COURT OF APPEALS OF VIRGINIA 

Present: Judges Koontz*, Elder and Fitzpatrick 

Argued at Salem, Virginia 

CORA D. RAWLINGS 

v. Record No. 2026-94-3 OPINION BY 

 JUDGE LAWRENCE L. KOONTZ, JR. 

PHILIP W. RAWLINGS AUGUST 22, 1995 

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY 

J. Michael Gamble, Judge 

 George W. Nolley for appellant. 

 Philip B. Baker (Peter Mitchell, on brief), for appellee. 

 Cora D. Rawlings appeals a decision of the circuit court 

reducing the child support obligation of her former husband, 

Philip W. Rawlings, during the pendency of his participation in a 

legal union strike against his employer. Mrs. Rawlings asserts 

that Mr. Rawlings' voluntary participation in the strike 

constituted voluntary underemployment and, thus, was not ground 

for finding a material change in circumstances warranting a 

reduction in child support. She further asserts that if a 

modification review was warranted, the chancellor should have 

imputed income to Mr. Rawlings based upon his pre-strike wages. 

This appeal presents issues of first impression in this 

Commonwealth. Under the specific facts of this case and for the 

following reasons, we affirm the chancellor's decision. 

 The parties had divorced following a marriage which produced 

one child not emancipated at the time of the dissolution of the 

 

 *Justice Koontz prepared and the Court adopted the opinion 

in this case prior to his investiture as a Justice of the Supreme 

Court of Virginia. 
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marriage. On December 8, 1993, Mr. Rawlings was ordered to pay 

three hundred forty-eight dollars and fifty-four cents ($348.54) 

in monthly child support to Mrs. Rawlings. The child was then 

aged sixteen years, seven months.1

 At the time of the parties' marriage and at all times 

thereafter, Mr. Rawlings was employed by Aerofin Corporation 

where he is a member of an AFL-CIO affiliated trade union. On or 

before March 12, 1994, members of the union, including Mr. 

Rawlings, voted to undertake an approved strike. Mr. Rawlings 

received strike pay and worked temporary jobs during the course 

of the strike, but nonetheless suffered a significant reduction 

in income. 

 While continuing to attempt to pay the required child 

support payments to the best of his ability, Mr. Rawlings 

petitioned the appropriate juvenile and domestic relations 

district court for a reduction in child support based upon his 

change in income. The petition was denied and Mr. Rawlings 

appealed to the circuit court. Following an ore tenus hearing, 

the chancellor determined that Mr. Rawlings' participation in the 

strike did not constitute voluntary underemployment. The 

chancellor stated: 

 . . . [Mr. Rawlings'] family began in . . . [the] early 

seventies as a union family. At the time of . . . the 

divorce it was still a union family, [Mr. Rawlings] has 

a ninth grade education. He's been a member of the 

union. That has certain duties and obligations just 

like employment does. Had he been a recent member, had 

 

 1At oral argument, it was established that the child is now 

emancipated. 
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most of the union ignored the union vote, gone back 

across the line, that would be one situation, but here 

this union doesn't strike much. It's the only strike 

since the opening of the plant. He's been a member of 

[the union]. The family has benefitted from the fact 

that he's been in the union. So I think he does 

deserve a reduction. 

 I understand it's a hardship on everyone. It's 

not a[n] . . . ideal situation, but it's part of the 

work environment he's been in and this family is in 

from the time . . . he began working at this plant. 

 The chancellor ordered a reduction in child support from the 

date of the original petition and continuing during the pendency 

of the strike to one hundred seventy-four dollars ($174.00) per 

month. The parties were directed to calculate the appropriate 

arrearage, if any, based upon this amount and the amount actually 

paid during this time period. 

 We begin our analysis by noting that several other 

jurisdictions have held that participation in a legal strike 

warrants a reduction in the child support obligations of a 

parent. See, e.g., Cohn v. Cohn, 461 N.E.2d 1028, 1031 (Ill. Ct. 

