Paul Pierre Smyth v. Amy Ruth Smyth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Senior Judge Hodges
Argued at Alexandria, Virginia
PAUL PIERRE SMYTH
v. Record No. 2339-94-4 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
AMY RUTH SMYTH OCTOBER 3, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Jr., Judge
Peter Imants Grasis (Stephen G. Cochran;
Brian M. Miller, on brief), for appellant.
Mark B. Sandground, Sr. (Judy Tyrrell;
Sandground, Barondess & West, P.C., on
brief), for appellee.
Paul Pierre Smyth contends that the trial court erred (1) in
concluding that he had the ability to pay child support, (2) in
denying his motion to terminate child support, and (3) in
requiring him to post a $25,000 surety bond. We find no error
and affirm the judgment of the trial court.
By order dated April 18, 1994, the trial court ordered Mr.
Smyth to pay $2,227 per month for child support pendente lite.
On July 21, 1994, Mr. Smyth was convicted of money laundering in
violation of 18 U.S.C. 1956 (a)(3) and was sentenced to serve
nine years in a federal penitentiary, without possibility of
parole. On July 27, 1994, he filed a motion to modify his
support obligation, asserting a "substantial change in
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
circumstances, justifying a reduction or elimination in child
support." On September 2, 1994, Ms. Smyth moved to attach Mr.
Smyth's separate assets for payment of child support. After a
hearing was held on September 9, 1994, the trial court denied
both motions.
By decree of divorce a vinculo matrimonii entered November
8, 1994, the trial court required Mr. Smyth to pay $2,227 per
month for the maintenance and support of the parties' three minor
children. At that time, Mr. Smyth had accrued an arrearage of
$4,454 for the months of September and October 1994. The trial
court reduced this arrearage to judgment.
Mr. Smyth contends that the trial court erred in determining
that he had the ability to pay child support and in denying his
motion to modify his support obligation.
Code § 20-108 provides continuing jurisdiction to change or
modify a decree providing maintenance of minor children. "In
order to invoke the court's continuing jurisdiction to modify its
decree, the party seeking a change has the burden of proving by a
preponderance of the evidence, a material change in circumstances
justifying a modification of the decree." Edwards v. Lowry, 232
Va. 110, 112, 348 S.E.2d 259, 261 (1986).
A party seeking to reduce the amount of support payments for
minor children because of a change in financial condition must
make a full and fair disclosure of his ability to pay and show
that his lack of ability to pay is not due to his own voluntary
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act or neglect. Hammers v. Hammers, 216 Va. 30, 31-32, 216
S.E.2d 20, 21 (1975).
Mr. Smyth's diminution in income was the "direct consequence
of his voluntary wrongful act." Edwards, 232 Va. 113, 348 S.E.2d
at 261. He was convicted in federal court of money laundering
and was sentenced to serve nine years in a federal penitentiary.
He offered no evidence of inability to pay child support other
than this conviction. He failed to meet the second requirement
of Hammers, to prove "that the lack of ability to pay is not due
to any voluntary act or neglect." Antonelli v. Antonelli, 242
Va. 152, 154, 409 S.E.2d 117, 119 (1991). He "failed to meet the
burden of proving himself free of responsibility for his change
of circumstances, and was not entitled to a reduction in support"
based upon the loss of income caused by his conviction. Edwards,
232 Va. at 113, 348 S.E.2d at 261.
Mr. Smyth next contends that the trial court erred in
requiring him to post a $25,000 surety bond to secure his child
support obligation. We find no error. Code § 20-114 states:
Upon the entry, or thereafter, of any . . . decree for
support and maintenance for . . . a child or children
in a pending or concluded divorce suit, . . . the court
in its discretion may require the giving of
recognizance, with or without surety, for compliance
therewith, by the party against whom such order or
decree is entered.
Va. Code Ann. § 20-114.
We affirm the judgment of the trial court.
Affirmed.
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