circumstances, "[t]he starting point . . . for determining the child support obligation of a party . . . is to
compute the presumptive amount [under the guidelines]."
Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473
(1991) (emphasis added).
In the present case, however, there was no determination of
child support to be made. Father sought and received a total
abatement of support for four months. Nonetheless, even
assuming, without deciding, that the court was obligated to
- 3 - compute the presumptive amount of support before determining
whether to abate father's obligation, we find any error of the
trial court in failing to do so to be harmless under the facts of
this case. Here, the evidence was undisputed that father's
current income was zero. Had the court applied the guidelines,
the presumptive amount of support owed by father would have been
zero as well. See Code § 20-108.2(G)(1).
Mother next complains that the trial court erred in refusing
to impute income to father. 1 She argues that father bore the
risk of success in voluntarily deciding to change from salaried
employment to self-employment and that his resulting lack of
income is an insufficient ground to reduce his support
obligation.
"[A] party seeking a change in court-ordered child support
has the burden to prove by a preponderance of the evidence a
material change in circumstances justifying modification of the
support requirement." Antonelli v. Antonelli, 242 Va. 152, 154,
409 S.E.2d 117, 119 (1991). That party "must . . . show that his
lack of ability to pay is not due to his own voluntary act or
because of his neglect." DCSE ex rel. Ewing v. Ewing, 22 Va.
App. 466, 470, 470 S.E.2d 608, 610 (1996) (citations omitted).
"Thus, in order to prove a material change in circumstances that 1 Mother does not dispute that father established a material change in circumstances warranting a review of the support order. She contends the trial court should have deviated from the presumptive amount of support by imputing income to father.
- 4 - justifies a reduction in support, a parent must establish that he
is not voluntarily unemployed or voluntarily under employed."
Id. (citations omitted). In Antonelli, the Supreme Court held
that when the obligor parent "chose to pursue other employment,
albeit a bona fide and reasonable business undertaking," he bore
the risk of his success at his new job, not the children. 242
Va. at 156, 409 S.E.2d at 119-20. "Thus, `the risk of reduction
in income as a result of a parent's intentional act, even if done
in good faith, is insufficient grounds for reducing the amount of
support due under a pre-existing order.'" Ewing, 22 Va. App. at
471, 470 S.E.2d at 610 (quoting Hamel v. Hamel, 18 Va. App. 10,
13, 441 S.E.2d 221, 222 (1994)).
Unlike the imputation of income cases upon which mother
relies, the court in the present case found that father's
decision to resign from his salaried position was not the result
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff Argued at Richmond, Virginia
COMMONWEALTH OF VIRGINIA, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel., DARLENE BOWYER MEMORANDUM OPINION * BY v. Record No. 0071-96-4 JUDGE ROSEMARIE ANNUNZIATA APRIL 8, 1997 DALE ROBERT BOWYER
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N. A. Kendrick, Judge
William K. Wetzonis, Special Counsel (Nancy J. Crawford, Regional Special Counsel; Anne Wren Garrett, Special Counsel; James S. Gilmore, III, Attorney General; William H. Hurd, Deputy Attorney General; Robert B. Cousins, Jr., Senior Assistant Attorney General; Craig M. Burshem, Regional Special Counsel, on briefs), for appellant.
(Patricia L. Ruble, on brief), for appellee.
Darlene Bowyer and the Virginia Department of Social
Services (collectively referred to as mother) appeal the trial
court's order granting Dale Bowyer (father) a temporary abatement
of his child support obligation. Mother contends that father
bore the risk of success in his change from salaried employment
to self-employment and that his resulting lack of income is an
insufficient ground to reduce his support obligation. For the
reasons that follow, we affirm the decision of the trial court.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. I.
A final decree of divorce entered in December 1994 required
father to pay $1,200 per month to support the parties' minor
child. In September 1995 father resigned from his employment of
seventeen years at Arlington Heating and Air Conditioning.
Father testified he resigned because of medical problems, which
the court found to be "life-threatening." Specifically, father
cited migraine headaches, high blood pressure and the stress of
the commute from his home in Hume, Virginia to job sites in
Northern Virginia, Maryland and the District of Columbia. He
further testified that his former employer "was going more
toward" installation projects that he could not perform due to
back and neck problems. In October 1995, father petitioned the court for a temporary
termination or reduction in child support. He had recently
started his own heating and air conditioning company and, at the
time of the hearing, had earned no income from his business.
Mother testified that father had earned an annual salary of
$50,000 at Arlington Heating and Air Conditioning. Without
calculating the presumptive guideline amount based on the
financial information before it, the court granted father a
four-month abatement of child support "due to [his] medical
problems."
