COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Overton 

Argued at Alexandria, Virginia 

CHARLES D. BENNETT 

 

v. Record No. 1364-95-4 OPINION BY 

 JUDGE SAM W. COLEMAN III 

COMMONWEALTH OF VIRGINIA, JULY 16, 1996 

 VIRGINIA DEPARTMENT OF SOCIAL SERVICES, 

 DIVISION OF CHILD SUPPORT ENFORCEMENT, 

 ex rel. AUDREY BENNETT 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Robert W. Wooldridge, Jr., Judge 

 Yvonne DeBruyn Weight (Eric Michael Weight; 

Weight & Weight, on briefs), for appellant. 

 Anne Wren Garrett, Special Counsel (Betsy S. 

Elliott, Senior Special Counsel; Nancy J. 

Crawford, Regional Special Counsel, Division 

of Child Support Enforcement; James S. 

Gilmore, III, Attorney General; William H. 

Hurd, Deputy Attorney General; Siran S. 

Faulders, Senior Assistant Attorney General; 

Craig M. Burshem, Regional Special Counsel, 

on brief), for appellee. 

 Charles D. Bennett appeals the trial court's order which 

refused to modify his monthly child support obligation. He 

contends that the trial court erred by (1) requiring him to prove 

a material change in his former wife's circumstances, in addition 

to the change in his circumstance, before considering the issue 

of imputing income to her, (2) not imputing income to her, (3) 

not including in her gross income the social security and federal 

housing benefits that she receives, and (4) retroactively 

modifying his child support obligation for October 1994. We find 
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no reversible error and affirm the trial court's order. 
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FACTS AND PROCEDURAL HISTORY

 Charles D. Bennett (father) and Audrey Bennett (mother) 

married in 1983 and separated in 1988. They had three children. 

 The three children have resided with their mother following the 

separation. Isaac, the youngest child, suffers from Downs 

Syndrome. 

 Following the initial support order, the father filed a 

motion for abatement of support because his job was being 

terminated as a result of corporate downsizing. At the 

modification hearing, the parties stipulated that they had no 

extraordinary medical expenses, no day care expenses, and no 

health insurance expenses. They also stipulated that the mother 

receives $731 per month in Section 8 federal housing benefits1

and $330 per month in Supplemental Security Income (SSI) benefits 

for Isaac's disability.2 At the time of the hearing, Isaac was 

attending school about three hours each weekday, but the court 

found he "require[d] a high level of monitoring and attention" 

from the mother. 

 As a consequence of the foregoing proceeding, the trial 

court reduced the father's monthly child support obligation to 

$170. In that proceeding, the court refused to impute income to 

the unemployed father, but the judge stated in his letter opinion 

that he "will continue this matter for six months . . . to review 

 

 1See 42 U.S.C. § 1437f(a). 

 2See 42 U.S.C. § 1381. 
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(among other matters) [the father's] efforts to find employment." 

 Also, in that proceeding, the trial judge refused to include as 

part of the mother's gross income the social security benefits or 

federal housing benefits which she receives for Isaac's 

disability, and refused to impute income to the mother because 

she was "fully and properly occupied with the demands and special 

needs of Isaac." 

 Following that proceeding, on December 14, 1994, the father 

accepted permanent employment with MFSI, Inc. Just before doing 

so, he had earned, on a one-time basis during October 1994, 

$2,554.96 from temporary employment with Stephens Engineering 

Company. 

 On January 17, 1995, the mother filed a motion for review of 

child support, alleging a material change in circumstance. At a 

February 9, 1995 hearing, the parties stipulated that, after the 

mother had obtained approval in August 1994 from the Prince 

William County public school system to teach the children at 

home, she had removed the two oldest children from public school. 

 They also stipulated that as of the date of the filing of the 

motion, Isaac was attending school all day for three days per 

week and was in day care the other two days. 

 By decree dated May 22, 1995, the trial court increased the 

father's monthly child support obligation to $841, based on the 

presumptive child support guidelines in Code § 20-108.2 for his 

gross monthly income of $2,933 and the mother's gross monthly 
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income of $100. The court also ordered that he pay "a one time 

adjustment" of $574 for child support based upon his October 1994 

income. The trial court included the $574 with the $13,884.53 

arrearage in child and spousal support found to be due. The 

court further found that "there has been no material change in 

[the mother's] circumstances such as to impute income to [her]." 

MATERIAL CHANGE OF CIRCUMSTANCE

 A party moving to modify a support decree must prove a 

material change in circumstance following the last support order 

before the trial court is required to consider modifying the 

support award. See Thomas v. Thomas, 217 Va. 502, 505, 229 

S.E.2d 887, 889-90 (1976). The change in circumstance also must 

warrant a modification of the support. Furr v. Furr, 13 Va. App. 

