COURT OF APPEALS OF VIRGINIA

Present: Judge Clem ents, Senior Judges W illis and Annunziata Argued at Alexandria, Virginia

COMMONWEATLH OF VIRGINIA DEPARTMENT OF SOCIAL SERVICES DIVISION OF CHILD SUPPORT ENFORCEMENT ex rel. DAVID A. POMEY MEMORANDUM OPINION * BY v. Record No. 0072-05-4 JUDGE JERE M. H. WILLIS, JR. OCTOBER 4, 2005 ELIZABETH A. QUANTRILLE

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Lon E. Farris, Judge Rebecca Copeland, Special Coun sel, Division of Child Support Enforcement (Judith Williams Jagdmann, Attorney General; Craig M. Burshem, Senior Assistant Attorney General; Beth J. Edwards, Regional Special Coun sel; Hope F. Rosen, Special Counsel, on briefs), for appellant. (T. James Binder, on brief), for appellee. Appellee submitting on brief.

On appeal from a reduction of Elizabeth Quantrille’ s child support obligation, the Virginia Department of Social Se rvices (DSS) contends (1) that the tr ial court erred in placing upon it the burden of proving that Ms . Quantrille’s change in circumstances wa s due to her voluntary act or neglect, and (2) that the trial court erred by redu cing Ms. Quantrille’s chil d support obligation based on her testimony that she was wrongfully terminated from her employment. Because the trial court improperly assigned the burden of proof, we reve rse the judgment of the tr ial court and remand for further proceedings.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Background On September 10, 2003, the Ju venile and Domestic Relations District Court of Prince William County ordere d Ms. Quantrille to pay $924 per mont h child support for her two daughters, based on her income from employ ment by the United States Postal Service (Postal Service). In March 2004, she moved the trial court to reduce this obligatio n because she was no longer employed by the Postal Service. Ms. Quantrille testified that her gross monthly income had decreased substantially because the Postal Service had wrongfully terminated her em ployment. DSS presented a record of a Postal Service arbitration decision finding that Ms. Quantrille’s di smissal was proper. The trial court granted Ms. Qu antrille’s motion, re ducing her child su pport obligation to $226 per month, effective March 23 , 2004. The written statement of facts recites that the court ruled that Ms. Quantrille had “met her burden to prove a material change in circum stances.” It further recites, “The [c] ourt ruled that [DSS] failed to prove [Ms. Quantrille] lost her job due to her

own actions.” The trial court refused to impute income to Ms. Quantrille. Analysis “The court may . . . revise and alter . . . [a ch ild support] decree . . . as the circumstances of the parents and the benefit of the ch ildren may require.” Code § 20-108. When invoking the divorce court’s continuing jurisdiction under Code § 20-108, . . . a party seeking a change in court-ordered child support ha s the burden to prove by a preponderance of the evidence a material change in circumstances justifying modification of the suppor t requirement. In discharging this burden, a [parent] seeking a reduction in support payments must . . . show his claimed lack of ability to pay is not due to his own voluntary act or because of his neglect. In other words, the [parent] must establish that he is not “voluntarily unemployed or voluntarily under employed.” Antonelli v. Antonelli , 242 Va. 152, 154, 409 S.E.2d 117, 11 8-19 (1991). See also Edwards v. Lowry , 232 Va. 110, 112-13, 348 S.E.2d 259, 261 (19 86) (party seeking reduction in child support- 3 - must show material change in ci rcumstances justifying modification of decree, must make full and clear disclosure regarding ability to pay, and must show lack of ability to pa y is not due to own voluntary act or neglect). The trial court correctly placed on Ms. Quantrille the burden of proving a material change in circumstances justifying modifica tion of her support obligation. However, it erroneously placed upon DSS the burden of proving that the change in circumstance was due to Ms. Quantrille’s voluntary act or dereliction. Accordingly, we reve rse the judgment of the trial court and remand for

reconsideration under the correct standard of proof. We need not address DSS’s second issue.

Reversed and remanded.