COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata 

Argued at Salem, Virginia 

VICTOR RAY LAYMAN, II 

 OPINION BY 

v. Record No. 2462-96-3 CHIEF JUDGE NORMAN K. MOON 

 AUGUST 5, 1997 

JANE ELIZABETH GRIER LAYMAN 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

Roy B. Willett, Judge 

 Jonathan Rogers (Jonathan Rogers, P.C., on 

briefs), for appellant. 

 Harvey S. Lutins (J. Emmette Pilgreen, IV; 

Lutins, Shapiro & Kurtin, on brief), for 

appellee. 

 Victor Ray Layman, II ("husband") appeals the order of the 

trial court denying his petition for modification of child 

support. Husband asserts that the trial court erred in: (1) 

finding that he was voluntarily unemployed as a result of his 

incarceration and was therefore not entitled to a reduction in 

child support; and (2) refusing to determine his child support 

obligation based upon imputed legally earned income. We hold 

that the trial court did not err in finding that husband's 

incarceration constituted voluntary unemployment. Accordingly, 

we affirm. 

 Husband and Jane Elizabeth Grier Layman ("wife") were 

married on December 19, 1981. From 1981 to 1996 husband averaged 

$16,000 a year in legally earned income. In 1990, husband's 

father died and husband inherited $100,000, which he used to open 
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a real estate business, the "Academy of Real Estate." The 

parties separated shortly thereafter and entered into a 

separation agreement in which husband agreed to pay $1,100 in 

monthly child support. Despite depleting his inheritance and 

incurring substantial debt, husband was unable to maintain his 

business, which ultimately failed in 1992. Husband had no legal 

source of income during 1991 and 1992. 

 The parties' final decree of divorce, incorporating the 

parties' separation agreement, was entered on February 6, 1992. 

Husband testified that he began growing and selling marijuana in 

1992 in order to "pay off all of the massive amount and [sic] 

debts and avoid bankruptcy" and so that he could continue to 

support his children. Husband was arrested in December, 1994, 

for growing marijuana and was subsequently convicted and 

sentenced to a five year prison term. On May 30, 1996, husband 

petitioned the trial court for a reduction in child support. 

Finding that husband's crime resulting in incarceration 

constituted voluntary unemployment, the trial court denied 

husband's petition. 

 In a petition for modification of child or spousal support, 

the moving party must prove a material change in circumstances 

that warrants modification of support. Yohay v. Ryan, 4 Va. App. 

559, 566, 359 S.E.2d 320, 324 (1987). Here, the evidence shows 

that husband experienced a material change in circumstances. At 

the time of the entry of the final decree of divorce, husband was 

actively pursuing a real estate business, financed in large part 
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by his inheritance of $100,000. At the time of husband's 

petition for modification, husband was incarcerated. 

 Whether this material change warranted modification of 

husband's support award requires that we address the question of 

whether a parent's incarceration can constitute voluntary 

unemployment under Code § 20-108.1(B)(3). Considering a case in 

which a parent sought reduction of his support obligation after 

being fired from his job for stealing, the Supreme Court held 

that: 

 In the case before us, it is undisputed that 

[petitioner's] diminution of income was the 

direct consequence of his voluntary, wrongful 

act. After receiving a direct warning from 

his employer following a previous theft, he 

was fired for stealing again. He failed to 

meet the burden . . . of showing himself free 

of responsibility for his change in 

circumstances, and was not entitled to a 

reduction in [child] support based upon the 

diminution of income caused by the loss of 

his job. 

Edwards v. Lowery, 232 Va. 110, 112-13, 348 S.E.2d 259, 261 

(1986). Here, husband similarly attempts to shift to his wife 

and children the consequences of his wrongdoing. In keeping with 

the principle articulated in Edwards, we hold that a parent's 

incarceration may be found to constitute voluntary unemployment 

under Code § 20-108.1(B)(3), and, consequently, it may preclude a 

reduction of a support obligation based on a loss of income 

resulting from that incarceration. 

 Accordingly, we affirm the trial court's finding that 

husband's incarceration did not entitle him to a reduction in 
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support. 

 Affirmed.