LAYMAN v. LAYMAN


LAYMAN v. LAYMAN


AUGUST 5, 1997
Record No. 2462-96-3

VICTOR RAY LAYMAN, II

v.

JANE ELIZABETH GRIER LAYMAN

OPINION BY CHIEF JUDGE NORMAN K. MOON
FROM THE CIRCUIT COURT OF ROANOKE COUNTY

Roy B. Willett, Judge
Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Salem, Virginia

Jonathan Rogers (Jonathan Rogers, P.C., on briefs), for
appellant.

Harvey S. Lutins (J. Emmette Pilgreen, IV; Lutins, Shapiro &
Kurtin, on brief), for appellee.


Victor Ray Layman, II ("husband") appeals the order
of the trial court denying his petition for modification of child
support. Husband asserts that the trial court erred in: (1)
finding that he was voluntarily unemployed as a result of his
incarceration and was therefore not entitled to a reduction in
child support; and (2) refusing to determine his child support
obligation based upon imputed legally earned income. We hold that
the trial court did not err in finding that husband’s
incarceration constituted voluntary unemployment. Accordingly, we
affirm.

Husband and Jane Elizabeth Grier Layman ("wife")
were married on December 19, 1981. From 1981 to 1996 husband
averaged $16,000 a year in legally earned income. In 1990,
husband’s father died and husband inherited $100,000, which he
used to open a real estate business, the "Academy of Real
Estate." The parties separated shortly thereafter and
entered into a separation agreement in which husband agreed to
pay $1,100 in monthly child support. Despite depleting his
inheritance and incurring substantial debt, husband was unable to
maintain his business, which ultimately failed in 1992. Husband
had no legal source of income during 1991 and 1992.

The parties’ final decree of divorce, incorporating the
parties’ separation agreement, was entered on February 6, 1992.
Husband testified that he began growing and selling marijuana in
1992 in order to "pay off all of the massive amount and
[sic] debts and avoid bankruptcy" and so that he could
continue to support his children. Husband was arrested in
December, 1994, for growing marijuana and was subsequently
convicted and sentenced to a five year prison term. On May 30,
1996, husband petitioned the trial court for a reduction in child
support. Finding that husband’s crime resulting in incarceration
constituted voluntary unemployment, the trial court denied
husband’s petition.

In a petition for modification of child or spousal support,
the moving party must prove a material change in circumstances
that warrants modification of support. Yohay v. Ryan, 4
Va. App. 559, 566, 359 S.E.2d 320, 324 (1987). Here, the evidence
shows that husband experienced a material change in
circumstances. At the time of the entry of the final decree of
divorce, husband was actively pursuing a real estate business,
financed in large part by his inheritance of $100,000. At the
time of husband’s petition for modification, husband was
incarcerated.

Whether this material change warranted modification of
husband’s support award requires that we address the question of
whether a parent’s incarceration can constitute voluntary
unemployment under Code ? 20?108.1(B)(3).
Considering a case in which a parent sought reduction of his
support obligation after being fired from his job for stealing,
the Supreme Court held that:

In the case before us, it is undisputed that [petitioner’s] diminution of income was the direct consequence of his voluntary,
wrongful act. After receiving a direct warning from his employer
following a previous theft, he was fired for stealing again. He
failed to meet the burden . . . of showing himself free of
responsibility for his change in circumstances, and was not
entitled to a reduction in [child] support based upon the
diminution of income caused by the loss of his job.

Edwards v. Lowery, 232 Va. 110, 112-13, 348 S.E.2d 259,
261 (1986). Here, husband similarly attempts to shift to his wife
and children the consequences of his wrongdoing. In keeping with
the principle articulated in Edwards, we hold that a
parent’s incarceration may be found to constitute voluntary
unemployment under Code ? 20?108.1(B)(3),
and, consequently, it may preclude a reduction of a support
obligation based on a loss of income resulting from that
incarceration.

Accordingly, we affirm the trial court’s finding that
husband’s incarceration did not entitle him to a reduction in
support.

Affirmed.