COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Annunziata 

Argued at Richmond, Virginia 

JEFFREY S. SMITH 

 

v. Record No. 0206-01-2 

 

KATHY D. MANN MEMORANDUM OPINION* BY 

 JUDGE ROSEMARIE ANNUNZIATA 

KATHY D. MANN DECEMBER 18, 2001 

v. Record No. 0647-01-2 

JEFFREY S. SMITH 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 Ronald S. Evans (Brenner, Evans & Yoffy, P.C., 

 on briefs), for Jeffrey S. Smith. 

 Robert L. Flax (Flax & Stout, on briefs), for 

Kathy D. Mann. 

 Jeffrey S. Smith contends on appeal that the trial court 

erred when it denied his petition to reduce his child support 

obligation. Smith specifically argues that the evidence fails 

to support the court's finding that Gary, a child of the parties 

who was over age eighteen, was "mentally deficient and entitled 

to support." Kathy D. Mann cross appeals on the ground that the 

trial court failed to impute income to Smith and failed to 

include as part of Smith's gross income certain funds received 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
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from his father in 1998. For the reasons that follow, we 

affirm. 

I.

Procedural History

 The parties' marriage was dissolved by final decree of 

divorce entered on November 29, 1990. Three children were born 

of the marriage: Jeffrey Smith, born on December 18, 1981, Bart 

Smith, born on June 26, 1978, and Gary Smith, born on July 19, 

1975. 

 On March 8, 1991, the trial court ordered Smith to pay $775 

per month for the support, maintenance and education of the 

parties' three children. On June 23, 1993, the court decreased 

the amount to $535 per month, because Smith had custody of one 

of the children, to continue until further order of the court. 

 On July 19, 1993, Gary Smith turned eighteen. On June 26, 

1996, Bart Smith turned eighteen. On August 7, 1996, Smith 

petitioned to further reduce his child support obligation 

claiming that "the two oldest children have been emancipated by 

age." On August 14, the matter was reinstated. 

 On March 1, 1999, the trial court found Gary Smith 

"mentally deficient and entitled to support." It applied the 

child support guidelines and ordered Smith to pay $292.42 a 

month in child support for his two unemancipated children. The 

court declined to impute income to Smith or for funds received 

from his father in 1998. 
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II.

Analysis

A. Smith's Appeal

 Code § 20-124.2(C) provides in pertinent part: 

The court may also order the 

continuation of support for any child 

over the age of eighteen who is (i) 

severely and permanently mentally or 

physically disabled, (ii) unable to 

live independently and support himself, 

and (iii) resides in the home of the 

parent seeking or receiving child 

support. 

Smith appeals the trial court's finding that Gary Smith, 

who is over the age of eighteen, was "mentally deficient and 

entitled to support." Smith concedes that Gary is seriously 

mentally disabled, but contends the evidence failed to prove 

that his disability is "permanent." We disagree. 

 "Decisions concerning child support rest within the sound 

discretion of the trial court and will not be reversed on appeal 

unless plainly wrong or unsupported by the evidence." Smith v. 

Smith, 18 Va. App. 427, 433, 444 S.E.2d 269, 274 (1994). 

Therefore, we review the evidence in the light most favorable to 

Mann, the party prevailing below on this issue. Germek v. 

Germek, 34 Va. App. 1, 8, 537 S.E.2d 596, 600 (2000). 

 Kent McDaniel, Gary's treating psychiatrist since July 

1997, testified that Gary suffers from a learning disability, 

depression, attention deficit hyperactivity disorder, a minimal 

brain dysfunction syndrome, and, most significantly, chronic 
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disorganized schizophrenia. Disorganized speech, disorganized 

thoughts, disorganized behavior, and inappropriate or flat 

affect characterize chronic disorganized schizophrenia. His 

daily medication includes risperdal, ritalin, and an 

antidepressant. Prior to beginning treatment with McDaniel, 

Gary was hospitalized for two years at Central State Hospital 

for schizoaffective disorder, bipolar type, substance abuse 

problems, and a psychosocial and environmental problem.1 He was 

discharged in January 1997 on the condition that he receive 

medication and "intensive community follow-up" at Lakeside 

House, a day treatment program for mentally ill persons. The 

discharge notice designated him as mentally ill, not recovered. 

 Addressing the issue of permanency, McDaniel further 

testified that Gary's prognosis is complicated because his 

illness does not present a classic case of chronic disorder 

schizophrenia. Notwithstanding the difficulties posed by Gary's 

syndrome, McDaniel stated that his prognosis is "poor in the 

sense that we wouldn't expect much change unless there's some 

kind of treatment that would benefit Gary." No such available 

treatment was identified by McDaniel. According to McDaniel, 

Gary is unlikely to ever be able to live on his own or support 

1

 According to McDaniel, a diagnosis of schizoaffective 

disorder, bipolar type, is based on the presence of a bipolar 

mood disorder and psychotic symptoms such as disorganized 

behavior, hallucinations or illusions. 
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himself. On cross-examination, he agreed that he was not able 

to say that Gary is "permanently mentally disabled." 

