COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Lemons ∗
Argued at Alexandria, Virginia
JOSEPH V. RINALDI
OPINION BY
v. Record No. 0239-99-4 JUDGE DONALD W. LEMONS
MAY 2, 2000
CHERYL DUMSICK, FORMERLY KNOWN AS
CHERYL RINALDI
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
Robin C. Gulick (Robin C. Gulick, P.C.), on
briefs), for appellant.
Benjamin M. Smith, III (David L. Duff;
David L. Duff, P.C., on brief), for appellee.
Joseph Rinaldi ("Rinaldi") appeals a child support decree
ordering him to continue payments to Cheryl Dumsick ("Dumsick")
for support of the parties' child, Joey Rinaldi ("Joey").
Appellant contends the trial court (1) erred when it found Joey
was "severely disabled" and "unable to live independently and
support himself" within the meaning of Code § 20-124.2 and (2)
abused its discretion by failing to deviate from the support
guidelines based upon Joey's independent financial resources.
For the reasons that follow, we affirm.
∗
Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
I. BACKGROUND
Rinaldi and Dumsick were divorced on November 29, 1982.
Pursuant to the decree, Rinaldi paid child support to Dumsick
for the support of Joey, who, on October 2, 1998, reached the
age of nineteen. Joey was born with cerebral palsy, which has
created a brain deficit known as "left hemiplegia." Joey's
condition has caused cognitive impairments and deficits with
reasoning, language, memory and attention. Joey has limited use
of his left limbs and limited vision in his left eye. His
intelligence quotient (IQ) score of 67 is in the mentally
retarded range, and he has the reading, language and math skills
of a fifth grader. Joey also suffers from "intractable
seizures" which cause uncontrollable twitching of his left side
and can develop into grand mal convulsions with loss of
consciousness. These seizures come without warning and the
frequency has been increasing over the past two years, now
occurring on a weekly basis.
Joey is a full time student in the Fairfax County public
schools. He is involved in vocational training and studying
office technology and automotive technology. Joey presently
works an average of seven and one-half hours per week at a Giant
Food Store loading groceries into cars. He is paid $5.25 per
hour. The money Joey earns is deposited directly into his bank
account. He uses these funds for personal "frills," or
non-necessities. When he reached the age of eighteen, Joey
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began receiving disability payments from the Social Security
Administration. These payments average $300 per month, but
fluctuate depending upon the amount of money Joey earns at Giant
Food. This money is also deposited in Joey's personal bank
account for his personal use.
In anticipation of Joey reaching age nineteen, Rinaldi
filed with the trial court a motion to terminate child support.
Dumsick subsequently filed a motion for an increase in, and
continuation of, child support.
On October 22, 1998, the trial court conducted an ore tenus
hearing on both motions. Pursuant to Code § 20-124.2(C) the
trial court ordered the continuation of monthly support for Joey
in the amount of $498.13 based on its finding that he is
"severely and permanently mentally or physically disabled,"
"unable to live independently and support himself," and "resides
in the home of the parent seeking or receiving child support."
II. ANALYSIS
Rinaldi concedes the permanency of Joey's condition, as
well as the fact that Joey resides in the home of Dumsick. On
appeal, Rinaldi challenges the trial court's findings that Joey
is severely disabled and that Joey is unable to live
independently and support himself. Additionally, Rinaldi
appeals the trial court's refusal to deviate from the guidelines
in view of Joey's earned income from Giant Foods and his
Supplemental Security Income (SSI) received as a result of his
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disability. Rinaldi maintains that the court abused its
discretion by failing to (1) use Joey's income as a
dollar-for-dollar offset against the guideline amount of child
support payable by the father; or (2) add Joey's income to
Rinaldi's income, calculate the guideline amount of child
support based upon Rinaldi's increased income figure, and then
give Rinaldi a credit against his child support obligation in an
amount equal to Joey's income.
A. Sufficiency of the Evidence
Code § 20-124.2(C) provides, inter alia, that the court may
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." In reviewing a sufficiency
challenge on appeal, "we consider the evidence in the light most
favorable to the party prevailing in the trial court."
Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d
28, 30 (1989). "[D]ecisions 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." Barnhill v. Brooks, 15 Va. App. 696, 699, 427 S.E.2d
209, 211 (1993).
At trial, Dumsick's evidence proved that since Joey was
nine months old, he has received medical care for both his
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physical disability and his mental disability. His physical
disability includes the loss of peripheral vision in his left
eye, the inability to use his left arm and hand, and the
occurrence of random, "intractable seizures." His mental
disability includes limited reasoning and judgment capabilities
and an IQ showing "borderline retardation." Joey's treating
physician testified that, in her expert medical opinion, his
disability was "moderate to severe" compared to other problems
which she has seen in her medical practice and that Joey would
be unable to support himself as "an independent adult person."
