Kathy D. Mann v. Jeffrey S. Smith

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
JEFFREY S. SMITH
v. Record No. 0206-01-2
KATHY D. MANN MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
KATHY D. MANN DECEMBER 18, 2001
v. Record No. 0647-01-2
JEFFREY S. SMITH
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Ronald S. Evans (Brenner, Evans & Yoffy, P.C.,
on briefs), for Jeffrey S. Smith.
Robert L. Flax (Flax & Stout, on briefs), for
Kathy D. Mann.
Jeffrey S. Smith contends on appeal that the trial court
erred when it denied his petition to reduce his child support
obligation. Smith specifically argues that the evidence fails
to support the court's finding that Gary, a child of the parties
who was over age eighteen, was "mentally deficient and entitled
to support." Kathy D. Mann cross appeals on the ground that the
trial court failed to impute income to Smith and failed to
include as part of Smith's gross income certain funds received
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
from his father in 1998. For the reasons that follow, we
affirm.
I.
Procedural History
The parties' marriage was dissolved by final decree of
divorce entered on November 29, 1990. Three children were born
of the marriage: Jeffrey Smith, born on December 18, 1981, Bart
Smith, born on June 26, 1978, and Gary Smith, born on July 19,
1975.
On March 8, 1991, the trial court ordered Smith to pay $775
per month for the support, maintenance and education of the
parties' three children. On June 23, 1993, the court decreased
the amount to $535 per month, because Smith had custody of one
of the children, to continue until further order of the court.
On July 19, 1993, Gary Smith turned eighteen. On June 26,
1996, Bart Smith turned eighteen. On August 7, 1996, Smith
petitioned to further reduce his child support obligation
claiming that "the two oldest children have been emancipated by
age." On August 14, the matter was reinstated.
On March 1, 1999, the trial court found Gary Smith
"mentally deficient and entitled to support." It applied the
child support guidelines and ordered Smith to pay $292.42 a
month in child support for his two unemancipated children. The
court declined to impute income to Smith or for funds received
from his father in 1998.
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II.
Analysis
A. Smith's Appeal
Code § 20-124.2(C) provides in pertinent part:
The court may also order the
continuation of support for any child
over the age of eighteen who is (i)
severely and permanently mentally or
physically disabled, (ii) unable to
live independently and support himself,
and (iii) resides in the home of the
parent seeking or receiving child
support.
Smith appeals the trial court's finding that Gary Smith,
who is over the age of eighteen, was "mentally deficient and
entitled to support." Smith concedes that Gary is seriously
mentally disabled, but contends the evidence failed to prove
that his disability is "permanent." We disagree.
"Decisions concerning child support rest within the sound
discretion of the trial court and will not be reversed on appeal
unless plainly wrong or unsupported by the evidence." Smith v.
Smith, 18 Va. App. 427, 433, 444 S.E.2d 269, 274 (1994).
Therefore, we review the evidence in the light most favorable to
Mann, the party prevailing below on this issue. Germek v.
Germek, 34 Va. App. 1, 8, 537 S.E.2d 596, 600 (2000).
Kent McDaniel, Gary's treating psychiatrist since July
1997, testified that Gary suffers from a learning disability,
depression, attention deficit hyperactivity disorder, a minimal
brain dysfunction syndrome, and, most significantly, chronic
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disorganized schizophrenia. Disorganized speech, disorganized
thoughts, disorganized behavior, and inappropriate or flat
affect characterize chronic disorganized schizophrenia. His
daily medication includes risperdal, ritalin, and an
antidepressant. Prior to beginning treatment with McDaniel,
Gary was hospitalized for two years at Central State Hospital
for schizoaffective disorder, bipolar type, substance abuse
problems, and a psychosocial and environmental problem. 1 He was
discharged in January 1997 on the condition that he receive
medication and "intensive community follow-up" at Lakeside
House, a day treatment program for mentally ill persons. The
discharge notice designated him as mentally ill, not recovered.
Addressing the issue of permanency, McDaniel further
testified that Gary's prognosis is complicated because his
illness does not present a classic case of chronic disorder
schizophrenia. Notwithstanding the difficulties posed by Gary's
syndrome, McDaniel stated that his prognosis is "poor in the
sense that we wouldn't expect much change unless there's some
kind of treatment that would benefit Gary." No such available
treatment was identified by McDaniel. According to McDaniel,
Gary is unlikely to ever be able to live on his own or support
1
According to McDaniel, a diagnosis of schizoaffective
disorder, bipolar type, is based on the presence of a bipolar
mood disorder and psychotic symptoms such as disorganized
behavior, hallucinations or illusions.
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himself. On cross-examination, he agreed that he was not able
to say that Gary is "permanently mentally disabled."
