Charles D. Bennett v. Commonwealth, DSS

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Overton
Argued at Alexandria, Virginia

CHARLES D. BENNETT

v. Record No. 1364-95-4 OPINION BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA, JULY 16, 1996
VIRGINIA DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. AUDREY BENNETT

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert W. Wooldridge, Jr., Judge

Yvonne DeBruyn Weight (Eric Michael Weight;
Weight & Weight, on briefs), for appellant.

Anne Wren Garrett, Special Counsel (Betsy S.
Elliott, Senior Special Counsel; Nancy J.
Crawford, Regional Special Counsel, Division
of Child Support Enforcement; 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,
on brief), for appellee.

Charles D. Bennett appeals the trial court's order which

refused to modify his monthly child support obligation. He

contends that the trial court erred by (1) requiring him to prove

a material change in his former wife's circumstances, in addition

to the change in his circumstance, before considering the issue

of imputing income to her, (2) not imputing income to her, (3)

not including in her gross income the social security and federal

housing benefits that she receives, and (4) retroactively

modifying his child support obligation for October 1994. We find
no reversible error and affirm the trial court's order.

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 FACTS AND PROCEDURAL HISTORY

Charles D. Bennett (father) and Audrey Bennett (mother)

married in 1983 and separated in 1988. They had three children.

The three children have resided with their mother following the

separation. Isaac, the youngest child, suffers from Downs

Syndrome.

Following the initial support order, the father filed a

motion for abatement of support because his job was being

terminated as a result of corporate downsizing. At the

modification hearing, the parties stipulated that they had no

extraordinary medical expenses, no day care expenses, and no

health insurance expenses. They also stipulated that the mother
1
receives $731 per month in Section 8 federal housing benefits
and $330 per month in Supplemental Security Income (SSI) benefits

for Isaac's disability. 2 At the time of the hearing, Isaac was

attending school about three hours each weekday, but the court

found he "require[d] a high level of monitoring and attention"

from the mother.

As a consequence of the foregoing proceeding, the trial

court reduced the father's monthly child support obligation to

$170. In that proceeding, the court refused to impute income to

the unemployed father, but the judge stated in his letter opinion

that he "will continue this matter for six months . . . to review
1
See 42 U.S.C. § 1437f(a).
2
See 42 U.S.C. § 1381.

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(among other matters) [the father's] efforts to find employment."

Also, in that proceeding, the trial judge refused to include as

part of the mother's gross income the social security benefits or

federal housing benefits which she receives for Isaac's

disability, and refused to impute income to the mother because

she was "fully and properly occupied with the demands and special

needs of Isaac."

Following that proceeding, on December 14, 1994, the father

accepted permanent employment with MFSI, Inc. Just before doing

so, he had earned, on a one-time basis during October 1994,

$2,554.96 from temporary employment with Stephens Engineering

Company.
On January 17, 1995, the mother filed a motion for review of

child support, alleging a material change in circumstance. At a

February 9, 1995 hearing, the parties stipulated that, after the

mother had obtained approval in August 1994 from the Prince

William County public school system to teach the children at

home, she had removed the two oldest children from public school.

They also stipulated that as of the date of the filing of the

motion, Isaac was attending school all day for three days per

week and was in day care the other two days.

By decree dated May 22, 1995, the trial court increased the

father's monthly child support obligation to $841, based on the

presumptive child support guidelines in Code § 20-108.2 for his

gross monthly income of $2,933 and the mother's gross monthly

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income of $100. The court also ordered that he pay "a one time

adjustment" of $574 for child support based upon his October 1994

income. The trial court included the $574 with the $13,884.53

arrearage in child and spousal support found to be due. The

court further found that "there has been no material change in

[the mother's] circumstances such as to impute income to [her]."

MATERIAL CHANGE OF CIRCUMSTANCE

A party moving to modify a support decree must prove a

material change in circumstance following the last support order

before the trial court is required to consider modifying the

support award. See Thomas v. Thomas, 217 Va. 502, 505, 229

S.E.2d 887, 889-90 (1976). The change in circumstance also must

warrant a modification of the support. Furr v. Furr, 13 Va. App.

479, 481, 413 S.E.2d 72, 73 (1992). The father contends that the

trial court erroneously found "there ha[d] been no material

change in [the mother's] circumstances" by virtue of Isaac being

in school or day care the entire day, and therefore, erred by

refusing to consider whether to impute income to the mother.

