Opinion
Record No. 0206-01-2.
December 18, 2001.
Appeal from the Circuit Court of Henrico County, George F. Tidey, Judge.
Ronald S. Evans (Brenner, Evans Yoffy, P.C., on briefs), for Jeffrey S. Smith.
Robert L. Flax (Flax Stout, on briefs), for Kathy D. Mann.
Present: Judges Willis, Elder and Annunziata.
MEMORANDUM OPINION BY
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Jeffrey S. Smith contends on appeal that the trial court erred when it denied his petition to reduce his child support obligation. Smith specifically argues that the evidence fails to support the court's finding that Gary, a child of the parties who was over age eighteen, was "mentally deficient and entitled to support." Kathy D. Mann cross appeals on the ground that the trial court failed to impute income to Smith and failed to include as part of Smith's gross income certain funds received from his father in 1998. For the reasons that follow, we affirm
I
Procedural History
The parties' marriage was dissolved by final decree of divorce entered on November 29, 1990. Three children were born of the marriage: Jeffrey Smith, born on December 18, 1981, Bart Smith, born on June 26, 1978, and Gary Smith, born on July 19, 1975
On March 8, 1991, the trial court ordered Smith to pay $775 per month for the support, maintenance and education of the parties' three children. On June 23, 1993, the court decreased the amount to $535 per month, because Smith had custody of one of the children, to continue until further order of the court
On July 19, 1993, Gary Smith turned eighteen. On June 26, 1996, Bart Smith turned eighteen. On August 7, 1996, Smith petitioned to further reduce his child support obligation claiming that "the two oldest children have been emancipated by age." On August 14, the matter was reinstated
On March 1, 1999, the trial court found Gary Smith "mentally deficient and entitled to support." It applied the child support guidelines and ordered Smith to pay $292.42 a month in child support for his two unemancipated children. The court declined to impute income to Smith for voluntary underemployment or for funds received from his father in 1998
II. Analysis A. Smith's Appeal
Code § 20-124.2(C) provides in pertinent part:
Smith appeals the trial court's finding that Gary Smith, who is over the age of eighteen, was "mentally deficient and entitled to support." Smith contends that the evidence failed to prove that his son met the legal requirement of "severely and permanently mentally or physically disabled." Code § 20-124.2 (C) (trial The court may "order also order the continuation of support for any child over the age of eighteen who is (i) severely and permanently mentally or physically disabled, (ii) unable to live independently and support himself, and (iii) resides in the home of the parent seeking or receiving child support
Smith appeals the trial court's finding that Gary Smith, who is over the age of eighteen, was "mentally deficient and entitled to support." Smith concedes that Gary is seriously mentally disabled, but contends the evidence failed to prove that his disability is "permanent."support.") We disagree
"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). Therefore, we review the evidence in the light most favorable to the Mann, the party prevailing below on this issue. Case.Germek v. Germek, 34 Va. App. 1, 8, 537 S.E.2d 596, 600 (2000)
The evidence proved that Gary, who turned eighteen on July 19, 1993, is severely mentally disabled. Kent McDaniel, Gary's treating psychiatrist since July 1997, testified that Gary suffers from a learning disability, depression, attention deficit hyperactivity disorder, a minimal brain dysfunction syndrome, and, most significantly, chronic disorganized schizophrenia. Disorganized speech, disorganized thoughts, disorganized behavior, and inappropriate or flat affect characterize chronic disorganized schizophrenia. His daily medication includes risperdal, Ritalin, ritalin, and an antidepressant
Gary Prior to beginning treatment with McDaniel, Gary was hospitalized for two years at Central State Hospital for schizo affective disorder, bipolar type, substance abuse problems, and a psychosocial and environmental problem. A diagnosis of schizo affective disorder, bipolar type requires the presence of a bipolar mood disorder and psychotic symptoms such as disorganized behavior, hallucinations or illusions outside the experience of a mood disorder
Gary needs a calm, secure, consistent, and structured environment, which Mann provides. If his routine is disrupted, he becomes stressed, hyper and upset and must lie down. Mann testified that Gary could not handle a job at a C.D. store stacking CD's alphabetically, because he requires absolute consistency, calmness, and plenty of space in his daily schedule. He also requires precise directions in order to complete simple tasks. For example, when Mann asks him to go to the store, he will bring back the wrong items or nothing if the store does not have precisely what she listed for him
The evidence also proved that Gary's condition is permanent. McDaniel testified that while medication and a structured supportive environment benefit Gary, his illness "doesn't go away and it doesn't get better" and "his prognosis is poor in the sense we wouldn't expect much change unless there's some kind of treatment that would benefit Gary." McDaniel doesn't foresee Gary ever living on his own or supporting himself, but noted that "[b]ecause Gary's symptoms don't fall into clear, nice, clean- cut, classic period of schizophrenia, it becomes difficult to make [an assessment as to how long Gary would suffer from schizophrenia]. On cross-examination, he agreed that he was not in a position to say that Gary is "permanently mentally disabled."
