Nishat I. Karimi v. Iftekhar A. Karimi ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata
NISHAT I. KARIMI
MEMORANDUM OPINION * BY
v. Record No. 1416-97-3 JUDGE SAM W. COLEMAN III
JUNE 16, 1998
IFTEKHAR A. KARIMI
FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
Rudolph Bumgardner, III, Judge
(Jeffrey A. Ward; Franklin, Franklin,
Denney & Ward, on brief), for appellant.
Appellant submitting on brief.
(Bruce R. Williamson, Jr.; Williamson &
Toscano, on brief), for appellee. Appellee
submitting on brief.
Nishat I. Karimi (mother) appeals the trial court's order
terminating Iftekhar Karimi's (father's) obligation to pay child
support, which termination the court based upon the parties and
the child having relocated from Virginia to India. Mother
contends the trial court abused its discretion in abating the
original child support order where no other court of competent
jurisdiction had assumed jurisdiction or established support for
the child. For the reasons that follow, we reverse the trial
court's abatement order and remand for further proceedings.
BACKGROUND
Mother and father were lawfully married in Indiana in 1988.
Mother moved to India in 1989 where she gave birth to the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
couple's only child. Father remained in the United States and
eventually moved to Waynesboro to work as an engineer.
Mother came to Virginia in 1995 and commenced an action for
child support in the Juvenile and Domestic Relations District
Court for the City of Waynesboro. She resided in Virginia for
several months while the action was pending. The parties
executed an agreement wherein father agreed to pay child support
in the amount of $500 per month, which agreement was incorporated
into a July 1995 order of the juvenile and domestic relations
court. The mother eventually returned to India, where the child
has always resided.
In December 1995, father filed a motion to modify the
support order on the ground that the cost of living in India was
substantially less than in Virginia. The juvenile and domestic
relations court denied the motion. While his appeal from the
denial of the motion to modify was pending before the circuit
court, father lost his job and moved to India. Subsequently, he
filed a motion to abate the child support order on the ground
that both parties and the child no longer resided in Virginia.
In support of his motion, he testified that he had initiated an
action for custody of the child in an Indian court and that, as
the noncustodial parent, he is precluded from raising child
support issues under Indian law. The circuit court granted the
father's motion to abate the child support order, holding that it
was "no longer appropriate for [the court] to order the payment
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of child support" in light of the parties' circumstances.
ANALYSIS
It is well established in Virginia that a trial court may
modify or terminate child support "when the petitioning party has
proven . . . a material change in circumstances." Kaplan v.
Kaplan, 21 Va. App. 542, 547, 466 S.E.2d 111, 113 (1996). See
Code § 20-108. "Once a party has demonstrated a material change,
the court must determine whether that change justifies a
modification [or termination of] the support award by considering
the present circumstances of the parties and the benefit of the
children." Cooke v. Cooke, 23 Va. App. 60, 64, 474 S.E.2d 159,
160-61 (1996) (emphasis added) (citation omitted). The decision
whether to modify or terminate child support is a matter of
judicial discretion which the courts must exercise with the best
interests of the child as its paramount consideration. See
Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 474
(1991); Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345
S.E.2d 10, 11 (1986).
The trial court's abatement of the child support order was
an abuse of discretion. While the parents and child were
residing in Virginia, the trial court had determined the father's
obligation to support his child and, based upon the parents'
agreement which ostensibly indicated the father's ability to
provide support and the child's needs, set the amount of the
support obligation at $500 per month. Although the parents and
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child no longer resided in Virginia when the change in condition
hearing was held, the trial court had continuing jurisdiction to
enforce and modify its original child support order. See Code
§ 20-88.35(6); Commonwealth ex rel. Kenitzer v. Richter, 23 Va.
App. 186, 193, 475 S.E.2d 817, 820 (1996). Nothing in Code
§ 20-88.39 of the Uniform Interstate Family Support Act, which
prescribes when Virginia courts may exercise continuing,
exclusive jurisdiction, vitiates a Virginia court's continuing
jurisdiction to modify its own support order under the
circumstances in this case. See Code § 20-108; cf. Richter, 23
Va. App. at 192 n.1, 475 S.E.2d at 820 n.1. Code § 20-88.39(B)
provides only that a Virginia court "may not exercise its
continuing jurisdiction to modify [a valid child support] order
if the order has been modified by a tribunal of another state"
pursuant to a law substantially similar to this chapter.
(Emphasis added). The parents and child now live in a foreign
country, not in another state. However, because the original
support order has not been modified or supplanted by proceedings
in another court of competent jurisdiction, the trial court
retained its continuing jurisdiction to modify the order even
though the parents and child no longer reside in Virginia. Cf.
Richter, 23 Va. App. at 193, 475 S.E.2d at 820 ("Virginia
continues to have the right to enforce its own decrees even if
all parties are no longer residents.").
We reject the father's argument that the trial court's
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decision to abate the child support order should be affirmed
because under Indian law only the custodial parent, the mother in
this case, can initiate child support proceedings. The father
argues that the case should be controlled by Indian law and
economic standards since all parties reside there. He maintains
that unless the Virginia support order was abated, the mother has
no incentive to initiate support proceedings in India because she
can reap greater financial gain by not invoking the jurisdiction
of the Indian courts and continuing to enforce the Virginia
support order. By abating the Virginia support order, the trial
court will compel the mother, so the father argues, to initiate
support proceedings in India.
However, we find the trial court's abatement of the child
support order failed to consider the father's continuing
obligation to support his child and failed to consider the
child's best interest and need for support. By abating the
support order, the trial court placed the custodial parent, who
had obtained an enforceable support order in the jurisdiction of
the father's residence, in the position of having no enforceable
support order. The trial court could have exercised its
continuing original jurisdiction, on motion of the father or on
its own motion pursuant to Code § 20-108, to modify father's
support obligations to reflect the lower cost of living in India
or to take into account the father's loss of employment in
Virginia. Where the trial court could have reduced the father's
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support obligation and ensured continued support for the child,
the court abused its discretion by terminating support for the
child merely because the parents and child no longer resided in
Virginia. Accordingly, we reverse the trial court's order
terminating father's obligation to pay child support and remand
the case for further proceedings in accordance with this opinion.
Reversed and remanded.
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