COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia
JOHN WILLIAM KENNEY
MEMORANDUM OPINION * BY
v. Record No. 2306-01-4 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 13, 2002
CATHY ANDREA KENNEY
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Matthew S. McConnell for appellant.
J. Douglas Griffin for appellee.
On December 19, 2000 the district court ordered John
William Kenney (father) to pay Cathy Andrea Kenney (mother) the
amount of $1,287.43 per month to support their children. Due to
a mathematical error, the court amended its order to require
father to pay $1,388.80 per month.
On January 16, 2001, father filed an emergency motion to
suspend his child support obligation to his children due to an
automobile injury. The district court lowered his monthly
obligation to $600 per month. Father appealed to the circuit
court. The circuit court denied father's motion to suspend
child support. It is from this decision that father appeals.
For the reasons that follow, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Analysis
Father claims that the evidence does not support the trial
court's denial of his motion to suspend child support. We
disagree and, therefore, affirm.
"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). It is
the province of the fact finder to determine the credibility of
witnesses, their veracity, and the weight to be given their
testimony. Brown v. Commonwealth, 156 Va. 947, 951, 157 S.E.
567, 571 (1931). Accordingly, we view the evidence in the light
most favorable to mother, the party prevailing below on this
issue. Germek v. Germek, 34 Va. App. 1, 8, 537 S.E.2d 596, 600
(2000).
Where a party seeks to modify child support, he has the
burden of proving 1) a material change in circumstances since
the most recent child support order 2) that warrants
modification of that party's support obligation. Yohay v. Ryan,
4 Va. App. 559, 359 S.E.2d 320 (1987). To determine whether a
modification is justified, the trial court must "consider[] the
present circumstances of both parties and the benefit of the
children." Watkinson v. Henley, 13 Va. App. 151, 156, 409
S.E.2d 470, 473 (1991).
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The mere fact of a material change in the
obligor parent's income, however, does not
necessarily warrant a reduction in the
existing child support obligation. The
[court] is required to consider all the
factors and guidelines enumerated in the
Code for making such determinations and
enter an award appropriate to the
circumstances as they exist at that time.
Rawlings v. Rawlings, 20 Va. App. 663, 670, 460 S.E.2d 581, 588
(1995). For instance, "[w]here appropriate, the court shall
consider the willingness and availability of the noncustodial
parent to provide child care personally in determining whether
child-care costs are necessary or excessive." Code
§ 20-108.2(F). Furthermore, we bear in mind the well-settled
rule that in any child support case, "[t]he best interest of the
child or children is the paramount and guiding principle in
setting child support . . . ." Watkinson, 13 Va. App. at 158,
409 S.E.2d at 474.
In this case, father claims that he was physically unable
to care for the children due to an injury he sustained in an
automobile accident on December 25, 2000. The trial court found
that father's injury constituted a material change in
circumstances, but did not justify a modification in support.
The trial court found that mother was in need and father was
able to assist in providing for his children, specifically
noting that father "[sat] idly by while costs of child care
adversely affect[ed] the mother's ability to provide for the
children's necessities." The evidence supports this decision.
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Father claims, however, that the trial court erred in
determining that he was able to care for his children because
"[t]here was no evidence produced by [mother] that [he] was
physically able to watch the Parties' minor children." We
disagree.
Although father testified that his injuries prevented him
from walking and thus caring for his children, the trial court
was not required to accept that testimony. See Brown, 156
Va. at 951, 157 S.E. at 571 (holding that the weight accorded
testimony is within the discretion of the trier of fact).
Rather, the trial court, in its discretion, credited the
testimony of mother, who stated she asked father to provide
childcare for the children but he refused because "[h]e doesn't
want to."
The court did not credit father's testimony, in part,
because he had testified dishonestly in response to several
questions and provided truthful answers only upon further
examination. At trial, father initially denied several sources
of income and expenditures that he later acknowledged, upon
further inquiry. He admitted that he had a checking account
primarily in his name that he shared with his female roommate,
although initially testifying that he had no checking account.
He admitted that he had an account with J.B. Robinson Jewelers
where he had purchased two 14-karat gold bridal sets for
$1,699.10 subsequent to his injury, after denying any such debt.
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Finally, he claimed that he had obtained no loans since his
injury, but then admitted to procuring an automobile loan on
which he paid $840 per month.
Mother also presented evidence that father was able to
financially support his children but chose to spend his income
elsewhere. In addition to the expenses noted above, father
testified that he signed for purchases with his Sears card since
his injury, that he paid $320 per month on a loan for his Mazda
Miata, $120 per month for car insurance, and that all his
monthly automobile payments were current. Mother also testified
that father expressed a desire to sign over his parental rights
to avoid paying child support.
Finally, the evidence supports the trial court's finding
that the children needed father's support. Mother testified
that she was unable to provide the children with needed clothing
and good meals, that she had borrowed money from all available
sources, and that she was unsure of how she would pay her
expenses. She stated that she incurred $322 in work-related
childcare expenses per week. She testified that she had not
received any child support, clothing, or anything else from
father since his injury. Specifically, she recounted that she
begged father to purchase clothing for the children on his Sears
card, but he refused.
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Thus, the evidence at trial adequately supports the trial
court's decision, and we will not disturb it on appeal.
Affirmed.
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