James N. King, Gary's mental health caseworker, confirmed that Gary was not capable of living on his own and has only limited ability to work or support himself. He recalled Gary's attempt to work at the C.D. store. He noted that Gary "had a lot of problems functioning" and was "overwhelmed," by this very low skilled job
Central State problem. He was discharged in January 1997 on the condition that he receives medication and "intensive community follow-up" at Lakeside House, a day treatment program for mentally ill persons. The discharge notice designated him as mentally ill, not recovered
According to McDaniel, a diagnosis of schizo affective disorder, bipolar type, is based on the presence of a bipolar mood disorder and psychotic symptoms such as disorganized behavior, hallucinations or illusions.
Addressing the issue of permanency, McDaniel further testified that Gary's prognosis is complicated because his illness does not present a classic case of chronic disorder schizophrenia. Notwithstanding the difficulties posed by Gary's syndrome, McDaniel stated that his prognosis is "poor in the sense that we wouldn't expect much change unless there's some kind of treatment that would benefit Gary." No such available treatment was identified by McDaniel. According to McDaniel, Gary is unlikely to ever be able to live on his own or support himself. On cross-examination, he agreed that he was not able to say that Gary is "permanently mentally disabled."
This medical and testimonial evidence, viewed as a whole, supports the trial court's conclusion that Gary Smith is "severely and permanently mentally disabled" within the meaning of Code § 20-124.2(C). Smith argues, however, that Mann has not met her burden because Mann's expert testified that he was not in a position to say that, because McDaniel could not opine that Gary is "permanently" mentally disabled, Mann failed to sustain her burden of proof on that issue. We disagree
First, Smith's argument takes McDaniel's statement on cross- examination out of context and fails to credit McDaniel's explanation [Judge: do we need to explain? i.e. McDaniel indicated that he could not label Gary's condition as permanent because the complexity of Gary's condition made an assessment of permanency difficult. In addition, his testimony as a whole supports the conclusion that Gary's illness is permanent. Specifically, he testified that Gary's prognosis was poor and he did not foresee Gary functioning on his own.] Second, the law is well settled in Virginia that the fact finder must consider the evidence as a whole, and is not required to accept the opinion of an expert as conclusive. McLane v. Commonwealth, 202 Va. 197, 206, 116 S.E.2d 274, 281 (1960); Piatt v. Piatt, 27 Va. App. 426, 434, 499 S.E.2d 567, 571 (1998); Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en banc); Blevins v. Commonwealth, 11 Va. App. 429, 432, 399 S.E.2d 173, 175 (1990); Lassen v. Lassen, 8 Va. App. 502, 507, 383 S.E.2d 471, 474 (1989); Godley v. Commonwealth, 2 Va. App. 249, 251, 343 S.E.2d 368, 370 (1986). In this case, the trial judge acceptedcredited McDaniel's testimony describing the severity and likely permanency of Gary's condition, but did not stating that Gary's condition is chronic and "doesn't go away and doesn't get better." The court discounted McDaniel's credit his ultimate conclusion that he could not unequivocally classify Gary's condition as "permanent."inability to opine that Gary is "permanently mentally disabled," resolving any conflict posed by this response in favor of his testimony establishing permanency as a matter of fact, and in light of McDaniel's explanation that the issue of permanency, was, in part, contingent on what new treatments may become available. See Street, 25 Va. App. at 387, 488 S.E.2d at 688 (noting that the trier of fact "has the discretion to accept or reject any of the witness' testimony"); Barnes v. Wise Fashions, 16 Va. App. 108, 111, 428 S.E.2d 301, 303 (1993) (trial court may resolve any apparent conflicts in the testimony of an expert). Accordingly, the we, therefore, affirm the trial court's finding that Gary is trial judge could properly conclude that Gary was "severely and permanently"permanently mentally disabled and entitled to support from his father. See, e.g., Rinaldi v. Dumsick, 32 Va. App. 330, 335, 528 S.E.2d 134, 137 (2000) (holding that treating physician's description of adult child's condition as "moderate to severe" supported trial court's conclusion that his disability was "severe" within the meaning of § 20-124.2(C)). We, therefore, affirm the trial court's finding that Gary is entitled to continued support from his father
B. Mann's Appeal
Mann appeals the trial court's calculation of the child support award on the ground that it erroneously declined to impute income to Smith based on his voluntary underemployment in accordance with Code § 20-108.1(B)(3). She contends that Smith was voluntarily underemployed in 1998 because he chose to pursue a lawn care business rather than the more lucrative employment of caring for his sister. We disagree
On appeal, Mann also argues that the trial court erred by failing to include in Smith's income a loan from his father of $4,165 in 1998, which he had not repaid by the time of trial. Because Mann failed to raise this issue before the trial court, we will not consider it here Rule 5A:18.
