Charles D. Bennett v. Commonwealth, DSS ( 1996 )


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  •                      COURT OF APPEALS OF VIRGINIA
    Present: Judges Benton, Coleman and Overton
    Argued at Alexandria, Virginia
    CHARLES D. BENNETT
    v.     Record No. 1364-95-4                  OPINION BY
    JUDGE SAM W. COLEMAN III
    COMMONWEALTH OF VIRGINIA,                  JULY 16, 1996
    VIRGINIA DEPARTMENT OF SOCIAL SERVICES,
    DIVISION OF CHILD SUPPORT ENFORCEMENT,
    ex rel. AUDREY BENNETT
    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
    Robert W. Wooldridge, Jr., Judge
    Yvonne DeBruyn Weight (Eric Michael Weight;
    Weight & Weight, on briefs), for appellant.
    Anne Wren Garrett, Special Counsel (Betsy S.
    Elliott, Senior Special Counsel; Nancy J.
    Crawford, Regional Special Counsel, 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 brief), for appellee.
    Charles D. Bennett appeals the trial court's order which
    refused to modify his monthly child support obligation.    He
    contends that the trial court erred by (1) requiring him to prove
    a material change in his former wife's circumstances, in addition
    to the change in his circumstance, before considering the issue
    of imputing income to her, (2) not imputing income to her, (3)
    not including in her gross income the social security and federal
    housing benefits that she receives, and (4) retroactively
    modifying his child support obligation for October 1994.    We find
    no reversible error and affirm the trial court's order.
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    FACTS AND PROCEDURAL HISTORY
    Charles D. Bennett (father) and Audrey Bennett (mother)
    married in 1983 and separated in 1988.         They had three children.
    The three children have resided with their mother following the
    separation.       Isaac, the youngest child, suffers from Downs
    Syndrome.
    Following the initial support order, the father filed a
    motion for abatement of support because his job was being
    terminated as a result of corporate downsizing.         At the
    modification hearing, the parties stipulated that they had no
    extraordinary medical expenses, no day care expenses, and no
    health insurance expenses.          They also stipulated that the mother
    1
    receives $731 per month in Section 8 federal housing benefits
    and $330 per month in Supplemental Security Income (SSI) benefits
    for Isaac's disability. 2      At the time of the hearing, Isaac was
    attending school about three hours each weekday, but the court
    found he "require[d] a high level of monitoring and attention"
    from the mother.
    As a consequence of the foregoing proceeding, the trial
    court reduced the father's monthly child support obligation to
    $170.       In that proceeding, the court refused to impute income to
    the unemployed father, but the judge stated in his letter opinion
    that he "will continue this matter for six months . . . to review
    1
    See 42 U.S.C. § 1437f(a).
    2
    See 42 U.S.C. § 1381.
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    (among other matters) [the father's] efforts to find employment."
    Also, in that proceeding, the trial judge refused to include as
    part of the mother's gross income the social security benefits or
    federal housing benefits which she receives for Isaac's
    disability, and refused to impute income to the mother because
    she was "fully and properly occupied with the demands and special
    needs of Isaac."
    Following that proceeding, on December 14, 1994, the father
    accepted permanent employment with MFSI, Inc.   Just before doing
    so, he had earned, on a one-time basis during October 1994,
    $2,554.96 from temporary employment with Stephens Engineering
    Company.
    On January 17, 1995, the mother filed a motion for review of
    child support, alleging a material change in circumstance.    At a
    February 9, 1995 hearing, the parties stipulated that, after the
    mother had obtained approval in August 1994 from the Prince
    William County public school system to teach the children at
    home, she had removed the two oldest children from public school.
    They also stipulated that as of the date of the filing of the
    motion, Isaac was attending school all day for three days per
    week and was in day care the other two days.
