COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Fitzpatrick 

Argued at Richmond, Virginia 

COMMONWEALTH OF VIRGINIA, VIRGINIA 

 DEPARTMENT OF SOCIAL SERVICES, 

 DIVISION OF CHILD SUPPORT ENFORCEMENT, 

 ex rel., PHYLLIS S. EWING OPINION BY 

 JUDGE JOHANNA L. FITZPATRICK 

v. Record No. 1480-95-2 MAY 21, 1996 

 

FRANKLIN R. J. EWING, III 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Melvin R. Hughes, Jr., Judge 

 

 Keith H. Warren, Special Counsel, Virginia 

Department of Social Services, Division of 

Child Support Enforcement (Betsy S. Elliott, 

Senior Special Counsel, Virginia Department 

of Social Services, 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 briefs), for appellant 

Division of Child Support Enforcement. 

 Jacqueline G. Epps (Morris and Morris, on 

brief), for appellant Phyllis S. Ewing on 

custody issue. 

 Deanna D. Cook (Bremner & Janus, on brief), 

for appellee. 

 Phyllis S. Ewing and the Virginia Department of Social 

Services (collectively referred to as mother) appeal the trial 

court's order denying mother an award of child support. She 

argues that the trial court erred in eliminating the child 

support obligation of Franklin R. J. Ewing, III (father) after 

determining that he had become voluntarily unemployed. Father 

appeals the trial court's continuation of mother's sole legal 
 2 

 

custody of the parties' child. For the reasons that follow, we 

reverse the trial court's elimination of father's child support 

obligation and affirm its resolution of the child custody issue.1

 BACKGROUND

 The parties were married on September 7, 1991 and separated 

on February 12, 1994. They have one child, born December 30, 

1992. 

 Father is a licensed pharmacist, whose 1991 income was 

approximately $79,000. In 1992, father entered medical school at 

the Medical College of Virginia, but continued to work part time 

as a pharmacist, earning approximately $45,000 in 1993. After 

the parties separated, mother filed for an award of child support 

in the Juvenile and Domestic Relations District Court for the 

City of Richmond. On March 15, 1994, the court entered an agreed 

order that required father to pay $400 per month in child 

support. At the time of the entry of the support order, father 

was in medical school but continued to work as a pharmacist. 

Four months after the entry of the order, in July 1994, father 

quit his job as a pharmacist. He testified that, as a third-year 

medical student, he would be unable to work part time and attend 

school full time because of the demands of his class schedule. 

He supports himself with student loans and loans from his 

parents. Mother works as an administrative assistant at a law 

 1We deny father's motion to dismiss because the record fails to 

show that the notice of appeal was not timely filed. 
 3 

firm, earning a monthly salary of $1875. She has a $362 monthly 

shortfall in her budget. 

 Mother was awarded sole legal custody of the parties' child, 

with father having visitation every other weekend and a midweek 

visit during those weeks with no scheduled weekend visitation. 

Father does not speak to mother about matters relating to the 

child, and he and mother have not directly communicated with one 

another since their separation. Father also does not speak to 

mother's sister, who serves as a neutral party for visitation 

purposes. Written notes are the only form of communication 

between the parties. 

 After a hearing on April 4, 1995, the trial court: (1) 

completely eliminated father's monthly child support obligation, 

and (2) denied father's request for joint legal custody. The 

trial court determined that, although father "is voluntarily 

unemployed now, . . . he is pursuing education that will 

hopefully enhance his earnings potential in the not too distant 

future and better secure his financial position for his good and 

that of his child." After calculating father's presumptive 

amount of child support to be zero, the trial judge refused to 

impute income to father and stated that he could not "find that 

the amount is 'unjust or inappropriate' in order to consider an 

alternate child support obligation due from [father]." In 

denying father's request for joint legal custody, the trial judge 

found that "communication is not occurring between the parents. 
 4 

Communication and cooperation for the sake of the child has to be 

present to make joint custody work." (Emphasis added). 

