Fulltext Opinions
BROOKS
v.
DIVISION OF CHILD
SUPPORT ENFORCEMENT,
ex rel.
CATHLEEN BROOKS
(unpublished)
JUNE 3, 1997
Record No. 1928-96-2
DAVID WAYNE BROOKS
v.
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. CATHLEEN BROOKS
MEMORANDUM OPINION[1]
BY JUDGE JAMES W. BENTON, JR.
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia
Jeffrey L. Galston (Hyder, Lowe & Galston, on brief), for
appellant.
(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
brief), for appellee.
David Wayne Brooks appeals from an order reducing his child
support obligation from $280 per month to $100 per month. Brooks
argues that the trial judge erred in refusing to further reduce
his obligation to conform to Brooks’ limited ability to pay. The
Division of Child Support Enforcement argues that the trial judge
erred in ordering any reduction in Brooks’ obligation. For the
reasons that follow, we reverse the order.
I.
Brooks filed a motion for a reduction in his child support
obligation. A judge of the juvenile and domestic relations
district court denied the motion. After Brooks appealed that
order, a hearing was held in the circuit court. The statement of
facts recites that the evidence proved that Brooks was convicted
of attempted capital murder and firearm charges and was
incarcerated at a Virginia prison. Brooks was employed in prison
as head cook and was paid a wage of only 45 cents per hour.
Brooks argued that he was unable to make his child support
payments because his monthly income was $54. The Division of
Child Support Enforcement argued that Brooks was not entitled to
any reduction in his support obligation because his incarceration
was caused by his own voluntary actions. The circuit court judge
entered an order stating the following:
[Mother], as child support, the sum of $280.00 per month, and
$40.00 per month towards the accrued arrearage. The present order
shall be suspended effective May 1, 1996, whereby [Brooks] shall
pay to the Mother, as current child support, the sum of $100.00
per month, payable on the first of each month. The guideline
amount was computed by imputing minimum wage of $4.50 per hour to
[Brooks], or $775 per month and a monthly gross income of $1770
for the Mother. These figures result in a monthly child support
obligation of $185.00, however the Court is deviating from the
presumptive guideline amount and ordering only $100.00 per month
because [Brooks] is incarcerated. The $100 per month child
support obligation shall remain in effect until thirty days after
. . . Brooks[‘] release from incarceration, at that time the
suspension shall be lifted and the prior order of $280.00 per
month current child support and $40.00 per month towards the
accumulated arrears will again be in effect.
This appeal arises from that order.
II.
"The court may . . . revise and alter . . . [a child
support] decree . . . as the circumstances of the parents and the
benefit of the children may require." Code ? 20-108.
When invoking the divorce court’s continuing jurisdiction
under Code ? 20-108, . . . 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. In
discharging this burden, a father seeking a reduction in support
payments must . . . show his claimed lack of ability to pay is
not due to his own voluntary act or because of his neglect. Antonelli
v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 118-19
(1991).
The reason for Brooks’ diminished ability to pay, his
incarceration, was a result of his own voluntary act of
committing the crime of attempted capital murder. The Supreme
Court of Virginia has squarely addressed the principle
controlling the case of an obligor who seeks a reduction of child
support because of wrongful conduct. See Edwards v.
Lowry, 232 Va. 110, 348 S.E.2d 259 (1986). Reviewing a trial
judge’s decision to reduce the child support payments of a father
who was fired from his employment for stealing, the Supreme Court
observed that "the case now before us . . . involved an
effort by a former husband to shift to his wife or child the
consequences of his own wrongdoing." Id. at 113, 348
S.E.2d at 261. In reversing the trial judge’s decision to reduce
the payments, the Supreme Court ruled that the father
"failed to meet the burden . . . of showing himself free of
responsibility for his change in circumstances, and was not
entitled to a reduction in support based upon the diminution of
income caused by the loss of his job." Id. Certainly,
Brooks stands in no better position when the diminution of his
income was caused by his incarceration for a voluntary criminal
act.
The record provides no other basis upon which the trial judge
could have reduced Brooks’ child support obligation. We hold,
therefore, that the trial judge erred in using Brooks’
incarceration as a ground for reducing his child support
obligation. Accordingly, we reverse the order and remand to the
trial judge to reinstate the original support order.
Reversed and remanded.
FOOTNOTES:
[1] Pursuant to Code ? 17-116.010
this opinion is not designated for publication.