The mother's petition to increase support was based on the

change in condition arising from the father's permanent

employment. The trial court did not refuse to impute income to

the mother because the mother had filed the petition or because

the father had not alleged or proved a change in her

circumstances. In fact, the judge stated that he considered the

father's argument as "a motion to reconsider." The judge

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thereafter ruled that the changed condition of Isaac being in

school and day care did not warrant a finding that the mother was

voluntarily unemployed. Accordingly, the court refused to impute

income to her. Thus, the trial judge did not impose an

additional burden on the father to prove changes in both his and

the mother's circumstances and did not refuse to consider whether

to impute income to the mother.

IMPUTATION OF INCOME
In November 1994, the court refused to impute income to the

mother because it found that she was "fully and properly

occupied" with caring for Isaac. However, at the February 9,

1995 hearing, the parties stipulated that as of that date Isaac

was spending three weekdays in school and the remaining two days

in day care at state expense. The father contends, therefore,

that because the mother is no longer required to remain at home

to care for Isaac, the trial court erred by declining to impute

income to the mother in calculating their respective child

support obligations. Consequently, he argues that he is being

required to pay a disproportionate amount of support for the

children.

Both parents owe a duty of support to their minor children.

Code § 20-61; Featherstone v. Brooks, 220 Va. 443, 448, 258
S.E.2d 513, 516 (1979). A trial court has discretion to impute

income to either or both the custodial or noncustodial parent who

is voluntarily unemployed, provided that income may not be

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imputed to a custodial parent except when the child is in school

or child care services are available. See Code § 20-108.1(B)(3);

Sargent v. Sargent, 20 Va. App. 694, 703, 460 S.E.2d 596, 600

(1995) ("A trial court may impute income to the spouse receiving

child . . . support under appropriate circumstances") (emphasis

added). The trial court's decision to not impute income to the

mother will be upheld on appeal unless it is "'plainly wrong or

unsupported by the evidence.'" Id. at 703, 460 S.E.2d at 600

(quoting Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d
875, 876 (1994)).

When the 1994 support order was entered, which did not

impute income to the mother, the trial court found that Isaac

attended school for approximately three hours each weekday and

that "[h]e requires a high level of monitoring and attention."

The mother's time and responsibility in caring for Isaac have

changed. Isaac attends school and day care all day each weekday.

Although the evidence does not show the frequency or extent to

which Isaac's mother must take him home from school or day care

or respond to his problems, the mother's counsel avowed that
[s]ometimes [Isaac] doesn't respond well to
[the instruction and care he is given at
school] and his mother has to go to the
school and intervene or be with him. When he
goes to day care, if he can't sustain the day
care situation she has to be there and
intervene or take him home.

In Hamel v. Hamel, 18 Va. App. 10, 13, 441 S.E.2d 221, 223

(1994), we held that the trial court erred by refusing to impute

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income to the noncustodial parent who had voluntarily quit her

job. In Brody v. Brody, 16 Va. App. 647, 650-51, 432 S.E.2d 20,

22-23 (1993), we held that the trial court erred by not imputing

income to the noncustodial parent who voluntarily left her job to

stay home and care for a child from another marriage. A

custodial parent has no less responsibility to provide support to

a minor child than does the noncustodial parent. Thus, the trial

court shall impute income to a custodial parent who is

voluntarily unemployed or underemployed where the age of the

child and circumstances permit the custodial parent to be

gainfully employed. Code § 20-108.1(B)(3).
The facts here are distinguishable from those in Hamel and

Brody. Here, the mother has custody of a profoundly disabled

child who "requires a high level of monitoring and attention."

She did not voluntarily leave a job to assume this

responsibility. Although Isaac is in school and day care each

weekday, the mother has to be available to respond to his needs

or to take him home on occasion. Although the evidence does not

show the frequency and extent to which the mother is called to

take Isaac out of school or day care, Isaac is profoundly

disabled and only recently had his school days and day care

extended beyond three hours. The trial judge was familiar with

Isaac's condition and previously had found that he required a

high level of monitoring and attention even when Isaac was in

school only three hours each weekday.

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 The father introduced no evidence to show the availability

of a job that would tolerate absences or leaving on unscheduled

intervals. Furthermore, after Isaac comes home each day, the

mother must devote her full time and attention to caring for him.