 CHILD SUPPORT

 Mother argues that the trial court erred in eliminating 

father's child support obligation. The court specifically found 

that father became voluntarily unemployed when he left his job as 

a pharmacist to attend medical school full time. Mother contends 

that, upon making this finding, the court was required to deny 

father's motion for a reduction in child support.2

 We agree. 

 "Once a child support award has been entered, only a showing 

of a material change in circumstances will justify modification 

of the support award. The moving party has the burden of proving 

a material change by a preponderance of the evidence." Crabtree 

v. Crabtree, 17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993). 

"[A] party seeking a reduction in support payments has additional 

burdens: '[H]e must make a full and clear disclosure relating to 

his ability to pay. He must also show that his lack of ability 

to pay is not due to his own voluntary act or because of his 

neglect.'" Edwards v. Lowry, 232 Va. 110, 112-13, 348 S.E.2d 

259, 261 (1986) (emphasis added) (quoting Hammers v. Hammers, 216 

Va. 30, 31-32, 216 S.E.2d 20, 21 (1975)). Thus, in order to 

prove a material change in circumstances that justifies a 

 

 2Mother does not dispute the trial court's finding that father 

suffered a material change in circumstances. She argues that 

father failed to meet the additional burden of proving that his 

material change in circumstances was not the result of his own 

voluntary act. 
 5 

reduction in support, a 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, 119 

(1991) (quoting Code § 20-108.1(B)(3)). 

 In Antonelli, the Supreme Court of Virginia denied the 

father's request for a reduction in his child support obligation 

because he voluntarily quit his job as a salaried stockbroker to 

become a commissioned broker. 242 Va. at 156, 409 S.E.2d at 119. 

 The Court held that, when the father "chose to pursue other 

employment, albeit a bona fide and reasonable business 

undertaking, the risk of his success at his new job was upon the 

father, and not upon the children." Id. at 156, 409 S.E.2d at 

119-20. Thus, "the risk of reduction in income as a result of a 

parent's intentional act, even if done in good faith, is 

insufficient grounds for reducing the amount of support due under 

a pre-existing order." Hamel v. Hamel, 18 Va. App. 10, 13, 441 

S.E.2d 221, 222 (1994) (emphasis added). 

 In the instant case, the trial court specifically found that 

father became "voluntarily unemployed" when he quit his job as a 

pharmacist to attend medical school full time. This finding is 

clearly supported by the record. When father left his job as a 

pharmacist without being discharged, he voluntarily terminated 

his employment to the detriment of his support obligation to his 

child. Although father's voluntary unemployment constituted a 

change in circumstances, he failed to prove that this change in 
 6 

circumstances was not the result of his "voluntary act." 

Additionally, father presented no change in circumstances that 

might justify a reduction in support other than his unilateral 

decision to quit his employment four months after the initial 

amount of support was ordered. Thus, under the rationale of 

Edwards and Antonelli, the trial court should have denied 

father's request for a reduction in child support. 

 Father argues that the record fails to show that he pursued 

his medical degree in bad faith or that he quit his pharmacist 

job to avoid his support obligation. Some jurisdictions use a 

good-faith analysis in determining whether a parent is entitled 

to a modification of child support when he or she leaves 

employment to become a full-time student.3

 Although no Virginia 

 

 3In student obligor cases, other jurisdictions have applied a 

good faith analysis. See, e.g., In re Marriage of Seanor, 876 

P.2d 44 (Colo. Ct. App. 1993), aff'd in part, rev'd in part, 891 

P.2d 1002 (Colo. 1995); Sabatka v. Sabatka, 511 N.W.2d 107 (Neb. 

1994); Ciostek v. Ciostek, 588 N.Y.S.2d 690 (N.Y. App. Div. 1992). 