This medical and testimonial evidence, viewed as a whole,
supports the trial court's conclusion that Gary Smith is
"severely and permanently mentally disabled" within the meaning
of Code § 20-124.2(C). Smith argues, however, that, because
McDaniel could not opine that Gary is "permanently" mentally
disabled, Mann failed to sustain her burden of proof on that
issue. We disagree.
The law is well settled in Virginia that the fact finder
must consider the evidence as a whole, and is not required to
accept the opinion of an expert as conclusive. McLane v.
Commonwealth, 202 Va. 197, 206, 116 S.E.2d 274, 281 (1960);
Piatt v. Piatt, 27 Va. App. 426, 434, 499 S.E.2d 567, 571
(1998); Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665,
668 (1997) (en banc); Blevins v. Commonwealth, 11 Va. App. 429,
432, 399 S.E.2d 173, 175 (1990); Lassen v. Lassen, 8 Va. App.
502, 507, 383 S.E.2d 471, 474 (1989); Godley v. Commonwealth, 2
Va. App. 249, 251, 343 S.E.2d 368, 370 (1986). In this case,
the trial judge credited McDaniel's testimony stating that
Gary's condition is chronic and "doesn't go away and doesn't get
better." The court discounted McDaniel's inability to opine
that Gary is "permanently mentally disabled," resolving any
conflict posed by this response in favor of his testimony
establishing permanency as a matter of fact, and in light of
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McDaniel's explanation that the issue of permanency, was, in
part, contingent on what new treatments may become available.
See Street, 25 Va. App. at 387, 488 S.E.2d at 688 (noting that
the trier of fact "has the discretion to accept or reject any of
the witness' testimony"); Barnes v. Wise Fashions, 16 Va. App.
108, 111, 428 S.E.2d 301, 303 (1993) (trial court may resolve
any apparent conflicts in the testimony of an expert). We,
therefore, affirm the trial court's finding that Gary is
permanently mentally disabled and entitled to continued support
from his father.
B. Mann's Appeal
Mann appeals the trial court's calculation of the child
support award on the ground that it erroneously declined to
impute income to Smith based on his voluntary underemployment in
accordance with Code § 20-108.1(B)(3). 2 She contends that Smith
was voluntarily underemployed in 1998 because he chose to pursue
a lawn care business rather than the more lucrative employment
of caring for his sister. Her contention is without merit.
The trial court's "refusal to impute income will not be
reversed unless plainly wrong or unsupported by the evidence."
Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780,
2
On appeal, Mann also argues that the trial court erred by
failing to include in Smith's income a loan from his father of
$4,165 in 1998, which he had not repaid by the time of trial.
Because Mann failed to raise this issue before the trial court,
we will not consider it here. Rule 5A:18.
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784 (1999). Furthermore, "[t]he burden is on the party seeking
imputation to prove that the other parent was voluntarily
foregoing more gainful employment, either by producing evidence
of a higher-paying former job or by showing that more lucrative
work was currently available." Niemiec v. Dep't of Soc. Servs.,
Div. of Child Support Enforcement, 27 Va. App. 446, 451, 499
S.E.2d 576, 579 (1998) (citations omitted).
The evidence proved that Smith earned approximately $30,000
in 1996 selling life insurance at Virginia Asset Management,
cutting grass, and providing nursing care for his sister, who
was described as a grand mal epileptic. Smith's sister was
placed in his care for about four and a half months when her
parents could no longer afford the costs of the treatment center
that had been caring for her. Smith's sister moved out of his
home in October 1996, and he thereafter left his job at Virginia
Asset Management in December 1996. Hoping to increase his
income, he started a lawn care business, Environmental Turf Care
in January 1997. Three or four months later, his sister sought
to return to Smith's home, a request that Smith refused because
he was "so busy with his new business." She lived with her
parents at the time of the hearing.
Mann presented no evidence that Smith asked his sister to
leave or otherwise voluntarily terminated his employment as her
caretaker in October 1996. Nor did she provide evidence that
Smith would be paid for his caretaker services had he acceded to
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his sister's request, and in what, if any, amount. That failure
of proof precludes a finding that Smith "was voluntarily
foregoing more gainful employment." Niemiec, 27 Va. App. at
451, 499 S.E.2d at 579 (holding that party seeking imputation of
income must produce evidence that former spouse voluntarily left
a higher paying job or "that more lucrative work was currently
available"); see also Hur v. Dep't of Soc. Servs., Div. of Child
Support Enforcement, 13 Va. App. 54, 61, 409 S.E.2d 454, 459
(1991) (holding that party seeking imputation of income must
provide sufficient evidence to "enable the trial judge
reasonably to predict what amount could be anticipated").
Accordingly, we hold that the trial court properly
determined that Smith was not voluntarily underemployed and
affirm its decision not to impute income to Smith in calculating
the child support award.
Affirmed.
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