COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz * , Elder and Fitzpatrick
Argued at Salem, Virginia
CORA D. RAWLINGS
v. Record No. 2026-94-3 OPINION BY
JUDGE LAWRENCE L. KOONTZ, JR.
PHILIP W. RAWLINGS AUGUST 22, 1995
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Michael Gamble, Judge
George W. Nolley for appellant.
Philip B. Baker (Peter Mitchell, on brief), for appellee.
Cora D. Rawlings appeals a decision of the circuit court
reducing the child support obligation of her former husband,
Philip W. Rawlings, during the pendency of his participation in a
legal union strike against his employer. Mrs. Rawlings asserts
that Mr. Rawlings' voluntary participation in the strike
constituted voluntary underemployment and, thus, was not ground
for finding a material change in circumstances warranting a
reduction in child support. She further asserts that if a
modification review was warranted, the chancellor should have
imputed income to Mr. Rawlings based upon his pre-strike wages.
This appeal presents issues of first impression in this
Commonwealth. Under the specific facts of this case and for the
following reasons, we affirm the chancellor's decision.
The parties had divorced following a marriage which produced
one child not emancipated at the time of the dissolution of the
*
Justice Koontz prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
marriage. On December 8, 1993, Mr. Rawlings was ordered to pay
three hundred forty-eight dollars and fifty-four cents ($348.54)
in monthly child support to Mrs. Rawlings. The child was then
aged sixteen years, seven months. 1
At the time of the parties' marriage and at all times
thereafter, Mr. Rawlings was employed by Aerofin Corporation
where he is a member of an AFL-CIO affiliated trade union. On or
before March 12, 1994, members of the union, including Mr.
Rawlings, voted to undertake an approved strike. Mr. Rawlings
received strike pay and worked temporary jobs during the course
of the strike, but nonetheless suffered a significant reduction
in income.
While continuing to attempt to pay the required child
support payments to the best of his ability, Mr. Rawlings
petitioned the appropriate juvenile and domestic relations
district court for a reduction in child support based upon his
change in income. The petition was denied and Mr. Rawlings
appealed to the circuit court. Following an ore tenus hearing,
the chancellor determined that Mr. Rawlings' participation in the
strike did not constitute voluntary underemployment. The
chancellor stated:
. . . [Mr. Rawlings'] family began in . . . [the] early
seventies as a union family. At the time of . . . the
divorce it was still a union family, [Mr. Rawlings] has
a ninth grade education. He's been a member of the
union. That has certain duties and obligations just
like employment does. Had he been a recent member, had
1
At oral argument, it was established that the child is now
emancipated.
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most of the union ignored the union vote, gone back
across the line, that would be one situation, but here
this union doesn't strike much. It's the only strike
since the opening of the plant. He's been a member of
[the union]. The family has benefitted from the fact
that he's been in the union. So I think he does
deserve a reduction.
I understand it's a hardship on everyone. It's
not a[n] . . . ideal situation, but it's part of the
work environment he's been in and this family is in
from the time . . . he began working at this plant.
The chancellor ordered a reduction in child support from the
date of the original petition and continuing during the pendency
of the strike to one hundred seventy-four dollars ($174.00) per
month. The parties were directed to calculate the appropriate
arrearage, if any, based upon this amount and the amount actually
paid during this time period.
We begin our analysis by noting that several other
jurisdictions have held that participation in a legal strike
warrants a reduction in the child support obligations of a
parent. See, e.g., Cohn v. Cohn, 461 N.E.2d 1028, 1031 (Ill. Ct.
App. 1984)("respondent participated in the strike in 'good faith'
and was therefore entitled to a reduction in child support
reflective of his present ability to pay"); Sandra L. v. John L.,
480 N.Y.S.2d 291, 293 (N.Y. Fam. Ct. 1984)("[t]he exercise of a
federally protected right . . . may not be used against a worker
to deny a reduction of his support obligation which would
otherwise be granted for good cause"); see also O'Neal v. Wynn,
306 S.E.2d 822, 824 (N.C. Ct. App. 1983)(non-union member who
lost employment after refusing to cross picket line was entitled
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to reduction of child support), aff'd, 313 S.E.2d 159 (N.C.
1984); cf. Reep v. Reep, 565 So. 2d 814, 816 (Fla. Dist. Ct. App.
1990)("participation in a legal strike, accompanied by diligent
efforts to seek reemployment, cannot be considered a voluntary
reduction of income and may form the basis for a petition for
modification of alimony"). But see Horn v. Horn, 650 N.E.2d
1103, 1107 (Ill. Ct. App. 1995)("the mere fact that an individual
is on strike does not automatically require a trial court to
reduce child support payments" because other factors, including
obligor's good faith, may be considered). These decisions rest
upon two principles: the right of the obligor parent to
participate in a lawful strike under federal and state statutes,
see, e.g., Sandra L., 480 N.Y.S.2d at 293 (citing 29 U.S.C § 163
(1988)); Reep, 565 So. 2d at 816 n.4 (citing 29 U.S.C. § 163 and
Fla. Stat. Ann. § 447.03 (West 1989)), and the good faith of the
obligor parent in undertaking the strike for the long-term
benefit of his continued employment. See, e.g., Cohn, 461 N.E.2d
at 1030.