479, 481, 413 S.E.2d 72, 73 (1992). The father contends that the 

trial court erroneously found "there ha[d] been no material 

change in [the mother's] circumstances" by virtue of Isaac being 

in school or day care the entire day, and therefore, erred by 

refusing to consider whether to impute income to the mother. 

 The mother's petition to increase support was based on the 

change in condition arising from the father's permanent 

employment. The trial court did not refuse to impute income to 

the mother because the mother had filed the petition or because 

the father had not alleged or proved a change in her 

circumstances. In fact, the judge stated that he considered the 

father's argument as "a motion to reconsider." The judge 
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thereafter ruled that the changed condition of Isaac being in 

school and day care did not warrant a finding that the mother was 

voluntarily unemployed. Accordingly, the court refused to impute 

income to her. Thus, the trial judge did not impose an 

additional burden on the father to prove changes in both his and 

the mother's circumstances and did not refuse to consider whether 

to impute income to the mother. 

IMPUTATION OF INCOME

 In November 1994, the court refused to impute income to the 

mother because it found that she was "fully and properly 

occupied" with caring for Isaac. However, at the February 9, 

1995 hearing, the parties stipulated that as of that date Isaac 

was spending three weekdays in school and the remaining two days 

in day care at state expense. The father contends, therefore, 

that because the mother is no longer required to remain at home 

to care for Isaac, the trial court erred by declining to impute 

income to the mother in calculating their respective child 

support obligations. Consequently, he argues that he is being 

required to pay a disproportionate amount of support for the 

children. 

 Both parents owe a duty of support to their minor children. 

 Code § 20-61; Featherstone v. Brooks, 220 Va. 443, 448, 258 

S.E.2d 513, 516 (1979). A trial court has discretion to impute 

income to either or both the custodial or noncustodial parent who 

is voluntarily unemployed, provided that income may not be 
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imputed to a custodial parent except when the child is in school 

or child care services are available. See Code § 20-108.1(B)(3); 

Sargent v. Sargent, 20 Va. App. 694, 703, 460 S.E.2d 596, 600 

(1995) ("A trial court may impute income to the spouse receiving 

child . . . support under appropriate circumstances") (emphasis 

added). The trial court's decision to not impute income to the 

mother will be upheld on appeal unless it is "'plainly wrong or 

unsupported by the evidence.'" Id. at 703, 460 S.E.2d at 600 

(quoting Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 

875, 876 (1994)). 

 When the 1994 support order was entered, which did not 

impute income to the mother, the trial court found that Isaac 

attended school for approximately three hours each weekday and 

that "[h]e requires a high level of monitoring and attention." 

The mother's time and responsibility in caring for Isaac have 

changed. Isaac attends school and day care all day each weekday. 

 Although the evidence does not show the frequency or extent to 

which Isaac's mother must take him home from school or day care 

or respond to his problems, the mother's counsel avowed that 

 [s]ometimes [Isaac] doesn't respond well to 

[the instruction and care he is given at 

school] and his mother has to go to the 

school and intervene or be with him. When he 

goes to day care, if he can't sustain the day 

care situation she has to be there and 

intervene or take him home. 

 In Hamel v. Hamel, 18 Va. App. 10, 13, 441 S.E.2d 221, 223 

(1994), we held that the trial court erred by refusing to impute 
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income to the noncustodial parent who had voluntarily quit her 

job. In Brody v. Brody, 16 Va. App. 647, 650-51, 432 S.E.2d 20, 

22-23 (1993), we held that the trial court erred by not imputing 

income to the noncustodial parent who voluntarily left her job to 

stay home and care for a child from another marriage. A 

custodial parent has no less responsibility to provide support to 

a minor child than does the noncustodial parent. Thus, the trial 

court shall impute income to a custodial parent who is 

voluntarily unemployed or underemployed where the age of the 

child and circumstances permit the custodial parent to be 

gainfully employed. Code § 20-108.1(B)(3). 

 The facts here are distinguishable from those in Hamel and 

Brody. Here, the mother has custody of a profoundly disabled 

child who "requires a high level of monitoring and attention." 

She did not voluntarily leave a job to assume this 

responsibility. Although Isaac is in school and day care each 

weekday, the mother has to be available to respond to his needs 

or to take him home on occasion. Although the evidence does not 

show the frequency and extent to which the mother is called to 

take Isaac out of school or day care, Isaac is profoundly 

disabled and only recently had his school days and day care 

extended beyond three hours. The trial judge was familiar with 

Isaac's condition and previously had found that he required a 

high level of monitoring and attention even when Isaac was in 

school only three hours each weekday. 
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 The father introduced no evidence to show the availability 

of a job that would tolerate absences or leaving on unscheduled 

intervals. Furthermore, after Isaac comes home each day, the 

mother must devote her full time and attention to caring for him. 

