Hart v. Hodson

48 Va. Cir. 63, 1999 Va. Cir. LEXIS 24

• Court: Loudoun County Circuit Court
• Decided: January 19, 1999
• Docket: Case No. CJ98-44
• Status: Published

Opinion

BY JUDGE JAMES H. CHAMBLIN

On July 1,1998, Joan M. Hart (“Mother”) filed a petition in the Loudoun Juvenile and Domestic Relations District Court (“JDR Court”) against Randall A. Hodson (“Father”) seeking the establishment of child support for their child, Randall A. Hodson, II. The parties had been divorced by decree of the Circuit Court of Fairfax County on August 6, 1991. By their Separation Agreement dated June 21,1990, which was incorporated in the divorce decree, the parties have joint custody of their child. He resides with each parent on alternating two-week time periods. No child support was provided for in the agreement or the divorce decree.

The JDR. Court established an amount of child support to be paid by the Father by order entered September 1,1998. The Mother has appealed to this Court. The petition was heard in this Court on December 17, 1998. At the conclusion of the hearing, I asked counsel to submit authorities on the issues involved. Counsel have done so, and I have considered them.

For reasons that follow, the Father shall pay to the Mother as child support die sum of $467.00 per month, beginning July 1,1998, and it is to be paid on the first day of each month thereafter until fiirther order of the Court or until die Father is no longer obligated to pay child support as a matter of law.

In February, 1996, the Mother stopped being employed due to the birth of a child by her second marriage. At the time, she was employed as a secretary making $34,000.00 annually. In June, 1996, the parties agreed that the Mother would provide after-school care for their son. Accordingly, since June, 1996, the Mother has provided before-school and after-school care for their son even during weeks that he is with the Father.

The Father admitted in Requests for Admissions that the parties agreed that the Mother would be available after school to supervise their child and that his best interests require ongoing, consistent parental supervision.

In April, 1998, the child threatened to jump from a second-story window because he got a B on his report card (all his other grades were As). As a result, he is in therapy. The Mother takes him to therapy. The Father admitted in Requests for Admissions that the child’s therapist recommended that the Mother be responsible for the child’s after-school care.

The Father’s income is $70,000.00 annually.

The presumptive amount of child support is $466.00 per monto if toe Father is shown to have toe child 183 days per year and toe Mother is shown to have toe child 182 days per year. The presumptive amount is $468.00 per month if toe Father has toe child 182 days per year and toe Mother has toe child 183 days per year. I find toe presumptive amount for purposes of this case to be toe average of the two, or $467.00 per month.

The Father seeks a deviation from the presumptive amount because toe Mother is voluntarily unemployed, citing Hammers v. Hammers, 216 Va. 30 (1975); Edwards v. Lowry, 232 Va. 110 (1986); Yohay v. Ryan, 4 Va. App. 559 (1987); and Antonelli v, Antonelli, 242 Va. 152 (1991). He argues that toe Mother voluntarily assumed toe obligations of a new family and elected to stay at home after toe birth of her new child.

I would agree with toe Father if toe Mother alone, for her own personal reasons, decided to quit work, stay home, and take care of not only her new child but also their son before and after school. The Mother provides toe ongoing consistent parental after-school supervision for toe child on toe recommendation of toe therapist and by agreement reached with toe Father. The Father admits toe therapist recommended toe Mother provide after-school supervision and toe Father agreed to toe Mother being available to do so.

Because of toe needs of their son and their agreement, toe Mother cannot work full-time as she did in 1996 before she gave birth to her new child and began supervising toe parties’ son after school. The only evidence of what toe Mother has made in toe recent past is $34,000.00 annually for full-time work in 1996. A party seeking to impute income has toe burden to prove that toe other parent has voluntarily foregone employment, and toe evidence must be sufficient to reasonably project toe amount of income that could be anticipated. Niemiec v. Commonwealth, Dept. of Social Services, 27 Va. App. 446, 451 (1998). A 1996 salary for full-time work by the Mother is not sufficient for me to reasonably project an amount of income for the Mother. The Mother may be able to work part time (she testified that she was looking for part-time work during school hours, but she has not yet obtained such work), but the Father offered no evidence of what she could malm at a part-time job that would allow her to supervise their son before and after school.

I decline to deviate from the presumptive amount.