COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
JILL MANSFIELD
OPINION BY
v. Record No. 1154-96-4 CHIEF JUDGE NORMAN K. MOON
FEBRUARY 4, 1997
ROBERT L. TAYLOR, III
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
William Shore Robertson, Judge
Jeanette A. Irby (Walker, Jones, Lawrence,
Duggan & Savage, P.C., on briefs), for
appellant.
Robin C. Gulick (Robin C. Gulick, P.C., on
brief), for appellee.
Jill Mansfield appeals from the decree of the trial court
ordering payment of child support by Robert L. Taylor in the sum
of $250 per month. Appellant raises four questions: (1) whether
the court erred in not imputing income to appellee because he
voluntarily left his employment; (2) whether the court erred in
determining that appellee had made a full and clear disclosure
about his ability to pay child support; (3) whether the court
erred when it determined that when appellee voluntarily left his
employment that the voluntary leaving required a "wrongful act"
in order for the court to impute income; and (4) whether the
court erred when it found that appellee's employment with his own
sole proprietorship was a bona fide and reasonable business
undertaking, thereby finding that appellee was not voluntarily
underemployed. We find that the trial court erred in not finding
that appellee's change of employment constituted either
purposeful evasion of his support obligations or such careless
disregard for that obligation as to require imputation of income.
The parties were divorced by decree on or about December 15,
1982. Subsequent amendments were made to the divorce decree,
including a November 3, 1988 amendment requiring appellee to
maintain the parties' children on his current medical and
hospitalization insurance policy and to share equally with
appellant all uninsured medical expenses of the children. The
decree was again amended on March 30, 1990, ordering appellee to
pay $500 per month in child support commencing February 29,
through January 1994.
In August 1995, appellant filed a petition for support,
seeking an increase in child support.
Appellee filed an answer to the petition for support and a
cross-petition to reduce child support. Appellee's
cross-petition requested that his child support obligation be
reduced to a level consistent with Code § 20-108.2 and that his
child support obligation cease upon his children reaching the age
of eighteen, regardless of whether they had completed high
school. After a hearing, the trial court entered its final
decree in this matter on April 16, 1996. The trial court
concluded: (1) that appellee was not voluntarily underemployed;
(2) that appellant's gross monthly income was $5,172 and
appellee's gross monthly income was $800; and (3) that under the
guidelines, appellee's presumptive child support obligation was
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$112 but for delineated reasons appellee's monthly child support
obligation should be $250. The trial court also denied an award
of attorney's fees to either party.
The following evidence was presented regarding the state of
appellee's finances. Appellee was employed for thirteen years by
Atlantic Research Corporation, a defense contracting firm, before
being laid off as a result of a reduction in force in 1992. In
August 1992, appellee obtained temporary employment with AdTech,
a defense inspection firm. Shortly thereafter, appellee was
retained by AdTech as a permanent, full time employee. In July
1993, appellee and his present wife began the process of forming
a sole proprietorship business, "PostNet." All necessary
documentation was completed by October 1993. Appellee obtained a
loan through the Small Business Administration with a mortgage on
his jointly owned marital property and invested all of his
retirement, some $25,000, in PostNet. Subsequently, appellee
submitted his letter of resignation to AdTech on or about January
31, 1994.
Appellee testified that his efforts to start his own
business were at least in part motivated by the fact that
appellee's supervisor, Mr. Koch, had informed appellee during the
summer of 1993 that he might need to look for a new job as the
downturn in the defense industry and the completion of the
current contracts held by AdTech might require layoffs, which
could include appellee. Mr. Koch testified that he would have
told appellee about the possibility of layoff no more than a
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month prior to Mr. Koch's receipt of appellee's resignation in
January 1994. However, Mr. Koch also testified that had appellee
not resigned, he would have been laid off within a three to eight
week period from the date on which appellee chose to resign.
Appellee testified that he did not seek any other position
and dedicated his efforts to starting PostNet. He also stated
that he did some consulting work after his resignation and earned
$35 an hour for this work. Appellee did not disclose, but Mr.
Koch testified, that appellee continued to perform some
inspection work for AdTech after his resignation, for which he
was paid $35 an hour.
Because of poor record keeping, incomplete documentation and
a general lack of information, one cannot estimate with any
degree of accuracy appellee's income from his sole
proprietorship, PostNet. Appellee testified that he did not know
his projected income from the business and that he had no budget,
plan or goal with respect to PostNet. Appellee stipulated to
income of $9,600 a year from PostNet. This amount coincides with
the terms of appellee's Small Business Administration loan,
wherein appellee contractually limited his income from PostNet to
no more than $9,600 a year for the seven year life of the loan. 1
Appellee repeatedly admitted that he was not a good bookkeeper
and that he had not been very careful in record keeping.
1
At the time of the child support hearing, appellee had been
making payments on the Small Business Administration loan for two
years.
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Evidence indicated that numerous transactions, including deposits
and transfers, were not accounted for in the PostNet ledgers, or
conversely, were entered into PostNet's ledgers but were not
reflected in the bank's account records. In addition, outside
consulting fees were included in the PostNet ledgers and personal
expenses were paid from business funds.