 Although the mother cannot absolve herself of the legal 

obligation to support her dependent children by voluntarily home 

schooling them, and thereby effectively removing herself from the 

labor market, the trial judge did not abuse his discretion by 

considering that in addition to caring for a profoundly disabled 

child, the mother is home schooling two other children. 

 Furthermore, the mother has not worked for over ten years 

and no evidence was introduced regarding the availability of jobs 

for her or the amount of income she could earn. See Sargent, 20 

Va. App. at 704, 460 S.E.2d at 600-01 ("No evidence was presented 

about the availability of a factory position or the hours or 

shifts that would be required"). The party contending that 

income must be imputed is required "to produce evidence that [is] 

sufficient to 'enable the trial judge reasonably to project what 

amount could be anticipated' had the mother [procured] 

employment." Brody, 16 Va. App. at 651, 432 S.E.2d at 22 

(quoting Hur v. Div. of Child Support Enforcement ex rel Klopp, 

13 Va. App. 54, 61, 409 S.E.2d 454, 459 (1991)). 

 On these facts, the trial judge did not abuse his discretion 

by declining to impute income to the mother. 

SSI AND FEDERAL HOUSING BENEFITS
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 Code § 20-108.2(C) defines "gross income" broadly for 

purposes of calculating child support. "'[G]ross income' shall 

mean all income from all sources." Id. However, "gross income" 

does "not include benefits from public assistance programs as 

defined in § 63.1-87, federal supplemental security income 

benefits, or child support received." Id. "'Assistance' and 

'public assistance' mean and include aid to dependent children, 

auxiliary grants to the aged, blind and disabled, medical 

assistance, food stamps, general relief, fuel assistance, and 

social services." Code § 63.1-87. The father contends that the 

social security and federal housing benefits the mother receives 

do not fall within the exception in Code § 20-108(C) to "gross 

income." 

 In Whitaker v. Colbert, 18 Va. App. 202, 205, 442 S.E.2d 

429, 431 (1994), on which the father relies, we held that social 

security benefits received by a parent for a personal disability 

are income for purposes of Code § 20-108.2. See also 

Commonwealth v. Skeens, 18 Va. App. 154, 158, 442 S.E.2d 432, 435 

(1994) ("The payment of money to the child's custodian in the 

form of Social Security payments is an indirect payment from the 

obligor parent for which the parent should receive credit"). The 

father's reliance on Whitaker is misplaced because the father is 

not the disabled party. In Whitaker, we stated that 

 [t]he social security benefits received by 

the children are not gratuities, but are 

entitlements earned by [the parent] through 

his earlier employment. They are a 

substitute for his lost ability to provide 
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for the children through the fruits of future 

employment. 

18 Va. App. at 205, 442 S.E.2d at 431. Here, Isaac's benefits 

are not based upon the father's future employment and they do not 

substitute for the father's loss of earnings or support. 

 Although the parents' income is taken into account in 

determining a disabled child's eligibility and amount of benefits 

under the SSI program, the primary purpose of the program is to 

provide special assistance to disabled children in low-income 

households. See H.R. Rep. No. 231, 92d Cong., 2d Sess., 

reprinted in 1972 U.S.C.C.A.N. 4989, 5133-34. "SSI benefits 

received by a disabled child are intended to supplement other 

income, not substitute for it . . . [and] the noncustodial 

parent's child support obligation is not impacted by the receipt 

of SSI on the behalf of a disabled child." Kyle v. Kyle, 582 

N.E.2d 842, 846 (Ind. Ct. App. 1991). Accordingly, the father is 

not entitled to a credit or reduction in his child support 

obligation as a result of the SSI benefits the mother receives 

for Isaac's disability. See Code § 20-108.2(C) (providing that 

gross income does not include "federal supplemental security 

income benefits"); see also Lovett v. Lovett, 428 S.E.2d 874, 876 

(S.C. 1993) (holding that "Husband was not entitled to offset his 

support obligation by the amount of Social Security benefits 

awarded children as a result of [Wife's] disability"). 

 Like SSI benefits, Section 8 federal housing benefits are 

also supplemental in nature because they are intended to provide 
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special assistance to low-income families. See 42 U.S.C. 

§ 1437f(a) ("For the purpose of aiding low-income families in 

obtaining a decent place to live and of promoting economically 

mixed housing, assistance payments may be made with respect to 

existing housing in accordance with the provisions of this 

section"); 24 C.F.R. § 880.101(a)(1). Therefore, we hold that 

the federal housing benefits the mother receives qualify as 

"public assistance" under Code § 63.1-87, and that the trial 

court did not err by declining to include the SSI benefits and 

the housing benefits in the mother's gross income. 

