Commonwealth/DSS v. Franklin R.J. Ewing, III ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia
COMMONWEALTH OF VIRGINIA, VIRGINIA
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel., PHYLLIS S. EWING OPINION BY
JUDGE JOHANNA L. FITZPATRICK
v. Record No. 1480-95-2 MAY 21, 1996
FRANKLIN R. J. EWING, III
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
Keith H. Warren, Special Counsel, Virginia
Department of Social Services, Division of
Child Support Enforcement (Betsy S. Elliott,
Senior Special Counsel, Virginia Department
of Social Services, Division of Child Support
Enforcement; 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, on briefs), for appellant
Division of Child Support Enforcement.
Jacqueline G. Epps (Morris and Morris, on
brief), for appellant Phyllis S. Ewing on
custody issue.
Deanna D. Cook (Bremner & Janus, on brief),
for appellee.
Phyllis S. Ewing and the Virginia Department of Social
Services (collectively referred to as mother) appeal the trial
court's order denying mother an award of child support. She
argues that the trial court erred in eliminating the child
support obligation of Franklin R. J. Ewing, III (father) after
determining that he had become voluntarily unemployed. Father
appeals the trial court's continuation of mother's sole legal
custody of the parties' child. For the reasons that follow, we
reverse the trial court's elimination of father's child support
obligation and affirm its resolution of the child custody issue. 1
BACKGROUND
The parties were married on September 7, 1991 and separated
on February 12, 1994. They have one child, born December 30,
1992.
Father is a licensed pharmacist, whose 1991 income was
approximately $79,000. In 1992, father entered medical school at
the Medical College of Virginia, but continued to work part time
as a pharmacist, earning approximately $45,000 in 1993. After
the parties separated, mother filed for an award of child support
in the Juvenile and Domestic Relations District Court for the
City of Richmond. On March 15, 1994, the court entered an agreed
order that required father to pay $400 per month in child
support. At the time of the entry of the support order, father
was in medical school but continued to work as a pharmacist.
Four months after the entry of the order, in July 1994, father
quit his job as a pharmacist. He testified that, as a third-year
medical student, he would be unable to work part time and attend
school full time because of the demands of his class schedule.
He supports himself with student loans and loans from his
parents. Mother works as an administrative assistant at a law
1
We deny father's motion to dismiss because the record fails to
show that the notice of appeal was not timely filed.
2
firm, earning a monthly salary of $1875. She has a $362 monthly
shortfall in her budget.
Mother was awarded sole legal custody of the parties' child,
with father having visitation every other weekend and a midweek
visit during those weeks with no scheduled weekend visitation.
Father does not speak to mother about matters relating to the
child, and he and mother have not directly communicated with one
another since their separation. Father also does not speak to
mother's sister, who serves as a neutral party for visitation
purposes. Written notes are the only form of communication
between the parties.
After a hearing on April 4, 1995, the trial court: (1)
completely eliminated father's monthly child support obligation,
and (2) denied father's request for joint legal custody. The
trial court determined that, although father "is voluntarily
unemployed now, . . . he is pursuing education that will
hopefully enhance his earnings potential in the not too distant
future and better secure his financial position for his good and
that of his child." After calculating father's presumptive
amount of child support to be zero, the trial judge refused to
impute income to father and stated that he could not "find that
the amount is 'unjust or inappropriate' in order to consider an
alternate child support obligation due from [father]." In
denying father's request for joint legal custody, the trial judge
found that "communication is not occurring between the parents.
3
Communication and cooperation for the sake of the child has to be
present to make joint custody work." (Emphasis added).
CHILD SUPPORT
Mother argues that the trial court erred in eliminating
father's child support obligation. The court specifically found
that father became voluntarily unemployed when he left his job as
a pharmacist to attend medical school full time. Mother contends
that, upon making this finding, the court was required to deny
father's motion for a reduction in child support. 2 We agree.
"Once a child support award has been entered, only a showing
of a material change in circumstances will justify modification
of the support award. The moving party has the burden of proving
a material change by a preponderance of the evidence." Crabtree
v. Crabtree, 17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993).
"[A] party seeking a reduction in support payments has additional
burdens: '[H]e must make a full and clear disclosure relating to
his ability to pay. He must also show that his lack of ability
to pay is not due to his own voluntary act or because of his
neglect.'" Edwards v. Lowry, 232 Va. 110, 112-13, 348 S.E.2d
259, 261 (1986) (emphasis added) (quoting Hammers v. Hammers, 216
Va. 30, 31-32, 216 S.E.2d 20, 21 (1975)). Thus, in order to
prove a material change in circumstances that justifies a
2
Mother does not dispute the trial court's finding that father
suffered a material change in circumstances. She argues that
father failed to meet the additional burden of proving that his
material change in circumstances was not the result of his own
voluntary act.
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reduction in support, a parent "must establish that he is not
'voluntarily unemployed or voluntarily under employed.'"
Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119
(1991) (quoting Code § 20-108.1(B)(3)).
In Antonelli, the Supreme Court of Virginia denied the
father's request for a reduction in his child support obligation
because he voluntarily quit his job as a salaried stockbroker to
become a commissioned broker. 242 Va. at 156, 409 S.E.2d at 119.
The Court held that, when the father "chose to pursue other
employment, albeit a bona fide and reasonable business
undertaking, the risk of his success at his new job was upon the
father, and not upon the children." Id. 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." Hamel v. Hamel, 18 Va. App. 10, 13, 441
S.E.2d 221, 222 (1994) (emphasis added).