Joey's pediatrician also rendered his expert medical
opinion, stating that Joey is not capable of living
independently at the present time. According to him, Joey's
cerebral palsy has caused a left hemiplegia that has affected
Joey's motor skills. Joey had a stroke during his prenatal
period or during early infancy which left him weak on his left
side. He is cognitively impaired and has deficits in reasoning,
language skills, memory and attention.
Dumsick also presented expert testimony from a career and
transition expert with the Fairfax County public schools who
works with physically disabled children. She testified that
recent testing showed Joey possessing reading, math and language
skills consistent with a fifth or sixth grader. She then
explained the practical, vocational hardships imposed by these
limitations in Joey's basic skills. She also testified that
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Joey is not self-supporting and is not capable of living
independently.
Finally, Dumsick testified that Joey could not use his left
hand, had limited vision in his left eye, and suffers from
seizures. These seizures occur on a weekly basis and have
become more frequent over the past couple of years.
Rinaldi presented no contrary expert testimony, medical or
otherwise. Rinaldi's only evidence was that Joey calls his
father now and then and holds a part-time job as a courtesy
clerk for Giant Foods.
Joey's treating physician described his condition as
"moderate to severe." From this statement, and based on the
overwhelming, credible evidence, the trial court's conclusion
that Joey's disability was severe and that he could not support
himself and live independently is not plainly wrong or without
evidence to support it.
B. Calculation of Support and Failure to Deviate
Code § 20-108.2 delineates the presumptive amount of child
support based on the combined monthly adjusted parental gross
income. That code section specifically provides that gross
income "shall not include benefits from public assistance
programs as defined in § 63.1-87, federal supplemental security
income benefits, or child support received." Code
§ 20-108.2(C).
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Based upon that statutory exclusion, we held in Bennett v.
Commonwealth, 22 Va. App. 684, 472 S.E.2d 668 (1996), that a
non-custodial parent is not entitled to a credit or reduction in
his or her child support obligation as a result of the SSI
benefits the custodial parent receives for the disabled child's
disability. See id. at 695, 472 S.E.2d at 674. We stated,
"'SSI benefits received by a disabled child are intended to
supplement other income, not substitute for it . . . [, and] the
noncustodial parent's child support obligation is not impacted
by the receipt of SSI on the behalf of the disabled child.'"
Id. at 694-95, 472 S.E.2d at 673 (quoting Kyle v. Kyle, 582
N.E.2d 842, 846 (Ind. Ct. App. 1991)).
Rinaldi does not dispute the gross income calculation but
argues that the trial court abused its discretion in not
deviating from the presumptive support obligation based on the
SSI and wages from employment received by Joey. Code
§ 20-108.1(B) provides as follows:
[T]here shall be a rebuttable presumption in
any judicial or administrative proceeding
for child support . . . that the amount of
the award which would result from the
application of the guidelines set out in
§ 20-108.2 is the correct amount of child
support to be awarded. In order to rebut
the presumption, the court shall make
written findings in the order, which
findings may be incorporated by reference,
that the application of such guidelines
would be unjust or inappropriate in a
particular case. The finding that rebuts
the guidelines shall state the amount of
support that would have been required under
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the guidelines, shall give a justification
of why the order varies from the guidelines,
and shall be determined by relevant evidence
pertaining to the following factors
affecting the obligation, the ability of
each party to provide child support, and the
best interests of the child:
* * * * * * *
9. Independent financial resources, if any,
of the child or children . . . .
In this case, the trial court expressly declined to deviate
from the guidelines. Accordingly, it did not make any finding
on the record that the application of the guidelines would be
unjust or inappropriate. In determining whether application of
the guidelines would be unjust or inappropriate, we believe the
trial court properly could consider as an independent financial
resource of the child both his SSI and his wages from part-time
employment. See Code § 20-108.1(B)(9); Barker v. Hill, 949
S.W.2d 896, 897-98 (Ky. Ct. App. 1997) (rejecting an automatic
credit or offset to the noncustodial parent's support
obligation, but stating that it would be appropriate to view the
disabled child's SSI benefits as independent financial resources
of the child).
However, the child support guidelines in Code § 20-108.2
are presumed to be correct unless rebutted. The guidelines must
be followed unless the trial court finds that their application
would be unjust or inappropriate. Regarding the trial court's
failure to deviate based on the SSI benefits received by Joey,
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we hold that "[t]here is nothing inherently unjust or
inappropriate about making a father support his child, if he is
able to do so, before looking to a government welfare program
that is intended to supplement the resources of the needy."
Barker, 949 S.W.2d at 898. Regarding the court's failure to
deviate based on Joey's wages, we note that the evidence
established gross wages of $170 per month but did not reflect
the net income actually received by Joey.
The decision not to deviate from the guidelines is within
the trial court's discretion and is to be determined upon
consideration of the totality of the circumstances in each case.
We cannot say the trial court's decision was plainly wrong or
without evidence to support it. The order of support is
affirmed.
Affirmed.
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