COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Salem, Virginia
VICTOR RAY LAYMAN, II
OPINION BY
v. Record No. 2462-96-3 CHIEF JUDGE NORMAN K. MOON
AUGUST 5, 1997
JANE ELIZABETH GRIER LAYMAN
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Roy B. Willett, Judge
Jonathan Rogers (Jonathan Rogers, P.C., on
briefs), for appellant.
Harvey S. Lutins (J. Emmette Pilgreen, IV;
Lutins, Shapiro & Kurtin, on brief), for
appellee.
Victor Ray Layman, II ("husband") appeals the order of the
trial court denying his petition for modification of child
support. Husband asserts that the trial court erred in: (1)
finding that he was voluntarily unemployed as a result of his
incarceration and was therefore not entitled to a reduction in
child support; and (2) refusing to determine his child support
obligation based upon imputed legally earned income. We hold
that the trial court did not err in finding that husband's
incarceration constituted voluntary unemployment. Accordingly,
we affirm.
Husband and Jane Elizabeth Grier Layman ("wife") were
married on December 19, 1981. From 1981 to 1996 husband averaged
$16,000 a year in legally earned income. In 1990, husband's
father died and husband inherited $100,000, which he used to open
a real estate business, the "Academy of Real Estate." The
parties separated shortly thereafter and entered into a
separation agreement in which husband agreed to pay $1,100 in
monthly child support. Despite depleting his inheritance and
incurring substantial debt, husband was unable to maintain his
business, which ultimately failed in 1992. Husband had no legal
source of income during 1991 and 1992.
The parties' final decree of divorce, incorporating the
parties' separation agreement, was entered on February 6, 1992.
Husband testified that he began growing and selling marijuana in
1992 in order to "pay off all of the massive amount and [sic]
debts and avoid bankruptcy" and so that he could continue to
support his children. Husband was arrested in December, 1994,
for growing marijuana and was subsequently convicted and
sentenced to a five year prison term. On May 30, 1996, husband
petitioned the trial court for a reduction in child support.
Finding that husband's crime resulting in incarceration
constituted voluntary unemployment, the trial court denied
husband's petition.
In a petition for modification of child or spousal support,
the moving party must prove a material change in circumstances
that warrants modification of support. Yohay v. Ryan, 4 Va. App.
559, 566, 359 S.E.2d 320, 324 (1987). Here, the evidence shows
that husband experienced a material change in circumstances. At
the time of the entry of the final decree of divorce, husband was
actively pursuing a real estate business, financed in large part
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by his inheritance of $100,000. At the time of husband's
petition for modification, husband was incarcerated.
Whether this material change warranted modification of
husband's support award requires that we address the question of
whether a parent's incarceration can constitute voluntary
unemployment under Code § 20-108.1(B)(3). Considering a case in
which a parent sought reduction of his support obligation after
being fired from his job for stealing, the Supreme Court held
that:
In the case before us, it is undisputed that
[petitioner's] diminution of income was the
direct consequence of his voluntary, wrongful
act. After receiving a direct warning from
his employer following a previous theft, he
was fired for stealing again. He failed to
meet the burden . . . of showing himself free
of responsibility for his change in
circumstances, and was not entitled to a
reduction in [child] support based upon the
diminution of income caused by the loss of
his job.
Edwards v. Lowery, 232 Va. 110, 112-13, 348 S.E.2d 259, 261
(1986). Here, husband similarly attempts to shift to his wife
and children the consequences of his wrongdoing. In keeping with
the principle articulated in Edwards, we hold that a parent's
incarceration may be found to constitute voluntary unemployment
under Code § 20-108.1(B)(3), and, consequently, it may preclude a
reduction of a support obligation based on a loss of income
resulting from that incarceration.
Accordingly, we affirm the trial court's finding that
husband's incarceration did not entitle him to a reduction in
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support.
Affirmed.
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