Michael Evans v. Div of Child Support Enforce, etal

• Court: Court of Appeals of Virginia
• Decided: February 6, 1996
• Docket: 1290951
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

MICHAEL EVANS

v. Record No. 1290-95-1 MEMORANDUM OPINION * PER CURIAM DIVISION OF CHILD SUPPORT ENFORCEMENT O/B/O SARAH LIGHT

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Jerome James, Judge (Jon M. Babineau; Doyle & Babineau, on brief), for appellant.

(James S. Gilmore, III, Attorney General; William H. Hurd, Deputy Attorney General; Siran S. Faulders, Senior Assistant Attorney General; Craig M. Burshem, Regional Special Counsel; Betsy S. Elliott, Senior Special Counsel, Division of Child Support Enforcement; Beth J. Edwards, Regional Special Counsel, Division of Child Support Enforcement; Betsy D. Jenks, Special Counsel, Division of Child Support Enforcement, on brief), for appellee.

Michael Evans appeals the decision of the circuit court

denying his motion to reduce child support. Evans raises two

issues on appeal: (1) whether the circuit court lacked

jurisdiction to hear the de novo appeal from the juvenile and domestic relations district court; and (2) whether the circuit

court erred by refusing to reduce the child support payments.

Upon reviewing the record and briefs of the parties, we conclude

that this appeal is without merit. Accordingly, we summarily

affirm the decision of the trial court. Rule 5A:27. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. On June 17, 1993, Evans was ordered to pay $351 in monthly

child support to Sarah Light for their son, Christopher. In

April 1994, Evans filed in the juvenile court a motion to reduce

his child support payments to Light. In support of the motion he

alleged that he had had an "increase in the number of dependent

family members" upon the birth of a child on March 5, 1994. On

October 24, 1994, the juvenile court terminated Evans's future

duty of support, based in part upon a representation that custody

had been changed from the mother to the child's grandparents and

an agreement between Evans's counsel and the Commonwealth's

Attorney. On November 18, 1994, Letters of Guardianship over the

person of Christopher were issued to his maternal grandparents by

the Probate Court of Lake County, Ohio. On November 17, 1994, the Division of Child Support

Enforcement (DCSE) appealed the juvenile court's decision. The

circuit court found that there had not been a significant change

in circumstances meriting a decrease in child support, reinstated

Evans' child support payments, and assessed an arrearage.

Jurisdiction of the Circuit Court

An appeal may be taken "[f]rom any final order or judgment

of the juvenile court affecting the rights or interests of any

person coming within its jurisdiction." Code § 16.1-296. The de

novo hearing at the circuit court is "a trial anew, with the

burden of proof remaining upon the party with whom it rested in

the juvenile court." Box v. Talley, 1 Va. App. 289, 292, 338

2 S.E.2d 349, 351 (1986). See Code § 16.1-136. "[A]n appeal to

the circuit court from a court not of record under Code

§ 16.1-136 annuls the judgment of the inferior tribunal as

completely as if there had been no previous trial." Walker v.

Department of Public Welfare, 223 Va. 557, 563, 290 S.E.2d 887,

890 (1982).

Evans contends that the circuit court lacked jurisdiction to

hear the appeal from the district court because Christopher's

maternal grandparents had been named his guardians. We disagree.

When the father filed his petition in the juvenile court, the

mother was the custodial parent and was a proper party to the

litigation. As a proper party, the mother had a right to appeal

the juvenile court's adverse ruling. See Code § 16.1-296; Board

of Pub. Welfare v. Blackburn, 214 Va. 425, 201 S.E.2d 352 (1982).

Whether the child's grandparents were granted guardianship of

the child's person at a point after entry of the district court's

order and after the DCSE perfected its appeal did not negate the

circuit court's jurisdiction to consider the mother's appeal.

Similarly, any agreement between Evans's counsel and the

Commonwealth's Attorney did not bar the circuit court's exercise

of its jurisdiction. "The consensual nature of the judgment from

which the appeal was taken is not a limitation imposed by statute

upon the right to appeal." Cox v. Cox, 16 Va. App. 146, 149, 428

S.E.2d 515, 517 (1993).

The record establishes that the father instituted the action

3 in juvenile court to reduce his support payments because of the

birth of a child for which he had an obligation to support. When

the matter was appealed to the circuit court, the father did not

amend his motion to reduce support and add as an additional

change in circumstance the change in the child's custody. See

Code § 20-108.1. Thus, the circuit judge did not err in

considering the appeal only with respect to the issue raised by

the motion originally filed in the juvenile court commencing the

action (i.e., whether the father's support payments should be decreased because of an increase in his other support

obligations.)

For these reasons, we hold that the circuit court had

jurisdiction to hear the appeal from the district court.

Reduction in Child Support

As the party seeking to modify an existing order of child

support, Evans was required to prove "both a material change in

circumstances and that such change justifies an alteration in the

amount of support." Yohay v. Ryan, 4 Va. App. 559, 566, 359

S.E.2d 320, 324 (1987). It is well-settled that "[b]oth parents

owe a duty of support to their minor children." Kelley v.

Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994). "[P]arents

cannot contract away their children's rights to support nor can a

court be precluded by agreement from exercising its power to

decree child support." Id.

The circuit judge considered the statutory factors and

4 computed the amount of child support for which Evans would be

responsible under the statutory guidelines. The circuit judge

allowed a deviation based upon the birth of Evans's new child,

but determined that the amount of support owed by Evans under the

guidelines exceeded the current monthly child support payment of

$351. Therefore, the circuit judge found that Evans had failed

to demonstrate that the change in circumstances warranted a

reduction in his child support payments. The circuit judge's finding was supported by credible

evidence and not an abuse of discretion. Accordingly, the

decision of the circuit judge is summarily affirmed.

Affirmed.