Legal News Headlines

 
Copyright 2008 Dolan Media Newswires

 May 12, 2008

SECTION: NEWS

LENGTH: 506 words

BYLINE: Deborah Elkins

BODY: 

Domestic Relations - Child Support - Custody Award

The fact that a mother was awarded sole legal custody of the parties' children does not mean the father was relieved of his obligation to pay child support, the Court of Appeals holds.

In order to terminate all of father's parental rights and make him a stranger to the children, a court must follow very specific procedures for terminating such rights, and those procedures were not used here. Also, by its own terms the award of sole custody to mother did not strip father of all his rights and responsibilities. The March 9, 2006, order explicitly reserved to father the right of visitation.

"Sole legal and physical custody" does not mean that one parent has all the responsibility for the children and the other parent has noii responsibility for the children. Father's parental rights and responsibilities have not been terminated. The trial court on remand did not err in ordering him to pay child support.

Father also argues that the trial court on remand should not have deducted day care expenses from mother's imputed income as his evidence proved she did not need day care. However, the trial court rejected father's evidence and accepted mother's testimony that she would not need day care after school for all of the children if she were teaching, the job that father argued should be the basis of imputing income to mother. The trial court on remand did not abuse its discretion in accepting mother's evidence and including in its calculations of child support the cost of day care for all the children as a deductible expense that mother would need to pay if she were teaching.

The trial court also did not abuse its discretion when it concluded the "gifts" from her father were actually loans. The court did not err by omitting these figures from mother's income.

Finally, the trial court did not err in determining father's income. Parts of father's bankruptcy filings were admitted into evidence for the court to consider on remand. Those documents indicated that father was paid $5,100 per month through his law firm. Although father claimed he made less than $5,100 per month when he last practiced law, he also claimed his income continued to go up or remained unaffected by his circumstances after the bankruptcy.

Father never presented any documents to substantiate his testimony regarding the amount of his income. The only document produced, and the one the trial court believed, was his bankruptcy filing. We cannot find the trial court abused its discretion in accepting this document and rejecting father's self-serving testimony. The trial court had sufficient evidence to find that father was voluntarily underemployed, especially as he admitted that he also works for his new wife, but receives no salary or other income from her.

Barrett v. Commonwealth of Va., DSS, DCSE ex rel. Jill Barrett (Beales, J.) No. 1332-07-3, April 29, 2008; Grayson County Cir.Ct. (Geisler) Timothy T. Barrett, pro se; Stephanie Cangin, AAG, for appellee. VLW 008-7-205(UP), 15 pp.

LOAD-DATE: May 13, 2008