    By decree dated May 22, 1995, the trial court increased the
    father's monthly child support obligation to $841, based on the
    presumptive child support guidelines in Code § 20-108.2 for his
    gross monthly income of $2,933 and the mother's gross monthly
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    income of $100.   The court also ordered that he pay "a one time
    adjustment" of $574 for child support based upon his October 1994
    income.   The trial court included the $574 with the $13,884.53
    arrearage in child and spousal support found to be due.    The
    court further found that "there has been no material change in
    [the mother's] circumstances such as to impute income to [her]."
    MATERIAL CHANGE OF CIRCUMSTANCE
    A party moving to modify a support decree must prove a
    material change in circumstance following the last support order
    before the trial court is required to consider modifying the
    support award.    See Thomas v. Thomas, 
    217 Va. 502
    , 505, 
    229 S.E.2d 887
    , 889-90 (1976).   The change in circumstance also must
    warrant a modification of the support.     Furr v. Furr, 
    13 Va. App. 479
    , 481, 
    413 S.E.2d 72
    , 73 (1992).     The father contends that the
    trial court erroneously found "there ha[d] been no material
    change in [the mother's] circumstances" by virtue of Isaac being
    in school or day care the entire day, and therefore, erred by
    refusing to consider whether to impute income to the mother.
    The mother's petition to increase support was based on the
    change in condition arising from the father's permanent
    employment.   The trial court did not refuse to impute income to
    the mother because the mother had filed the petition or because
    the father had not alleged or proved a change in her
    circumstances.    In fact, the judge stated that he considered the
    father's argument as "a motion to reconsider."    The judge
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    thereafter ruled that the changed condition of Isaac being in
    school and day care did not warrant a finding that the mother was
    voluntarily unemployed.   Accordingly, the court refused to impute
    income to her.   Thus, the trial judge did not impose an
    additional burden on the father to prove changes in both his and
    the mother's circumstances and did not refuse to consider whether
    to impute income to the mother.
    IMPUTATION OF INCOME
    In November 1994, the court refused to impute income to the
    mother because it found that she was "fully and properly
    occupied" with caring for Isaac.   However, at the February 9,
    1995 hearing, the parties stipulated that as of that date Isaac
    was spending three weekdays in school and the remaining two days
    in day care at state expense.   The father contends, therefore,
    that because the mother is no longer required to remain at home
    to care for Isaac, the trial court erred by declining to impute
    income to the mother in calculating their respective child
    support obligations.   Consequently, he argues that he is being
    required to pay a disproportionate amount of support for the
    children.
    Both parents owe a duty of support to their minor children.
    Code § 20-61; Featherstone v. Brooks, 
    220 Va. 443
    , 448, 
    258 S.E.2d 513
    , 516 (1979).   A trial court has discretion to impute
    income to either or both the custodial or noncustodial parent who
    is voluntarily unemployed, provided that income may not be
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    imputed to a custodial parent except when the child is in school
    or child care services are available.     See Code § 20-108.1(B)(3);
    Sargent v. Sargent, 
    20 Va. App. 694
    , 703, 
    460 S.E.2d 596
    , 600
    (1995) ("A trial court may impute income to the spouse receiving
    child . . . support under appropriate circumstances") (emphasis
    added).    The trial court's decision to not impute income to the
    mother will be upheld on appeal unless it is "'plainly wrong or
    unsupported by the evidence.'"     Id. at 703, 460 S.E.2d at 600
    (quoting Calvert v. Calvert, 
    18 Va. App. 781
    , 784, 
    447 S.E.2d 875
    , 876 (1994)).
    When the 1994 support order was entered, which did not
    impute income to the mother, the trial court found that Isaac
    attended school for approximately three hours each weekday and
    that "[h]e requires a high level of monitoring and attention."
    The mother's time and responsibility in caring for Isaac have
    changed.   Isaac attends school and day care all day each weekday.