In Antonelli v. Antonelli, the Supreme Court addressed the
proper standard to be employed where a party's income has
diminished due to a voluntary change of employment. 242 Va. 152,
409 S.E.2d 117 (1991). In Antonelli, the father petitioned for a
decrease in child support after voluntarily leaving a salaried
management position with a Richmond stockbrokerage firm for a
commissioned sales position with another Richmond stockbroker
where the father projected he would earn about the same income as
with his former employer. However, after the stock market
decline in 1987, his annual income was diminished by
approximately $10,000. The trial court found a material change
in circumstances. However the trial court also held, relying on
Edwards v. Lowry, 232 Va. 110, 348 S.E.2d 259 (1986), that the
father must also prove "that the lack of ability to pay is not
due to any voluntary act or neglect." 242 Va. at 154, 409 S.E.2d
at 118. The trial court concluded that the father "accepted the
risk involved in being a commissioned stockbroker" and that the
father had failed to meet the requirements of Edwards and
therefore would not be granted a reduction in support. Id.
We had reversed, holding that the trial court "imposed an
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erroneous standard of proof" on the father. Antonelli v.
Antonelli, 11 Va. App. 89, 90, 396 S.E.2d 698, 699 (1990).
Interpreting the Edwards standard that a party seeking reduction
show his or her inability to pay is not due to his or her own
"voluntary act or because of neglect," we held that while any
career change is a "voluntary act," the law defining child
support was not "intended to frustrate ambition or enterprise."
Id. Accordingly, we construed the term "voluntary act" to mean a
"willful act done for the purpose of frustrating the feasibility
or enforceability of the support obligation." Id.
The Supreme Court, while endorsing our articulation of the
Edwards standard, Antonelli, 242 Va. at 155, 409 S.E.2d at 119,
reversed. The Supreme Court disagreed with our application of
the Edwards standard, id., and affirmed the trial court's finding
that "the father gambled with the children's ability to receive
his financial support, and lost." Id. at 156, 409 S.E.2d at 119.
The Court further concluded that "[o]f course, a father is not
prohibited from voluntarily changing employment. But, . . . when
the father who was under court order to pay a certain sum for
child support, which he was able to pay given his employment,
chose to pursue other employment, albeit a bona fide and
reasonable business undertaking, the risk of his success at his
new job was upon the father, and not upon the children." Id. at
156, 409 S.E.2d at 119-20.
The Supreme Court's analysis in Antonelli makes clear that
actions which are either purposefully taken with the desire to
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evade one's support obligations or which evidence a careless
disregard for one's support obligations, can constitute "wrong
doing" sufficient to warrant imputation of income.
Further, the burden of proof rests with the party attempting
to have their support obligation decreased. See id. at 154-55,
409 S.E.2d at 119; Hammers v. Hammers, 216 Va. 30, 31, 216 S.E.2d
20, 21 (1975). Prior to Antonelli, the Supreme Court concluded
that
[w]here, as here, the father seeks a
reduction in the amount of payments for the
support and maintenance of his minor children
because of a change in his financial
condition, he must make a full and clear
disclosure relating to this ability to pay.
He must also show that his lack of ability to
pay is not due to his own voluntary act or
because of his neglect.
Id. (citations omitted).
Applying the Antonelli standard to the facts of this case,
it is evident that the trial court erred in its application of
Antonelli. Appellee bore the burden of proving that his career
change was made in good faith and without disregard for his
support obligation. The trial court properly considered
appellee's motive in changing positions, i.e., whether appellee
opted to change his employment because of a good faith desire to
do so or instead with the intent to frustrate his ability to pay
support. The trial court concluded the decision to change
employment was not motivated by a desire to escape support
payments and consequently found no violation of Antonelli.
However, Antonelli requires not only that the trial court
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consider appellee's motive in changing positions but also whether
the change in position evinced a careless disregard for the
existing support obligation.
Appellee decided to pursue a new career from which he could
receive, according to the terms of his SBA loan, no more than
$9,600 in income per year for a seven year period. Here, like
the parent in Antonelli, appellee was aware of his support
obligations when he undertook the new career change. However,
unlike the situation in Antonelli, where the father obtained a
job he believed would compensate him equivalent to his prior
position, appellee obtained new employment that he knew would not
provide income remotely near the level of his prior position.
Appellee testified that he was devoting sixty hours each week to
his new business. Yet he had continued to earn less than he
would had he worked in a minimum wage position. He planned for
this job to pay off in the future. His obligations to his
children are now. Appellee's actions in this regard appear
considerably more "careless" than those of the father in
Antonelli because, not only did appellee fail to seek a
comparable income to that of his prior job, he ensured that he
would have a very low income in his new position, as he himself
negotiated the terms limiting his income.
While appellee may have acted in good faith in deciding that
a change in position would be advantageous, his new career
choice, while a bona fide business opportunity for him,
nevertheless evidences either a purposeful desire to avoid his
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support obligation, or some part thereof, or a careless disregard
for that obligation. Consequently, we find that the trial court
erred in not imputing income to appellee and accordingly, we
reverse and remand for entry of an order consistent with this
opinion.
Reversed and remanded.
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