In the instant case, the trial court specifically found that
father became "voluntarily unemployed" when he quit his job as a
pharmacist to attend medical school full time. This finding is
clearly supported by the record. When father left his job as a
pharmacist without being discharged, he voluntarily terminated
his employment to the detriment of his support obligation to his
child. Although father's voluntary unemployment constituted a
change in circumstances, he failed to prove that this change in
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circumstances was not the result of his "voluntary act."
Additionally, father presented no change in circumstances that
might justify a reduction in support other than his unilateral
decision to quit his employment four months after the initial
amount of support was ordered. Thus, under the rationale of
Edwards and Antonelli, the trial court should have denied
father's request for a reduction in child support.
Father argues that the record fails to show that he pursued
his medical degree in bad faith or that he quit his pharmacist
job to avoid his support obligation. Some jurisdictions use a
good-faith analysis in determining whether a parent is entitled
to a modification of child support when he or she leaves
3
employment to become a full-time student. Although no Virginia
3
In student obligor cases, other jurisdictions have applied a
good faith analysis. See, e.g., In re Marriage of Seanor, 876
P.2d 44 (Colo. Ct. App. 1993), aff'd in part, rev'd in part, 891
P.2d 1002 (Colo. 1995); Sabatka v. Sabatka, 511 N.W.2d 107 (Neb.
1994); Ciostek v. Ciostek, 588 N.Y.S.2d 690 (N.Y. App. Div. 1992).
These courts hold that "[a] parent responsible for the support of
the children may, where necessary, forego employment and pursue
further education that will enhance his earning capacity and
thereby ultimately benefit the children. A parent may not,
however, unilaterally forego employment in an attempt to evade
support responsibilities." Ciostek, 588 N.Y.S.2d at 691 (citation
omitted). However, some courts using a good faith analysis in
student obligor cases have placed limitations on good faith. For
example, although a parent is acting in good faith by pursuing
further education, this conduct cannot be "intended to deprive a
child of support and [cannot] unreasonably reduce the support
available to a child." Seanor, 876 P.2d at 48 (emphasis added).
Additionally, other courts have recognized that good faith is only
one factor to be considered in determining whether a student
obligor is entitled to a modification of support and that "the
paramount concern and question in determining child support . . .
is the best interests of the child." Sabatka, 511 N.W.2d at 111-
13.
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case has addressed this issue in the context of a student
obligor, Virginia courts have held that a parent's voluntary
unemployment, "even if done in good faith," does not justify
reducing his or her obligation to pay child support. Hamel, 18
Va. App. at 13, 441 S.E.2d at 222. See also Antonelli, 242 Va.
at 155-56, 409 S.E.2d at 119. Additionally, "[i]n setting an
award of child support, the 'primary issue before a trial judge
is the welfare and best interests of the child, not the
convenience or personal preference of a parent.'" Brody v.
Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993) (quoting
Hur v. Virginia Dep't of Social Servs. Div. of Child Support
Enforcement ex rel. Klopp, 13 Va. App. 54, 60, 409 S.E.2d 454,
458 (1991)).
While a family is intact, the parents' choice
of occupations and the family's standard of
living are left to the parents' discretion as
long as the children's basic needs are met.
Once the parents are separated, however, "the
law of this Commonwealth allows the courts to
provide for the child's basic needs and,
within reason, some measure of assumed
parental generosity." After divorce,
although a parent may voluntarily terminate
his or her employment, he or she may not do
so to the detriment of support obligations to
the children.
Brody, 16 Va. App. at 651, 432 S.E.2d at 22 (emphasis added)
(quoting Conway v. Conway, 10 Va. App. 653, 658, 395 S.E.2d 464,
467 (1990)).
Father's voluntary termination of his substantial current
income to secure a possible future reward overlooks the current
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needs of the child and gives priority to a parent's ambition.
Additionally, in this case, father presented no evidence
regarding how his medical school education would benefit his
child or when the hoped for financial benefit would be realized.
Mother's evidence established that she had a monthly shortfall
in her budget of $362 and needed the court-ordered child support
to adequately care for the child. The present needs of the child
should not be discounted, awaiting a possible future windfall.
Thus, we hold that a parent's voluntary termination of income in
order to pursue a possible future gain in income is insufficient
to support a modification of child support, even if done in good
faith.
CHILD CUSTODY
Father contends that the trial court erred in denying his
request for joint legal custody of the parties' child and in
awarding sole legal custody to mother.
In matters of custody . . . the court's
paramount concern is always the best
interests of the child. . . . In matters of a
child's welfare, trial courts are vested with
broad discretion in making the decisions
necessary to guard and to foster a child's
best interests. A trial court's
determination of matters within its
discretion is reversible on appeal only for
an abuse of that discretion, and a trial
court's decision will not be set aside unless
plainly wrong or without evidence to support
it.
Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795
(1990) (citations omitted). In this case, the trial court did
8
not abuse its discretion in denying father's request for joint
legal custody. The evidence established the parties' lack of
communication concerning the child. Mother's sister testified
that she served as a neutral third party for delivery of the
child for father's visitation and that communication with father
was nonexistent during the exchanges. Under these facts, the
trial court's determination that joint legal custody was not in
the child's best interests was not plainly wrong and was
supported by the evidence.
Accordingly, the decision of the trial court is affirmed as
to the child custody issue and reversed as to the denial of child
support.
Affirmed in part and
reversed in part.
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