    Although the evidence does not show the frequency or extent to
    which Isaac's mother must take him home from school or day care
    or respond to his problems, the mother's counsel avowed that
    [s]ometimes [Isaac] doesn't respond well to
    [the instruction and care he is given at
    school] and his mother has to go to the
    school and intervene or be with him. When he
    goes to day care, if he can't sustain the day
    care situation she has to be there and
    intervene or take him home.
    In Hamel v. Hamel, 
    18 Va. App. 10
    , 13, 
    441 S.E.2d 221
    , 223
    (1994), we held that the trial court erred by refusing to impute
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    income to the noncustodial parent who had voluntarily quit her
    job.   In Brody v. Brody, 
    16 Va. App. 647
    , 650-51, 
    432 S.E.2d 20
    ,
    22-23 (1993), we held that the trial court erred by not imputing
    income to the noncustodial parent who voluntarily left her job to
    stay home and care for a child from another marriage.    A
    custodial parent has no less responsibility to provide support to
    a minor child than does the noncustodial parent.   Thus, the trial
    court shall impute income to a custodial parent who is
    voluntarily unemployed or underemployed where the age of the
    child and circumstances permit the custodial parent to be
    gainfully employed.   Code § 20-108.1(B)(3).
    The facts here are distinguishable from those in Hamel and
    Brody.   Here, the mother has custody of a profoundly disabled
    child who "requires a high level of monitoring and attention."
    She did not voluntarily leave a job to assume this
    responsibility.   Although Isaac is in school and day care each
    weekday, the mother has to be available to respond to his needs
    or to take him home on occasion.   Although the evidence does not
    show the frequency and extent to which the mother is called to
    take Isaac out of school or day care, Isaac is profoundly
    disabled and only recently had his school days and day care
    extended beyond three hours.   The trial judge was familiar with
    Isaac's condition and previously had found that he required a
    high level of monitoring and attention even when Isaac was in
    school only three hours each weekday.
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    The father introduced no evidence to show the availability
    of a job that would tolerate absences or leaving on unscheduled
    intervals.   Furthermore, after Isaac comes home each day, the
    mother must devote her full time and attention to caring for him.
    Although the mother cannot absolve herself of the legal
    obligation to support her dependent children by voluntarily home
    schooling them, and thereby effectively removing herself from the
    labor market, the trial judge did not abuse his discretion by
    considering that in addition to caring for a profoundly disabled
    child, the mother is home schooling two other children.
    Furthermore, the mother has not worked for over ten years
    and no evidence was introduced regarding the availability of jobs
    for her or the amount of income she could earn.     See Sargent, 20
    Va. App. at 704, 460 S.E.2d at 600-01 ("No evidence was presented
    about the availability of a factory position or the hours or
    shifts that would be required").   The party contending that
    income must be imputed is required "to produce evidence that [is]
    sufficient to 'enable the trial judge reasonably to project what
    amount could be anticipated' had the mother [procured]
    employment."   Brody, 16 Va. App. at 651, 432 S.E.2d at 22
    (quoting Hur v. Div. of Child Support Enforcement ex rel Klopp,
    
    13 Va. App. 54
    , 61, 
    409 S.E.2d 454
    , 459 (1991)).
    On these facts, the trial judge did not abuse his discretion
    by declining to impute income to the mother.
    SSI AND FEDERAL HOUSING BENEFITS
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    Code § 20-108.2(C) defines "gross income" broadly for
    purposes of calculating child support.       "'[G]ross income' shall
    mean all income from all sources."     Id.    However, "gross income"
    does "not include benefits from public assistance programs as
    defined in § 63.1-87, federal supplemental security income
    benefits, or child support received."        Id.   "'Assistance' and
    'public assistance' mean and include aid to dependent children,
    auxiliary grants to the aged, blind and disabled, medical
    assistance, food stamps, general relief, fuel assistance, and
    social services."   Code § 63.1-87.    The father contends that the
    social security and federal housing benefits the mother receives
    do not fall within the exception in Code § 20-108(C) to "gross
    income."