Her contention is In calculating a child support award, the "primary issue before a trial judge is the welfare and best interests of the child, not the convenience or personal preferences of a parent." Hur v Dep't of Social Services, 13 Va. App. 54, 60, 409 S.E.2d 454, 458 (1991). Therefore, "[a] parent may not 'purposely choose to pursue a low paying career which operates to the detriment of [the parent's] children.'" Brooks v. Rogers, 18 Va. App. 585, 592, 445 S.E.2d 725, 729 (1994) (quoting Payne v. Payne, 5 Va. App. 359, 364, 363, S.E.2d 428, 431 (1987)); see also Antonelli v. Antonelli, 242 Va. 152, 156, 409 S.E.2d 117, 119-20 (1991) (holding that husband, who's income decreased because he "chose to pursue other employment, albeit a bona fide and reasonable business undertaking," was not allowed to reduce his child support payments). "[I]mputed income to a party who is . . . voluntarily underemployed" and the "earning capacity" of each parent may justify deviation from the child support guidelines. Code § 20-108.1 (B)(3)(11); Brody v. Brody, 16 Va. App. 647, 650, 432 S.E.2d 20, 21 (1993) (imputed income); Hur, 13 Va. App. at 60, 409 S.E.2d at 458 (earning capacity)
"When asked to impute income to a parent, the trial court must consider the parent's earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and children." Niemiec v. Commonwealth, 27 Va. App. 446, 451, 499 S.E.2d 576, 579 (1998) (citingBrooks v. Rogers, 18 Va. App. at 592, 445 S.E.2d at 729 (citing Code § 20-108.1(B))). Generally, if the court finds that the parent is voluntarily underemployed, it must impute income to that parent. Id (citing Hamel v. Hamel, 18 Va. App. 10, 12, 441 S.E.2d 221, 222 (1994));see also Code § 20-108.1 (B)(3). Where a court declines to impute income to a parent, we presume that it considered the factors enunciated in Niemiec and determined that the parent was not "voluntarily underemployed." Cf. Barker v. Barker, 27 Va. App. 519, 543, 500 S.E.2d 240, 252 (1998) (absent evidence to the contrary, we presume that the trial court properly applied the law)
In this case, the trial court implicitly determined that Smith was not "voluntarily underemployed." In response to Mann's objection to the trial court's failure to impute income to Smith, the trial judge stated, "Mr Smith's income was based on 1998 and not on 1996." Because the court determined that Smith was not "voluntarily underemployed," we presume it properly considered the relevant factors.without merit. The trial court's "refusal to impute income will not be reversed unless plainly wrong or unsupported by the evidence."
Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 784 (1999) Furthermore, [t]he "[t]he burden is on the party seeking imputation to prove that the other parent was voluntarily foregoing more gainful employment, either by producing evidence of a higher-paying former job or by showing that more lucrative work was currently available." Niemiec v Dep't of Soc. Servs., Div. of Child Support Enforcement, 27 Va. App. 446, 451, 499 S.E.2d 576, 579 (1998) (citations omitted)
The evidence proved that Smith earned approximately $30,000 in 1996 selling life insurance at Virginia Asset Management, cutting grass, and providing nursing care for his sister, who was described as a grand sister. Hismal epileptic. Smith's sister was placed in his care for about four and a half months when her parents could no longer afford the costs of the treatment center that had been caring for her. Smith's sister moved out of his home in October 1996, and he thereafter left his job at Virginia Asset Management in December 1996. Hoping to increase his income, he started a lawn care business, Environmental Turf Care in January 1997. Three or four months later, his sister asked if she could come back to live with him. He sought to return to Smith's home, a request that Smith refused because he was too"so busy with his new business. In 1998, he earned $16,000, including income from his business, cutting grass, business." She lived with her parents at the time of the life insurance renewals from his previous work as an insurance sales person, and debt forgiveness from a previous employer
While it is true that Smith earned more money before he started his lawn care business, there is no evidence in the record Mann presented no evidence that Smith asked his sister to leave or otherwise voluntarily terminated his employment as her caretaker in October 1996. Nor is there did she provide evidence that Smith rejected an opportunity for "more lucrative work" by refusing his sister's request to resume caring for her. Id. When his sister asked if she would be paid for could come back to live with him, she gave no indication that their father, or anyone, would pay for Smith's services. Therefore, Mann failed to carry her burden his caretaker services had he acceded to his sister's request, and in what, if any, amount. That failure of proof precludes a finding that Smith "was voluntarily foregoing more gainful employment." Niemiec, 27 Va. App. at 451, 499 S.E.2d at 579 (holding that party seeking imputation of income must produce evidence that former spouse voluntarily left a higher paying job or "that more lucrative work was currently available"); see also Hur v. Dep't of Soc. Servs., Div. of Child Support Enforcement, 13 Va. App. 54, 61, 409 S.E.2d 454, 459 (1991) (holding that party seeking imputation of income must provide sufficient evidence to "enable the trial judge reasonably to predict what amount could be anticipated")
Accordingly, we hold that the trial court properly determined that Smith was not voluntarily underemployed. Accordingly, we underemployed and affirm trial court's its decision not to impute income to Smith in calculating the child support award
Affirmed