 These courts hold that "[a] parent responsible for the support of 

the children may, where necessary, forego employment and pursue 

further education that will enhance his earning capacity and 

thereby ultimately benefit the children. A parent may not, 

however, unilaterally forego employment in an attempt to evade 

support responsibilities." Ciostek, 588 N.Y.S.2d at 691 (citation 

omitted). However, some courts using a good faith analysis in 

student obligor cases have placed limitations on good faith. For 

example, although a parent is acting in good faith by pursuing 

further education, this conduct cannot be "intended to deprive a 

child of support and [cannot] unreasonably reduce the support 

available to a child." Seanor, 876 P.2d at 48 (emphasis added). 

Additionally, other courts have recognized that good faith is only 

one factor to be considered in determining whether a student 

obligor is entitled to a modification of support and that "the 

paramount concern and question in determining child support . . . 

is the best interests of the child." Sabatka, 511 N.W.2d at 111-

13. 
 7 

case has addressed this issue in the context of a student 

obligor, Virginia courts have held that a parent's voluntary 

unemployment, "even if done in good faith," does not justify 

reducing his or her obligation to pay child support. Hamel, 18 

Va. App. at 13, 441 S.E.2d at 222. See also Antonelli, 242 Va. 

at 155-56, 409 S.E.2d at 119. Additionally, "[i]n setting an 

award of child support, the 'primary issue before a trial judge 

is the welfare and best interests of the child, not the 

convenience or personal preference of a parent.'" Brody v. 

Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993) (quoting 

Hur v. Virginia Dep't of Social Servs. Div. of Child Support 

Enforcement ex rel. Klopp, 13 Va. App. 54, 60, 409 S.E.2d 454, 

458 (1991)). 

 While a family is intact, the parents' choice 

of occupations and the family's standard of 

living are left to the parents' discretion as 

long as the children's basic needs are met. 

Once the parents are separated, however, "the 

law of this Commonwealth allows the courts to 

provide for the child's basic needs and, 

within reason, some measure of assumed 

parental generosity." After divorce, 

although a parent may voluntarily terminate 

his or her employment, he or she may not do 

so to the detriment of support obligations to 

the children.

Brody, 16 Va. App. at 651, 432 S.E.2d at 22 (emphasis added) 

(quoting Conway v. Conway, 10 Va. App. 653, 658, 395 S.E.2d 464, 

467 (1990)). 

 Father's voluntary termination of his substantial current 

income to secure a possible future reward overlooks the current 
 8 

needs of the child and gives priority to a parent's ambition. 

Additionally, in this case, father presented no evidence 

regarding how his medical school education would benefit his 

child or when the hoped for financial benefit would be realized. 

 Mother's evidence established that she had a monthly shortfall 

in her budget of $362 and needed the court-ordered child support 

to adequately care for the child. The present needs of the child 

should not be discounted, awaiting a possible future windfall. 

Thus, we hold that a parent's voluntary termination of income in 

order to pursue a possible future gain in income is insufficient 

to support a modification of child support, even if done in good 

faith. 

 CHILD CUSTODY

 Father contends that the trial court erred in denying his 

request for joint legal custody of the parties' child and in 

awarding sole legal custody to mother. 

 In matters of custody . . . the court's 

paramount concern is always the best 

interests of the child. . . . In matters of a 

child's welfare, trial courts are vested with 

broad discretion in making the decisions 

necessary to guard and to foster a child's 

best interests. A trial court's 

determination of matters within its 

discretion is reversible on appeal only for 

an abuse of that discretion, and a trial 

court's decision will not be set aside unless 

plainly wrong or without evidence to support 

it. 

Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 

(1990) (citations omitted). In this case, the trial court did 
 9 

not abuse its discretion in denying father's request for joint 

legal custody. The evidence established the parties' lack of 

communication concerning the child. Mother's sister testified 

that she served as a neutral third party for delivery of the 

child for father's visitation and that communication with father 

was nonexistent during the exchanges. Under these facts, the 

trial court's determination that joint legal custody was not in 

the child's best interests was not plainly wrong and was 

supported by the evidence. 

 Accordingly, the decision of the trial court is affirmed as 

to the child custody issue and reversed as to the denial of child 

support. 

 Affirmed in part and

reversed in part.