    In Whitaker v. Colbert, 
    18 Va. App. 202
    , 205, 
    442 S.E.2d 429
    , 431 (1994), on which the father relies, we held that social
    security benefits received by a parent for a personal disability
    are income for purposes of Code § 20-108.2.         See also
    Commonwealth v. Skeens, 
    18 Va. App. 154
    , 158, 
    442 S.E.2d 432
    , 435
    (1994) ("The payment of money to the child's custodian in the
    form of Social Security payments is an indirect payment from the
    obligor parent for which the parent should receive credit").           The
    father's reliance on Whitaker is misplaced because the father is
    not the disabled party. In Whitaker, we stated that
    [t]he social security benefits received by
    the children are not gratuities, but are
    entitlements earned by [the parent] through
    his earlier employment. They are a
    substitute for his lost ability to provide
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    for the children through the fruits of future
    employment.
    18 Va. App. at 205, 442 S.E.2d at 431.   Here, Isaac's benefits
    are not based upon the father's future employment and they do not
    substitute for the father's loss of earnings or support.
    Although the parents' income is taken into account in
    determining a disabled child's eligibility and amount of benefits
    under the SSI program, the primary purpose of the program is to
    provide special assistance to disabled children in low-income
    households.   See H.R. Rep. No. 231, 92d Cong., 2d Sess.,
    reprinted in 1972 U.S.C.C.A.N. 4989, 5133-34.    "SSI benefits
    received by a disabled child are intended to supplement other
    income, not substitute for it . . . [and] the noncustodial
    parent's child support obligation is not impacted by the receipt
    of SSI on the behalf of a disabled child."    Kyle v. Kyle, 
    582 N.E.2d 842
    , 846 (Ind. Ct. App. 1991).    Accordingly, the father is
    not entitled to a credit or reduction in his child support
    obligation as a result of the SSI benefits the mother receives
    for Isaac's disability.   See Code § 20-108.2(C) (providing that
    gross income does not include "federal supplemental security
    income benefits"); see also Lovett v. Lovett, 
    428 S.E.2d 874
    , 876
    (S.C. 1993) (holding that "Husband was not entitled to offset his
    support obligation by the amount of Social Security benefits
    awarded children as a result of [Wife's] disability").
    Like SSI benefits, Section 8 federal housing benefits are
    also supplemental in nature because they are intended to provide
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    special assistance to low-income families.    See 42 U.S.C.
    § 1437f(a) ("For the purpose of aiding low-income families in
    obtaining a decent place to live and of promoting economically
    mixed housing, assistance payments may be made with respect to
    existing housing in accordance with the provisions of this
    section"); 24 C.F.R. § 880.101(a)(1).   Therefore, we hold that
    the federal housing benefits the mother receives qualify as
    "public assistance" under Code § 63.1-87, and that the trial
    court did not err by declining to include the SSI benefits and
    the housing benefits in the mother's gross income.
    OCTOBER 1994 INCOME
    The trial court ordered that the father's child support
    obligation shall include a "one time adjustment of $574.00" for
    income he earned during October 1994 "on which he paid nothing
    for the support of his family."   Accordingly, the court included
    that amount in the total arrearage of $14,458.53 as of February
    1, 1995.   The father contends that the court exceeded its
    authority by retroactively modifying the support order as it
    applied to the month of October 1994.   He argues that the past
    support obligation, which included October 1994, was vested and
    fixed by judgment.
    A trial court may not retroactively modify a child support
    decree to cancel a support arrearage or to relieve a parent of an
    accrued support obligation.   Cofer v. Cofer, 
    205 Va. 834
    , 838-39
    
    140 S.E.2d 663
    , 666-67 (1965); Taylor v. Taylor, 
    10 Va. App. 681
    ,
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    683-84, 
    394 S.E.2d 864
    , 866 (1990).      Past due installments become
    vested and are not subject to change.       Taylor, 10 Va. App at 683,
    394 S.E.2d at 865-66.   A court may only modify a support order to
    be effective prospectively.     Id.   The order may be made effective
    "with respect to any period during which there is a pending
    petition for modification, but only from the date that notice of
    such petition has been given to the responding party."       Code
    § 20-108.   The court may modify its support order upon motion of
    any party in interest or upon its own motion.       Id.   We hold that
    the prohibition announced in Cofer against retroactive
    modifications to relieve support obligations applies with equal
    force to prevent a trial court from retroactively modifying its
    support order to increase a party's past support obligation.
