Michael Evans v. Div of Child Support Enforce, etal ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
MICHAEL EVANS
v. Record No. 1290-95-1 MEMORANDUM OPINION *
PER CURIAM
DIVISION OF CHILD SUPPORT ENFORCEMENT
O/B/O SARAH LIGHT
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerome James, Judge
(Jon M. Babineau; Doyle & Babineau, on brief), for
appellant.
(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; Betsy S. Elliott, Senior
Special Counsel, Division of Child Support
Enforcement; Beth J. Edwards, Regional Special
Counsel, Division of Child Support Enforcement; Betsy
D. Jenks, Special Counsel, Division of Child Support
Enforcement, on brief), for appellee.
Michael Evans appeals the decision of the circuit court
denying his motion to reduce child support. Evans raises two
issues on appeal: (1) whether the circuit court lacked
jurisdiction to hear the de novo appeal from the juvenile and
domestic relations district court; and (2) whether the circuit
court erred by refusing to reduce the child support payments.
Upon reviewing the record and briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the decision of the trial court. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
On June 17, 1993, Evans was ordered to pay $351 in monthly
child support to Sarah Light for their son, Christopher. In
April 1994, Evans filed in the juvenile court a motion to reduce
his child support payments to Light. In support of the motion he
alleged that he had had an "increase in the number of dependent
family members" upon the birth of a child on March 5, 1994. On
October 24, 1994, the juvenile court terminated Evans's future
duty of support, based in part upon a representation that custody
had been changed from the mother to the child's grandparents and
an agreement between Evans's counsel and the Commonwealth's
Attorney. On November 18, 1994, Letters of Guardianship over the
person of Christopher were issued to his maternal grandparents by
the Probate Court of Lake County, Ohio.
On November 17, 1994, the Division of Child Support
Enforcement (DCSE) appealed the juvenile court's decision. The
circuit court found that there had not been a significant change
in circumstances meriting a decrease in child support, reinstated
Evans' child support payments, and assessed an arrearage.
Jurisdiction of the Circuit Court
An appeal may be taken "[f]rom any final order or judgment
of the juvenile court affecting the rights or interests of any
person coming within its jurisdiction." Code § 16.1-296. The de
novo hearing at the circuit court is "a trial anew, with the
burden of proof remaining upon the party with whom it rested in
the juvenile court." Box v. Talley, 1 Va. App. 289, 292, 338
2
S.E.2d 349, 351 (1986). See Code § 16.1-136. "[A]n appeal to
the circuit court from a court not of record under Code
§ 16.1-136 annuls the judgment of the inferior tribunal as
completely as if there had been no previous trial." Walker v.
Department of Public Welfare, 223 Va. 557, 563, 290 S.E.2d 887,
890 (1982).
Evans contends that the circuit court lacked jurisdiction to
hear the appeal from the district court because Christopher's
maternal grandparents had been named his guardians. We disagree.
When the father filed his petition in the juvenile court, the
mother was the custodial parent and was a proper party to the
litigation. As a proper party, the mother had a right to appeal
the juvenile court's adverse ruling. See Code § 16.1-296; Board
of Pub. Welfare v. Blackburn, 214 Va. 425, 201 S.E.2d 352 (1982).
Whether the child's grandparents were granted guardianship of
the child's person at a point after entry of the district court's
order and after the DCSE perfected its appeal did not negate the
circuit court's jurisdiction to consider the mother's appeal.
Similarly, any agreement between Evans's counsel and the
Commonwealth's Attorney did not bar the circuit court's exercise
of its jurisdiction. "The consensual nature of the judgment from
which the appeal was taken is not a limitation imposed by statute
upon the right to appeal." Cox v. Cox, 16 Va. App. 146, 149, 428
S.E.2d 515, 517 (1993).
The record establishes that the father instituted the action
3
in juvenile court to reduce his support payments because of the
birth of a child for which he had an obligation to support. When
the matter was appealed to the circuit court, the father did not
amend his motion to reduce support and add as an additional
change in circumstance the change in the child's custody. See
Code § 20-108.1. Thus, the circuit judge did not err in
considering the appeal only with respect to the issue raised by
the motion originally filed in the juvenile court commencing the
action (i.e., whether the father's support payments should be
decreased because of an increase in his other support
obligations.)
For these reasons, we hold that the circuit court had
jurisdiction to hear the appeal from the district court.
Reduction in Child Support
As the party seeking to modify an existing order of child
support, Evans was required to prove "both a material change in
circumstances and that such change justifies an alteration in the
amount of support." Yohay v. Ryan, 4 Va. App. 559, 566, 359
S.E.2d 320, 324 (1987). It is well-settled that "[b]oth parents
owe a duty of support to their minor children." Kelley v.
Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994). "[P]arents
cannot contract away their children's rights to support nor can a
court be precluded by agreement from exercising its power to
decree child support." Id.
The circuit judge considered the statutory factors and
4
computed the amount of child support for which Evans would be
responsible under the statutory guidelines. The circuit judge
allowed a deviation based upon the birth of Evans's new child,
but determined that the amount of support owed by Evans under the
guidelines exceeded the current monthly child support payment of
$351. Therefore, the circuit judge found that Evans had failed
to demonstrate that the change in circumstances warranted a
reduction in his child support payments.
The circuit judge's finding was supported by credible
evidence and not an abuse of discretion. Accordingly, the
decision of the circuit judge is summarily affirmed.
Affirmed.
5