Although the mother cannot absolve herself of the legal

obligation to support her dependent children by voluntarily home

schooling them, and thereby effectively removing herself from the

labor market, the trial judge did not abuse his discretion by

considering that in addition to caring for a profoundly disabled

child, the mother is home schooling two other children.
Furthermore, the mother has not worked for over ten years

and no evidence was introduced regarding the availability of jobs

for her or the amount of income she could earn. See Sargent, 20

Va. App. at 704, 460 S.E.2d at 600-01 ("No evidence was presented

about the availability of a factory position or the hours or

shifts that would be required"). The party contending that

income must be imputed is required "to produce evidence that [is]

sufficient to 'enable the trial judge reasonably to project what

amount could be anticipated' had the mother [procured]

employment." Brody, 16 Va. App. at 651, 432 S.E.2d at 22

(quoting Hur v. Div. of Child Support Enforcement ex rel Klopp,

13 Va. App. 54, 61, 409 S.E.2d 454, 459 (1991)).

On these facts, the trial judge did not abuse his discretion

by declining to impute income to the mother.

SSI AND FEDERAL HOUSING BENEFITS

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 Code § 20-108.2(C) defines "gross income" broadly for

purposes of calculating child support. "'[G]ross income' shall

mean all income from all sources." Id. However, "gross income"

does "not include benefits from public assistance programs as

defined in § 63.1-87, federal supplemental security income

benefits, or child support received." Id. "'Assistance' and

'public assistance' mean and include aid to dependent children,

auxiliary grants to the aged, blind and disabled, medical

assistance, food stamps, general relief, fuel assistance, and

social services." Code § 63.1-87. The father contends that the

social security and federal housing benefits the mother receives

do not fall within the exception in Code § 20-108(C) to "gross

income."
In Whitaker v. Colbert, 18 Va. App. 202, 205, 442 S.E.2d

429, 431 (1994), on which the father relies, we held that social

security benefits received by a parent for a personal disability

are income for purposes of Code § 20-108.2. See also
Commonwealth v. Skeens, 18 Va. App. 154, 158, 442 S.E.2d 432, 435

(1994) ("The payment of money to the child's custodian in the

form of Social Security payments is an indirect payment from the

obligor parent for which the parent should receive credit"). The

father's reliance on Whitaker is misplaced because the father is

not the disabled party. In Whitaker, we stated that
[t]he social security benefits received by
the children are not gratuities, but are
entitlements earned by [the parent] through
his earlier employment. They are a
substitute for his lost ability to provide

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 for the children through the fruits of future
employment.

18 Va. App. at 205, 442 S.E.2d at 431. Here, Isaac's benefits

are not based upon the father's future employment and they do not

substitute for the father's loss of earnings or support.

Although the parents' income is taken into account in

determining a disabled child's eligibility and amount of benefits

under the SSI program, the primary purpose of the program is to

provide special assistance to disabled children in low-income

households. See H.R. Rep. No. 231, 92d Cong., 2d Sess.,

reprinted in 1972 U.S.C.C.A.N. 4989, 5133-34. "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 a disabled child." Kyle v. Kyle, 582

N.E.2d 842, 846 (Ind. Ct. App. 1991). Accordingly, the father is

not entitled to a credit or reduction in his child support

obligation as a result of the SSI benefits the mother receives

for Isaac's disability. See Code § 20-108.2(C) (providing that

gross income does not include "federal supplemental security

income benefits"); see also Lovett v. Lovett, 428 S.E.2d 874, 876

(S.C. 1993) (holding that "Husband was not entitled to offset his

support obligation by the amount of Social Security benefits

awarded children as a result of [Wife's] disability").

Like SSI benefits, Section 8 federal housing benefits are

also supplemental in nature because they are intended to provide

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special assistance to low-income families. See 42 U.S.C.

§ 1437f(a) ("For the purpose of aiding low-income families in

obtaining a decent place to live and of promoting economically

mixed housing, assistance payments may be made with respect to

existing housing in accordance with the provisions of this

section"); 24 C.F.R. § 880.101(a)(1). Therefore, we hold that

the federal housing benefits the mother receives qualify as

"public assistance" under Code § 63.1-87, and that the trial

court did not err by declining to include the SSI benefits and

the housing benefits in the mother's gross income.
OCTOBER 1994 INCOME

The trial court ordered that the father's child support

obligation shall include a "one time adjustment of $574.00" for

income he earned during October 1994 "on which he paid nothing

for the support of his family." Accordingly, the court included

that amount in the total arrearage of $14,458.53 as of February

1, 1995. The father contends that the court exceeded its

authority by retroactively modifying the support order as it

applied to the month of October 1994. He argues that the past

support obligation, which included October 1994, was vested and

fixed by judgment.