OCTOBER 1994 INCOME

 The trial court ordered that the father's child support 

obligation shall include a "one time adjustment of $574.00" for 

income he earned during October 1994 "on which he paid nothing 

for the support of his family." Accordingly, the court included 

that amount in the total arrearage of $14,458.53 as of February 

1, 1995. The father contends that the court exceeded its 

authority by retroactively modifying the support order as it 

applied to the month of October 1994. He argues that the past 

support obligation, which included October 1994, was vested and 

fixed by judgment. 

 A trial court may not retroactively modify a child support 

decree to cancel a support arrearage or to relieve a parent of an 

accrued support obligation. Cofer v. Cofer, 205 Va. 834, 838-39 

140 S.E.2d 663, 666-67 (1965); Taylor v. Taylor, 10 Va. App. 681, 
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683-84, 394 S.E.2d 864, 866 (1990). Past due installments become 

vested and are not subject to change. Taylor, 10 Va. App at 683, 

394 S.E.2d at 865-66. A court may only modify a support order to 

be effective prospectively. Id. The order may be made effective 

"with respect to any period during which there is a pending 

petition for modification, but only from the date that notice of 

such petition has been given to the responding party." Code 

§ 20-108. The court may modify its support order upon motion of 

any party in interest or upon its own motion. Id. We hold that 

the prohibition announced in Cofer against retroactive 

modifications to relieve support obligations applies with equal 

force to prevent a trial court from retroactively modifying its 

support order to increase a party's past support obligation. 

 We do not, however, view the trial court's one time award of 

$574 as a retroactive modification or increase in a past due or 

vested amount of support. Rather, we view the trial court's 

award, which was predicated on its own motion pursuant to the 

authority granted by Code § 20-108, as ordering the father to pay 

on a one time basis, an amount based on recent earnings as part 

of his current support obligation. The fact that the court's 

award was based on past earnings does not render it a 

modification of a prior order or award or prevent the court from 

making a one-time lump sum child support award when the 

circumstances so justify. See Carter v. Thornhill, 19 Va. App. 

501, 507, 453 S.E.2d 295, 299 (1995). Frequently, a one-time 
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past event, such as an inheritance or liquidation of an asset or 

other windfall that has already occurred, will justify a 

prospective one-time award of support. Such an award or 

modification operates prospectively, not retroactively. By 

declaring the amount due and payable and including it in the 

arrearage, the court did not retroactively modify its support 

order. See Dziarnowski v. Dziarnowski, 14 Va. App. 758, 762, 418 

S.E.2d 724, 726 (1992) ("When a trial court reaches the correct 

result for the wrong reason, its judgment will be upheld on 

appeal"). Therefore, we affirm the trial court's order 

establishing a one-time monthly child support obligation of $574. 

 For the foregoing reasons, we affirm the trial court's 

order. 

Affirmed.
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Benton, J., concurring. 

 I join in the opinion except a portion of the section styled 

Imputation of Income. 

 The evidence established that the youngest child, who is 

disabled, attends school and day care all day each weekday. I 

find nothing in the record that established that the mother has 

any greater need to visit the youngest child's school than any 

other working parent who has children in school. No evidence 

proved either the frequency of her visits or the length of her 

visits to the school. 

 The evidence further established that the mother voluntarily 

removed the two older children from the public school system to 

"home school" them herself. I believe that the record proved 

that the mother's unavailability to seek employment was based 

solely upon her voluntary decision to "home school" two of her 

children. In deciding to remove the two older children from 

school, she voluntarily chose "the convenience or personal 

preference . . . to remain unproductive . . . so as to avoid 

support obligations." Hur v. Virginia Dep't of Social Servs., 13 

Va. App. 54, 60, 409 S.E.2d 454, 458 (1991). Thus, I would hold 

that her decision to "home school" her children was a voluntary 

decision taken "to the detriment of [her] support obligations to 

the children." Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 

20, 22 (1993). 

 I concur in the judgment, however, because I agree with the 
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majority's additional rationale that the father failed to 

establish that the mother, who has been unemployed since 1985, 

could find employment. The statement of facts recites that 

"[n]either party presented evidence as to employment available to 

[the mother] given her skills and experience." Thus, I would 

hold, not that the evidence failed to prove a material change in 

circumstance, but that the evidence failed to prove the 

availability of employment and was insufficient to "enable the 

trial judge reasonably to project what amount [of income] could 

be anticipated" if employment was available to the mother. Hur, 

13 Va. App. at 61, 409 S.E.2d at 459. Accordingly, I would 

uphold the trial judge's ruling with respect to imputed income 

only because, as he found, "there was insufficient evidence of 

any income that could be imputed to [the mother]." 

 Except as stated above, I concur in the remainder of the 

opinion and would affirm the judgment.