COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Bray 

Argued at Richmond, Virginia 

DAVID WAYNE BROOKS 

 MEMORANDUM OPINION* BY 

v. Record No. 1928-96-2 JUDGE JAMES W. BENTON, JR. 

 JUNE 3, 1997 

DIVISION OF CHILD SUPPORT ENFORCEMENT, 

 ex rel. CATHLEEN BROOKS 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 Jeffrey L. Galston (Hyder, Lowe & Galston, on 

brief), for appellant. 

 (James S. Gilmore, III, Attorney General; 

William H. Hurd, Deputy Attorney General; 

Robert B. Cousins, Jr., Senior Assistant 

Attorney General; Craig M. Burshem, Regional 

Special Counsel, on brief), for appellee. 

 David Wayne Brooks appeals from an order reducing his child 

support obligation from $280 per month to $100 per month. Brooks 

argues that the trial judge erred in refusing to further reduce 

his obligation to conform to Brooks' limited ability to pay. The 

Division of Child Support Enforcement argues that the trial judge 

erred in ordering any reduction in Brooks' obligation. For the 

reasons that follow, we reverse the order. 

 I. 

 Brooks filed a motion for a reduction in his child support 

obligation. A judge of the juvenile and domestic relations 

district court denied the motion. After Brooks appealed that 

order, a hearing was held in the circuit court. The statement of 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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facts recites that the evidence proved that Brooks was convicted 

of attempted capital murder and firearm charges and was 

incarcerated at a Virginia prison. Brooks was employed in prison 

as head cook and was paid a wage of only 45 cents per hour. 

 Brooks argued that he was unable to make his child support 

payments because his monthly income was $54. The Division of 

Child Support Enforcement argued that Brooks was not entitled to 

any reduction in his support obligation because his incarceration 

was caused by his own voluntary actions. The circuit court judge 

entered an order stating the following: 

 [Brooks] is presently under a court order to 

pay to the [Mother], as child support, the 

sum of $280.00 per month, and $40.00 per 

month towards the accrued arrearage. The 

present order shall be suspended effective 

May 1, 1996, whereby [Brooks] shall pay to 

the Mother, as current child support, the sum 

of $100.00 per month, payable on the first of 

each month. The guideline amount was 

computed by imputing minimum wage of $4.50 

per hour to [Brooks], or $775 per month and a 

monthly gross income of $1770 for the Mother. 

 These figures result in a monthly child 

support obligation of $185.00, however the 

Court is deviating from the presumptive 

guideline amount and ordering only $100.00 

per month because [Brooks] is incarcerated. 

The $100 per month child support obligation 

shall remain in effect until thirty days 

after . . . Brooks['] release from 

incarceration, at that time the suspension 

shall be lifted and the prior order of 

$280.00 per month current child support and 

$40.00 per month towards the accumulated 

arrears will again be in effect. 

This appeal arises from that order. 
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 II. 

 "The court may . . . revise and alter . . . [a child 

support] decree . . . as the circumstances of the parents and the 

benefit of the children 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 has the burden to 

prove by a preponderance of the evidence a 

material change in circumstances justifying 

modification of the support requirement. In 

discharging this burden, a father 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. 

Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 118-19 

(1991). 

 The reason for Brooks' diminished ability to pay, his 

incarceration, was a result of his own voluntary act of 

committing the crime of attempted capital murder. The Supreme 

Court of Virginia has squarely addressed the principle 

controlling the case of an obligor who seeks a reduction of child 

support because of wrongful conduct. See Edwards v. Lowry, 232 

Va. 110, 348 S.E.2d 259 (1986). Reviewing a trial judge's 

decision to reduce the child support payments of a father who was 

fired from his employment for stealing, the Supreme Court 

observed that "the case now before us . . . involved an effort by 

a former husband to shift to his wife or child the consequences 

of his own wrongdoing." Id. at 113, 348 S.E.2d at 261. In 

reversing the trial judge's decision to reduce the payments, the 
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Supreme Court ruled that the father "failed to meet the burden 

. . . of showing himself free of responsibility for his change in 

circumstances, and was not entitled to a reduction in support 

based upon the diminution of income caused by the loss of his 

job." Id. Certainly, Brooks stands in no better position when 

the diminution of his income was caused by his incarceration for 

a voluntary criminal act. 

 The record provides no other basis upon which the trial 

judge could have reduced Brooks' child support obligation. We 

hold, therefore, that the trial judge erred in using Brooks' 

incarceration as a ground for reducing his child support 

obligation. Accordingly, we reverse the order and remand to the 

trial judge to reinstate the original support order. 

 Reversed and remanded.