    We do not, however, view the trial court's one time award of
    $574 as a retroactive modification or increase in a past due or
    vested amount of support.   Rather, we view the trial court's
    award, which was predicated on its own motion pursuant to the
    authority granted by Code § 20-108, as ordering the father to pay
    on a one time basis, an amount based on recent earnings as part
    of his current support obligation.       The fact that the court's
    award was based on past earnings does not render it a
    modification of a prior order or award or prevent the court from
    making a one-time lump sum child support award when the
    circumstances so justify.     See Carter v. Thornhill, 
    19 Va. App. 501
    , 507, 
    453 S.E.2d 295
    , 299 (1995).      Frequently, a one-time
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    past event, such as an inheritance or liquidation of an asset or
    other windfall that has already occurred, will justify a
    prospective one-time award of support.   Such an award or
    modification operates prospectively, not retroactively.     By
    declaring the amount due and payable and including it in the
    arrearage, the court did not retroactively modify its support
    order.   See Dziarnowski v. Dziarnowski, 
    14 Va. App. 758
    , 762, 
    418 S.E.2d 724
    , 726 (1992) ("When a trial court reaches the correct
    result for the wrong reason, its judgment will be upheld on
    appeal").   Therefore, we affirm the trial court's order
    establishing a one-time monthly child support obligation of $574.
    For the foregoing reasons, we affirm the trial court's
    order.
    Affirmed.
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    Benton, J., concurring.
    I join in the opinion except a portion of the section styled
    Imputation of Income.
    The evidence established that the youngest child, who is
    disabled, attends school and day care all day each weekday.     I
    find nothing in the record that established that the mother has
    any greater need to visit the youngest child's school than any
    other working parent who has children in school.    No evidence
    proved either the frequency of her visits or the length of her
    visits to the school.
    The evidence further established that the mother voluntarily
    removed the two older children from the public school system to
    "home school" them herself.    I believe that the record proved
    that the mother's unavailability to seek employment was based
    solely upon her voluntary decision to "home school" two of her
    children.   In deciding to remove the two older children from
    school, she voluntarily chose "the convenience or personal
    preference . . . to remain unproductive . . . so as to avoid
    support obligations."     Hur v. Virginia Dep't of Social Servs., 
    13 Va. App. 54
    , 60, 
    409 S.E.2d 454
    , 458 (1991).    Thus, I would hold
    that her decision to "home school" her children was a voluntary
    decision taken "to the detriment of [her] support obligations to
    the children."   Brody v. Brody, 
    16 Va. App. 647
    , 651, 
    432 S.E.2d 20
    , 22 (1993).
    I concur in the judgment, however, because I agree with the
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    majority's additional rationale that the father failed to
    establish that the mother, who has been unemployed since 1985,
    could find employment.   The statement of facts recites that
    "[n]either party presented evidence as to employment available to
    [the mother] given her skills and experience."   Thus, I would
    hold, not that the evidence failed to prove a material change in
    circumstance, but that the evidence failed to prove the
    availability of employment and was insufficient to "enable the
    trial judge reasonably to project what amount [of income] could
    be anticipated" if employment was available to the mother.      Hur,
    13 Va. App. at 61, 409 S.E.2d at 459.    Accordingly, I would
    uphold the trial judge's ruling with respect to imputed income
    only because, as he found, "there was insufficient evidence of
    any income that could be imputed to [the mother]."
    Except as stated above, I concur in the remainder of the
    opinion and would affirm the judgment.
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