While fully in accord with other jurisdictions in
recognizing the right of an individual to join a union and
participate in a legal strike under the National Labor Relations
Act (NLRA), see 29 U.S.C §§ 157, 163 (1988), we further recognize
that the right-to-work doctrine of this Commonwealth empowers an
individual to maintain his employment during the pendency of a
strike. See Code §§ 40.1-53, -58. Moreover, we find that the
preemption doctrine giving supremacy to the NLRA does not usurp
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the power of a state to require a union member to fulfill legal
obligations unrelated to his or her union's collective bargaining
activities. The potential of being required to maintain child
support payments without reduction during the pendency of a legal
strike is no different from other personal economic
considerations which an individual union member must take into
account when determining whether to vote for or honor a strike.
No deliberate action by the state interferes with the
individual's right to vote for and participate in union activity
and collective bargaining; thus, the preemption doctrine has no
application to the issue of this case. See, e.g., Metropolitan
Life Insurance Co. v. Massachusetts, 471 U.S. 724, 749 (1985)
(preemption doctrine does not apply to state statutes and causes
of actions which do not directly interfere with primary purpose
of NLRA to promote fair and equitable resolution of collective
bargaining disputes). Accordingly, we hold that the fact that
Mr. Rawlings was exercising a protected right in voting for and
honoring the decision to strike neither mandates nor prohibits a
reduction in his child support obligation.
Similarly, the reliance of other jurisdictions on the "good
faith" of the obligor parent in participating in the strike has
no application in this Commonwealth. In Antonelli v. Antonelli,
242 Va. 152, 409 S.E.2d 117 (1991), the Supreme Court held that
"when the [obligor parent] . . . 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
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the [obligor parent], and not upon the children." Id. at 156,
409 S.E.2d at 119-20. Interpreting Antonelli, this Court has
held "that the risk of reduction in income as a result of a
parent's intentional act, even if done in good faith, is
insufficient grounds for reducing the amount of support due under
a pre-existing order." Hamel v. Hamel, 18 Va. App. 10, 13, 441
S.E.2d 221, 222 (1994)(emphasis added). Accordingly, while we
concur in the chancellor's finding that Mr. Rawlings' decision to
vote for and participate in the strike was consistent with the
duties and obligations of union membership and done with good
faith belief that it was for his and his family's ultimate
benefit, that fact standing alone is insufficient to warrant a
reduction in the child support due under the December 8, 1993
2
order.
Nonetheless, we hold that the chancellor did not err in
2
We reject Mrs. Rawlings' assertion that the record
establishes that Mr. Rawlings was motivated to vote for and
support the strike in order to avoid the remaining months of his
child support obligation prior to his son's emancipation. To the
contrary, the record amply supports the chancellor's
determination that this was not the case. Mr. Rawlings pursued
temporary employment to supplement his strike pay, continued
child support within his ability to pay, and pursued the
appropriate legal course in seeking a reduction in his child
support obligation. Although the record shows that because of
his seniority and position with his employer, he stood to gain
little direct economic benefit from a positive resolution to the
strike, the intangible benefits accruing to all union members
from a positive resolution of the strike and the previous
benefits he had received as a result of union membership
corroborate Mr. Rawlings' assertion that his decision to support
the union was a matter of principle arising from his loyalty to
the union made after reflecting on the strike's impact upon his
financial situation.
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finding that under the facts of this case, Mr. Rawlings' decrease
in income following the commencement of the union strike was a
material change in circumstances invoking the court's continuing
jurisdiction to modify its decree concerning his child support
obligation. See Yohay v. Ryan, 4 Va. App. 559, 565-66, 359
S.E.2d 320, 324 (1987). Although that reduction in income was
the result of a good faith intentional act on the part of the
obligor parent, we distinguish this case from Antonelli on the
ground that at all times during and following the marriage the
well-being of the economic relationship between Mr. Rawlings and
his former spouse and child was inexorably entwined with the
economic fortunes of the union. Thus, the strike itself,
notwithstanding Mr. Rawlings' voluntary actions in voting for and
honoring the strike, constituted the material change in
circumstances warranting review of his child support obligations.
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 chancellor is required to
consider all the factors and guidelines enumerated in the Code
for making such determinations and enter an award appropriate to
circumstances as they exist at that time. Watkinson v. Henley,
13 Va. App. 151, 156, 409 S.E.2d 470, 472-73 (1991); see also
Yohay, 4 Va. App. at 566, 359 S.E.2d at 324; Keyser v. Keyser, 2
Va. App. 459, 461-62, 345 S.E.2d 12, 14 (1986).
Here, the amount of the reduction is supported by the
record, unless, as Mrs. Rawlings asserts, the chancellor erred in
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not imputing income to Mr. Rawlings based upon his pre-strike
wages. Accordingly, we turn now to that issue.
While there is some suggestion in the record that Mr.
Rawlings could have refused to honor the strike and returned to
work at the wage he had been previously earning, it is clear that
the standard of living of the family established during and
maintained following the marriage until the strike flowed
directly from the long-term benefits of his union membership. It
is equally clear that the financial resources of the family were
subject to fluctuation during a legal strike by the union. Thus,
Mr. Rawlings was not "underemployed" during the pendency of this
strike. Rather, the record shows that in addition to
participating in union activities in order to receive strike pay,
Mr. Rawlings also sought temporary employment appropriate to his
skills and educational level in order to supplement his income
and meet his support obligation. Nothing in the record suggests
that equivalent employment to Mr. Rawlings' prior position and
wage level was available in the locality or that he could have
secured such a position elsewhere.
For these reasons, the decision of the circuit court is
affirmed.
Affirmed.
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