A trial court may not retroactively modify a child support

decree to cancel a support arrearage or to relieve a parent of an

accrued support obligation. Cofer v. Cofer, 205 Va. 834, 838-39

140 S.E.2d 663, 666-67 (1965); Taylor v. Taylor, 10 Va. App. 681,

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683-84, 394 S.E.2d 864, 866 (1990). Past due installments become

vested and are not subject to change. Taylor, 10 Va. App at 683,

394 S.E.2d at 865-66. A court may only modify a support order to

be effective prospectively. Id. The order may be made effective

"with respect to any period during which there is a pending

petition for modification, but only from the date that notice of

such petition has been given to the responding party." Code

§ 20-108. The court may modify its support order upon motion of

any party in interest or upon its own motion. Id. We hold that

the prohibition announced in Cofer against retroactive

modifications to relieve support obligations applies with equal

force to prevent a trial court from retroactively modifying its

support order to increase a party's past support obligation.

We do not, however, view the trial court's one time award of

$574 as a retroactive modification or increase in a past due or

vested amount of support. Rather, we view the trial court's

award, which was predicated on its own motion pursuant to the

authority granted by Code § 20-108, as ordering the father to pay

on a one time basis, an amount based on recent earnings as part

of his current support obligation. The fact that the court's

award was based on past earnings does not render it a

modification of a prior order or award or prevent the court from

making a one-time lump sum child support award when the

circumstances so justify. See Carter v. Thornhill, 19 Va. App.

501, 507, 453 S.E.2d 295, 299 (1995). Frequently, a one-time

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past event, such as an inheritance or liquidation of an asset or

other windfall that has already occurred, will justify a

prospective one-time award of support. Such an award or

modification operates prospectively, not retroactively. By

declaring the amount due and payable and including it in the

arrearage, the court did not retroactively modify its support

order. See Dziarnowski v. Dziarnowski, 14 Va. App. 758, 762, 418

S.E.2d 724, 726 (1992) ("When a trial court reaches the correct

result for the wrong reason, its judgment will be upheld on

appeal"). Therefore, we affirm the trial court's order

establishing a one-time monthly child support obligation of $574.
For the foregoing reasons, we affirm the trial court's

order.

Affirmed.

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Benton, J., concurring.

I join in the opinion except a portion of the section styled

Imputation of Income.

The evidence established that the youngest child, who is

disabled, attends school and day care all day each weekday. I

find nothing in the record that established that the mother has

any greater need to visit the youngest child's school than any

other working parent who has children in school. No evidence

proved either the frequency of her visits or the length of her

visits to the school.
The evidence further established that the mother voluntarily

removed the two older children from the public school system to

"home school" them herself. I believe that the record proved

that the mother's unavailability to seek employment was based

solely upon her voluntary decision to "home school" two of her

children. In deciding to remove the two older children from

school, she voluntarily chose "the convenience or personal

preference . . . to remain unproductive . . . so as to avoid

support obligations." Hur v. Virginia Dep't of Social Servs., 13

Va. App. 54, 60, 409 S.E.2d 454, 458 (1991). Thus, I would hold

that her decision to "home school" her children was a voluntary

decision taken "to the detriment of [her] support obligations to

the children." Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d

20, 22 (1993).

I concur in the judgment, however, because I agree with the

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majority's additional rationale that the father failed to

establish that the mother, who has been unemployed since 1985,

could find employment. The statement of facts recites that

"[n]either party presented evidence as to employment available to

[the mother] given her skills and experience." Thus, I would

hold, not that the evidence failed to prove a material change in

circumstance, but that the evidence failed to prove the

availability of employment and was insufficient to "enable the

trial judge reasonably to project what amount [of income] could

be anticipated" if employment was available to the mother. Hur,

13 Va. App. at 61, 409 S.E.2d at 459. Accordingly, I would

uphold the trial judge's ruling with respect to imputed income

only because, as he found, "there was insufficient evidence of

any income that could be imputed to [the mother]."

Except as stated above, I concur in the remainder of the

opinion and would affirm the judgment.

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