COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Annunziata 

NISHAT I. KARIMI 

 MEMORANDUM OPINION* BY 

v. Record No. 1416-97-3 JUDGE SAM W. COLEMAN III 

 JUNE 16, 1998 

IFTEKHAR A. KARIMI 

 FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO 

Rudolph Bumgardner, III, Judge 

 (Jeffrey A. Ward; Franklin, Franklin, 

Denney & Ward, on brief), for appellant. 

Appellant submitting on brief. 

 (Bruce R. Williamson, Jr.; Williamson & 

Toscano, on brief), for appellee. Appellee 

submitting on brief. 

 Nishat I. Karimi (mother) appeals the trial court's order 

terminating Iftekhar Karimi's (father's) obligation to pay child 

support, which termination the court based upon the parties and 

the child having relocated from Virginia to India. Mother 

contends the trial court abused its discretion in abating the 

original child support order where no other court of competent 

jurisdiction had assumed jurisdiction or established support for 

the child. For the reasons that follow, we reverse the trial 

court's abatement order and remand for further proceedings. 

 BACKGROUND

 Mother and father were lawfully married in Indiana in 1988. 

 Mother moved to India in 1989 where she gave birth to the 

 

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

designated for publication. 
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couple's only child. Father remained in the United States and 

eventually moved to Waynesboro to work as an engineer. 

 Mother came to Virginia in 1995 and commenced an action for 

child support in the Juvenile and Domestic Relations District 

Court for the City of Waynesboro. She resided in Virginia for 

several months while the action was pending. The parties 

executed an agreement wherein father agreed to pay child support 

in the amount of $500 per month, which agreement was incorporated 

into a July 1995 order of the juvenile and domestic relations 

court. The mother eventually returned to India, where the child 

has always resided. 

 In December 1995, father filed a motion to modify the 

support order on the ground that the cost of living in India was 

substantially less than in Virginia. The juvenile and domestic 

relations court denied the motion. While his appeal from the 

denial of the motion to modify was pending before the circuit 

court, father lost his job and moved to India. Subsequently, he 

filed a motion to abate the child support order on the ground 

that both parties and the child no longer resided in Virginia. 

In support of his motion, he testified that he had initiated an 

action for custody of the child in an Indian court and that, as 

the noncustodial parent, he is precluded from raising child 

support issues under Indian law. The circuit court granted the 

father's motion to abate the child support order, holding that it 

was "no longer appropriate for [the court] to order the payment 
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of child support" in light of the parties' circumstances. 

ANALYSIS

 It is well established in Virginia that a trial court may 

modify or terminate child support "when the petitioning party has 

proven . . . a material change in circumstances." Kaplan v. 

Kaplan, 21 Va. App. 542, 547, 466 S.E.2d 111, 113 (1996). See

Code § 20-108. "Once a party has demonstrated a material change, 

the court must determine whether that change justifies a 

modification [or termination of] the support award by considering 

the present circumstances of the parties and the benefit of the 

children." Cooke v. Cooke, 23 Va. App. 60, 64, 474 S.E.2d 159, 

160-61 (1996) (emphasis added) (citation omitted). The decision 

whether to modify or terminate child support is a matter of 

judicial discretion which the courts must exercise with the best 

interests of the child as its paramount consideration. See

Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 474 

(1991); Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 

S.E.2d 10, 11 (1986). 

 The trial court's abatement of the child support order was 

an abuse of discretion. While the parents and child were 

residing in Virginia, the trial court had determined the father's 

obligation to support his child and, based upon the parents' 

agreement which ostensibly indicated the father's ability to 

provide support and the child's needs, set the amount of the 

support obligation at $500 per month. Although the parents and 
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child no longer resided in Virginia when the change in condition 

hearing was held, the trial court had continuing jurisdiction to 

enforce and modify its original child support order. See Code 

§ 20-88.35(6); Commonwealth ex rel. Kenitzer v. Richter, 23 Va. 

App. 186, 193, 475 S.E.2d 817, 820 (1996). Nothing in Code 

§ 20-88.39 of the Uniform Interstate Family Support Act, which 

prescribes when Virginia courts may exercise continuing, 

exclusive jurisdiction, vitiates a Virginia court's continuing 

jurisdiction to modify its own support order under the 

circumstances in this case. See Code § 20-108; cf. Richter, 23 

Va. App. at 192 n.1, 475 S.E.2d at 820 n.1. Code § 20-88.39(B) 

provides only that a Virginia court "may not exercise its 

continuing jurisdiction to modify [a valid child support] order 

if the order has been modified by a tribunal of another state" 

pursuant to a law substantially similar to this chapter. 

(Emphasis added). The parents and child now live in a foreign 

country, not in another state. However, because the original 

support order has not been modified or supplanted by proceedings 

in another court of competent jurisdiction, the trial court 

retained its continuing jurisdiction to modify the order even 

though the parents and child no longer reside in Virginia. Cf.

Richter, 23 Va. App. at 193, 475 S.E.2d at 820 ("Virginia 

continues to have the right to enforce its own decrees even if 

all parties are no longer residents."). 

 We reject the father's argument that the trial court's 
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decision to abate the child support order should be affirmed 

because under Indian law only the custodial parent, the mother in 

this case, can initiate child support proceedings. The father 

argues that the case should be controlled by Indian law and 

economic standards since all parties reside there. He maintains 

that unless the Virginia support order was abated, the mother has 

no incentive to initiate support proceedings in India because she 

can reap greater financial gain by not invoking the jurisdiction 

of the Indian courts and continuing to enforce the Virginia 

support order. By abating the Virginia support order, the trial 

court will compel the mother, so the father argues, to initiate 

support proceedings in India. 

 However, we find the trial court's abatement of the child 

support order failed to consider the father's continuing 

obligation to support his child and failed to consider the 

child's best interest and need for support. By abating the 

support order, the trial court placed the custodial parent, who 

had obtained an enforceable support order in the jurisdiction of 

the father's residence, in the position of having no enforceable 

support order. The trial court could have exercised its 

continuing original jurisdiction, on motion of the father or on 

its own motion pursuant to Code § 20-108, to modify father's 

support obligations to reflect the lower cost of living in India 

or to take into account the father's loss of employment in 

Virginia. Where the trial court could have reduced the father's 
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support obligation and ensured continued support for the child, 

the court abused its discretion by terminating support for the 

child merely because the parents and child no longer resided in 

Virginia. Accordingly, we reverse the trial court's order 

terminating father's obligation to pay child support and remand 

the case for further proceedings in accordance with this opinion. 

 Reversed and remanded.