COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Fitzpatrick and Senior Judge Hodges 

Argued at Alexandria, Virginia 

PAUL PIERRE SMYTH 

v. Record No. 2339-94-4 MEMORANDUM OPINION* BY 

 JUDGE JERE M. H. WILLIS, JR. 

AMY RUTH SMYTH OCTOBER 3, 1995 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

J. Howe Brown, Jr., Judge 

 Peter Imants Grasis (Stephen G. Cochran; 

Brian M. Miller, on brief), for appellant. 

 Mark B. Sandground, Sr. (Judy Tyrrell; 

Sandground, Barondess & West, P.C., on 

brief), for appellee. 

 Paul Pierre Smyth contends that the trial court erred (1) in 

concluding that he had the ability to pay child support, (2) in 

denying his motion to terminate child support, and (3) in 

requiring him to post a $25,000 surety bond. We find no error 

and affirm the judgment of the trial court. 

 By order dated April 18, 1994, the trial court ordered Mr. 

Smyth to pay $2,227 per month for child support pendente lite. 

On July 21, 1994, Mr. Smyth was convicted of money laundering in 

violation of 18 U.S.C. 1956 (a)(3) and was sentenced to serve 

nine years in a federal penitentiary, without possibility of 

parole. On July 27, 1994, he filed a motion to modify his 

support obligation, asserting a "substantial change in 

 

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

designated for publication. 
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circumstances, justifying a reduction or elimination in child 

support." On September 2, 1994, Ms. Smyth moved to attach Mr. 

Smyth's separate assets for payment of child support. After a 

hearing was held on September 9, 1994, the trial court denied 

both motions. 

 By decree of divorce a vinculo matrimonii entered November 

8, 1994, the trial court required Mr. Smyth to pay $2,227 per 

month for the maintenance and support of the parties' three minor 

children. At that time, Mr. Smyth had accrued an arrearage of 

$4,454 for the months of September and October 1994. The trial 

court reduced this arrearage to judgment. 

 Mr. Smyth contends that the trial court erred in determining 

that he had the ability to pay child support and in denying his 

motion to modify his support obligation. 

 Code § 20-108 provides continuing jurisdiction to change or 

modify a decree providing maintenance of minor children. "In 

order to invoke the court's continuing jurisdiction to modify its 

decree, the party seeking a change has the burden of proving by a 

preponderance of the evidence, a material change in circumstances 

justifying a modification of the decree." Edwards v. Lowry, 232 

Va. 110, 112, 348 S.E.2d 259, 261 (1986). 

 A party seeking to reduce the amount of support payments for 

minor children because of a change in financial condition must 

make a full and fair disclosure of his ability to pay and show 

that his lack of ability to pay is not due to his own voluntary 
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act or neglect. Hammers v. Hammers, 216 Va. 30, 31-32, 216 

S.E.2d 20, 21 (1975). 

 Mr. Smyth's diminution in income was the "direct consequence 

of his voluntary wrongful act." Edwards, 232 Va. 113, 348 S.E.2d 

at 261. He was convicted in federal court of money laundering 

and was sentenced to serve nine years in a federal penitentiary. 

 He offered no evidence of inability to pay child support other 

than this conviction. He failed to meet the second requirement 

of Hammers, to prove "that the lack of ability to pay is not due 

to any voluntary act or neglect." Antonelli v. Antonelli, 242 

Va. 152, 154, 409 S.E.2d 117, 119 (1991). He "failed to meet the 

burden of proving himself free of responsibility for his change 

of circumstances, and was not entitled to a reduction in support" 

based upon the loss of income caused by his conviction. Edwards, 

232 Va. at 113, 348 S.E.2d at 261. 

 Mr. Smyth next contends that the trial court erred in 

requiring him to post a $25,000 surety bond to secure his child 

support obligation. We find no error. Code § 20-114 states: 

 Upon the entry, or thereafter, of any . . . decree for 

support and maintenance for . . . a child or children 

in a pending or concluded divorce suit, . . . the court 

in its discretion may require the giving of 

recognizance, with or without surety, for compliance 

therewith, by the party against whom such order or 

decree is entered. 

Va. Code Ann. § 20-114. 

 We affirm the judgment of the trial court. 

 Affirmed.