 This medical and testimonial evidence, viewed as a whole, 

supports the trial court's conclusion that Gary Smith is 

"severely and permanently mentally disabled" within the meaning 

of Code § 20-124.2(C). Smith argues, however, that, because 

McDaniel could not opine that Gary is "permanently" mentally 

disabled, Mann failed to sustain her burden of proof on that 

issue. We disagree. 

 The law is well settled in Virginia that the fact finder 

must consider the evidence as a whole, and is not required to 

accept the opinion of an expert as conclusive. McLane v. 

Commonwealth, 202 Va. 197, 206, 116 S.E.2d 274, 281 (1960); 

Piatt v. Piatt, 27 Va. App. 426, 434, 499 S.E.2d 567, 571 

(1998); Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 

668 (1997) (en banc); Blevins v. Commonwealth, 11 Va. App. 429, 

432, 399 S.E.2d 173, 175 (1990); Lassen v. Lassen, 8 Va. App. 

502, 507, 383 S.E.2d 471, 474 (1989); Godley v. Commonwealth, 2 

Va. App. 249, 251, 343 S.E.2d 368, 370 (1986). In this case, 

the trial judge credited McDaniel's testimony stating that 

Gary's condition is chronic and "doesn't go away and doesn't get 

better." The court discounted McDaniel's inability to opine 

that Gary is "permanently mentally disabled," resolving any 

conflict posed by this response in favor of his testimony 

establishing permanency as a matter of fact, and in light of 
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McDaniel's explanation that the issue of permanency, was, in 

part, contingent on what new treatments may become available. 

See Street, 25 Va. App. at 387, 488 S.E.2d at 688 (noting that 

the trier of fact "has the discretion to accept or reject any of 

the witness' testimony"); Barnes v. Wise Fashions, 16 Va. App. 

108, 111, 428 S.E.2d 301, 303 (1993) (trial court may resolve 

any apparent conflicts in the testimony of an expert). We, 

therefore, affirm the trial court's finding that Gary is 

permanently mentally disabled and entitled to continued support 

from his father. 

B. Mann's Appeal

 Mann appeals the trial court's calculation of the child 

support award on the ground that it erroneously declined to 

impute income to Smith based on his voluntary underemployment in 

accordance with Code § 20-108.1(B)(3).2 She contends that Smith 

was voluntarily underemployed in 1998 because he chose to pursue 

a lawn care business rather than the more lucrative employment 

of caring for his sister. Her contention is without merit. 

 The trial court's "refusal to impute income will not be 

reversed unless plainly wrong or unsupported by the evidence." 

Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 

 2

 On appeal, Mann also argues that the trial court erred by 

failing to include in Smith's income a loan from his father of 

$4,165 in 1998, which he had not repaid by the time of trial. 

Because Mann failed to raise this issue before the trial court, 

we will not consider it here. Rule 5A:18. 
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784 (1999). Furthermore, "[t]he burden is on the party seeking 

imputation to prove that the other parent was voluntarily 

foregoing more gainful employment, either by producing evidence 

of a higher-paying former job or by showing that more lucrative 

work was currently available." Niemiec v. Dep't of Soc. Servs., 

Div. of Child Support Enforcement, 27 Va. App. 446, 451, 499 

S.E.2d 576, 579 (1998) (citations omitted). 

 The evidence proved that Smith earned approximately $30,000 

in 1996 selling life insurance at Virginia Asset Management, 

cutting grass, and providing nursing care for his sister, who 

was described as a grand mal epileptic. Smith's sister was 

placed in his care for about four and a half months when her 

parents could no longer afford the costs of the treatment center 

that had been caring for her. Smith's sister moved out of his 

home in October 1996, and he thereafter left his job at Virginia 

Asset Management in December 1996. Hoping to increase his 

income, he started a lawn care business, Environmental Turf Care 

in January 1997. Three or four months later, his sister sought 

to return to Smith's home, a request that Smith refused because 

he was "so busy with his new business." She lived with her 

parents at the time of the hearing. 

 Mann presented no evidence that Smith asked his sister to 

leave or otherwise voluntarily terminated his employment as her 

caretaker in October 1996. Nor did she provide evidence that 

Smith would be paid for his caretaker services had he acceded to 
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his sister's request, and in what, if any, amount. That failure 

of proof precludes a finding that Smith "was voluntarily 

foregoing more gainful employment." Niemiec, 27 Va. App. at 

451, 499 S.E.2d at 579 (holding that party seeking imputation of 

income must produce evidence that former spouse voluntarily left 

a higher paying job or "that more lucrative work was currently 

available"); see also Hur v. Dep't of Soc. Servs., Div. of Child 

Support Enforcement, 13 Va. App. 54, 61, 409 S.E.2d 454, 459 

(1991) (holding that party seeking imputation of income must 

provide sufficient evidence to "enable the trial judge 

reasonably to predict what amount could be anticipated"). 

Accordingly, we hold that the trial court properly 

determined that Smith was not voluntarily underemployed and 

affirm its decision not to impute income to Smith in calculating 

the child support award. 

Affirmed.