II.
The trial court's decision not to impute income to father
- 2 - will be upheld on appeal unless it is "plainly wrong or
unsupported by the evidence." Bennett v. DCSE ex rel. Bennett,
22 Va. App. 684, 691-92, 472 S.E.2d 668, 672 (1996). "'Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.'" It is well established that the credibility of witnesses and the weight accorded to their testimony are matters solely within the purview of the trial court, and its findings will be reversed on appeal only if "plainly wrong or without evidence to support them."
Brooks v. Rogers, 18 Va. App. 585, 587, 445 S.E.2d 725, 726
(1994) (citations omitted).
Mother first complains that the trial court erred in failing
to calculate the presumptive guideline amount of support based on
the parties' income at the time of the hearing. Indeed, the
general rule is well settled: once the court finds a material
change in circumstances, "[t]he starting point . . . for determining the child support obligation of a party . . . is to
compute the presumptive amount [under the guidelines]."
Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473
(1991) (emphasis added).
In the present case, however, there was no determination of
child support to be made. Father sought and received a total
abatement of support for four months. Nonetheless, even
assuming, without deciding, that the court was obligated to
- 3 - compute the presumptive amount of support before determining
whether to abate father's obligation, we find any error of the
trial court in failing to do so to be harmless under the facts of
this case. Here, the evidence was undisputed that father's
current income was zero. Had the court applied the guidelines,
the presumptive amount of support owed by father would have been
zero as well. See Code § 20-108.2(G)(1).
Mother next complains that the trial court erred in refusing
to impute income to father. 1 She argues that father bore the
risk of success in voluntarily deciding to change from salaried
employment to self-employment and that his resulting lack of
income is an insufficient ground to reduce his support
obligation.
"[A] party seeking a change in court-ordered child support
has the burden to prove by a preponderance of the evidence a
material change in circumstances justifying modification of the
support requirement." Antonelli v. Antonelli, 242 Va. 152, 154,
409 S.E.2d 117, 119 (1991). That party "must . . . show that his
lack of ability to pay is not due to his own voluntary act or
because of his neglect." DCSE ex rel. Ewing v. Ewing, 22 Va.
App. 466, 470, 470 S.E.2d 608, 610 (1996) (citations omitted).
"Thus, in order to prove a material change in circumstances that 1 Mother does not dispute that father established a material change in circumstances warranting a review of the support order. She contends the trial court should have deviated from the presumptive amount of support by imputing income to father.
- 4 - justifies a reduction in support, a parent must establish that he
is not voluntarily unemployed or voluntarily under employed."
Id. (citations omitted). In Antonelli, the Supreme Court held
that when the obligor parent "chose to pursue other employment,
albeit a bona fide and reasonable business undertaking," he bore
the risk of his success at his new job, not the children. 242
Va. at 156, 409 S.E.2d at 119-20. "Thus, `the risk of reduction
in income as a result of a parent's intentional act, even if done
in good faith, is insufficient grounds for reducing the amount of
support due under a pre-existing order.'" Ewing, 22 Va. App. at
471, 470 S.E.2d at 610 (quoting Hamel v. Hamel, 18 Va. App. 10,
13, 441 S.E.2d 221, 222 (1994)).
Unlike the imputation of income cases upon which mother
relies, the court in the present case found that father's
decision to resign from his salaried position was not the result
of a voluntary choice, but rather was the result of
"life-threatening" medical problems. Mother does not contend
that leaving a job due to "life-threatening" medical problems is
a voluntary choice. Instead, she argues that the court erred in
basing its finding on father's "unsubstantiated" medical
complaints. However, mother cites no authority to support the
proposition that the court's reliance on father's testimony alone
was insufficient to support its finding. Indeed, father made a
prima facie case that went unrebutted.
Finally, mother argues that father should have taken another
- 5 - salaried job rather than becoming self-employed. However, mother
bore the burden to produce evidence sufficient to "enable the
trial judge reasonably to project what amount could be
anticipated" had father procured other employment. Bennett, 22
Va. App. at 693, 472 S.E.2d at 672-73 (citations omitted).
Mother introduced no evidence concerning father's earnings at his
new business; she did not present evidence to demonstrate that
father was negligent in failing to profit from his new business
or that he ignored other available and suitable employment
opportunities. In light of the evidence that father was involuntarily
underemployed, earning no income, the court's refusal to impute
income was not erroneous.
The decision of the trial court is accordingly affirmed.
Affirmed.
- 6 -