Charles R. Tuck, Jr. v. Mary J. Sesny ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia
CHARLES R. TUCK, JR.
MEMORANDUM OPINION * BY
v. Record No. 1462-98-1 JUDGE RUDOLPH BUMGARDNER, III
JUNE 1, 1999
MARY J. SESNY
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, III, Judge
Pamela P. Bates (Jeffrey M. Jordan; Peninsula
Legal Aid Center, Inc., on briefs), for
appellant.
DeRonda M. Short (Short, Short, Telstad &
Kerr, P.C., on brief), for appellee.
Charles R. Tuck, Jr. petitioned to have his child support
obligation reduced. The trial court found that there was no
change in circumstances and granted Mary J. Sesny’s motion to
strike the evidence. The husband appeals arguing that the trial
court erred (1) in finding no change in circumstances; (2) in
ordering him to continue paying his child support obligation
without first determining the presumptive amount; and (3) in
ordering him to pay medical and dental bills incurred on behalf
of the children and arrearages owed on his support obligation.
We conclude that the evidence established a change in
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
circumstances, and accordingly, we remand for reconsideration of
the support obligation and the accrued arrearage. We affirm the
order establishing the amount owed for medical expenses and
ordering that it be paid.
The parties have three minor children. The trial court
entered a final decree of divorce April 23, 1992. The trial
court entered a consent order November 10, 1993 that set child
support at $950 per month, which was $200 more than the
presumptive guideline amount. With the husband's consent, the
trial court found that applying the guidelines would be unjust.
In 1991, the husband worked in the restaurant business in
Boston, Massachusetts earning $65,000 per year. When the trial
court entered the consent order in November 1993, he was only
earning $16,800 annually working at Kinko’s, an office copying
and duplicating business. Still, the husband consented to the
agreed child support of $950 per month because he believed that
he could earn $35,000 to $40,000 a year in the restaurant
business.
The husband moved to Atlanta, Georgia in late 1993 or early
1994 to seek employment in the restaurant industry. He never
found work comparable to what he had in Boston. The husband
attended bartending school and started working in the general
restaurant business in mid-1994. Since November 1993, he never
held a job that paid as much as the $16,800 he received working
at Kinko's. The husband’s average income through December 1996
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was $1,000 per month. However, he stayed current in his child
support payments through August 1997, when the husband stopped
working.
The husband admits he has been an alcoholic all his life.
He began alcohol rehabilitation treatment in September 1997. He
was hospitalized from September to October 1997 for liver and
neuropsychological complications. At the time of the May 5,
1998 hearing, the husband had been sober and attending treatment
for nine months, but he remained unemployed and lived with his
parents. In February 1998, the husband had exhausted all of his
assets and filed for bankruptcy. In May 1998, he applied for
Social Security disability benefits but his application was
denied.
On behalf of the husband, the Division of Child Support
Enforcement moved to intervene, to reinstate this case, and to
determine whether to reduce the child support obligation. The
trial court granted the motion to intervene but ruled that there
was no change of circumstances since it had established the
amount of support.
The husband contends the trial court erred in finding there
was no change of circumstances. He argues that he was unable to
find employment at the salary he received in Boston, he was
hospitalized because of alcoholism, he was unemployed since
September 1997, and he exhausted his financial resources forcing
him to live with his parents.
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On appeal, we consider the evidence in the light most
favorable to the wife, the prevailing party below. See Cook v.
Cook, 18 Va. App. 726, 731, 446 S.E.2d 894, 896 (1994). When
the evidence is heard at an ore tenus hearing, the trial court’s
decision "is entitled to great weight and will not be disturbed
unless plainly wrong or without evidence to support it."
Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651
(1986).
A trial court may adjust child support payments when the
petitioning party has proven by a preponderance of the evidence
a material change in circumstances and that the change justifies
an alteration in the support award. See Featherstone v. Brooks,
220 Va. 443, 446-47, 258 S.E.2d 513, 515 (1979); Head v. Head,
24 Va. App. 166, 173-74, 480 S.E.2d 780, 784 (1997).
When the consent order was entered in November 1993, the
husband believed that he could earn an annual salary of $35,000
to $40,000. On that basis, he agreed to an upward deviation in
child support. The husband's circumstances changed since the
trial court entered the support order. He moved to Atlanta to
find better paying work but was unsuccessful in finding a job
with a salary that justified the upward support deviation. By
the time of the hearing, the defendant was unable to work, had
been hospitalized, and had depleted his savings. We find those
circumstances satisfied his burden of proving a change in
circumstances. Therefore, we reverse the trial court's finding
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of no change in circumstances and remand for reconsideration of
the amount of support and accrued arrearages.
The husband also contends that the trial court erred in
ordering him to pay the medical bills of $5,543.66. The
original divorce decree obligated the husband to pay for one
half of the children’s medical and dental bills. The wife
presented evidence that the three children incurred orthodontist
bills of $11,087.31. She testified that she had sent some of
these bills certified mail to the husband in Atlanta and they
had been returned unopened. The trial court did not abuse its
discretion in ordering the husband to pay half of these bills
incurred on behalf of his children.
For the foregoing reasons, we reverse in part, affirm in
part, and remand for reconsideration.
Affirmed in part,
reversed in part,
and remanded.
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