App. 1984)("respondent participated in the strike in 'good faith' 

and was therefore entitled to a reduction in child support 

reflective of his present ability to pay"); Sandra L. v. John L., 

480 N.Y.S.2d 291, 293 (N.Y. Fam. Ct. 1984)("[t]he exercise of a 

federally protected right . . . may not be used against a worker 

to deny a reduction of his support obligation which would 

otherwise be granted for good cause"); see also O'Neal v. Wynn, 

306 S.E.2d 822, 824 (N.C. Ct. App. 1983)(non-union member who 

lost employment after refusing to cross picket line was entitled 
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to reduction of child support), aff'd, 313 S.E.2d 159 (N.C. 

1984); cf. Reep v. Reep, 565 So. 2d 814, 816 (Fla. Dist. Ct. App. 

1990)("participation in a legal strike, accompanied by diligent 

efforts to seek reemployment, cannot be considered a voluntary 

reduction of income and may form the basis for a petition for 

modification of alimony"). But see Horn v. Horn, 650 N.E.2d 

1103, 1107 (Ill. Ct. App. 1995)("the mere fact that an individual 

is on strike does not automatically require a trial court to 

reduce child support payments" because other factors, including 

obligor's good faith, may be considered). These decisions rest 

upon two principles: the right of the obligor parent to 

participate in a lawful strike under federal and state statutes, 

see, e.g., Sandra L., 480 N.Y.S.2d at 293 (citing 29 U.S.C § 163 

(1988)); Reep, 565 So. 2d at 816 n.4 (citing 29 U.S.C. § 163 and 

Fla. Stat. Ann. § 447.03 (West 1989)), and the good faith of the 

obligor parent in undertaking the strike for the long-term 

benefit of his continued employment. See, e.g., Cohn, 461 N.E.2d 

at 1030. 

 While fully in accord with other jurisdictions in 

recognizing the right of an individual to join a union and 

participate in a legal strike under the National Labor Relations 

Act (NLRA), see 29 U.S.C §§ 157, 163 (1988), we further recognize 

that the right-to-work doctrine of this Commonwealth empowers an 

individual to maintain his employment during the pendency of a 

strike. See Code §§ 40.1-53, -58. Moreover, we find that the 

preemption doctrine giving supremacy to the NLRA does not usurp 
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the power of a state to require a union member to fulfill legal 

obligations unrelated to his or her union's collective bargaining 

activities. The potential of being required to maintain child 

support payments without reduction during the pendency of a legal 

strike is no different from other personal economic 

considerations which an individual union member must take into 

account when determining whether to vote for or honor a strike. 

No deliberate action by the state interferes with the 

individual's right to vote for and participate in union activity 

and collective bargaining; thus, the preemption doctrine has no 

application to the issue of this case. See, e.g., Metropolitan 

Life Insurance Co. v. Massachusetts, 471 U.S. 724, 749 (1985) 

(preemption doctrine does not apply to state statutes and causes 

of actions which do not directly interfere with primary purpose 

of NLRA to promote fair and equitable resolution of collective 

bargaining disputes). Accordingly, we hold that the fact that 

Mr. Rawlings was exercising a protected right in voting for and 

honoring the decision to strike neither mandates nor prohibits a 

reduction in his child support obligation. 

 Similarly, the reliance of other jurisdictions on the "good 

faith" of the obligor parent in participating in the strike has 

no application in this Commonwealth. In Antonelli v. Antonelli, 

242 Va. 152, 409 S.E.2d 117 (1991), the Supreme Court held that 

"when the [obligor parent] . . . 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 
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the [obligor parent], and not upon the children." Id. at 156, 

409 S.E.2d at 119-20. Interpreting Antonelli, this Court has 

held "that 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). Accordingly, while we 

concur in the chancellor's finding that Mr. Rawlings' decision to 

vote for and participate in the strike was consistent with the 

duties and obligations of union membership and done with good 

faith belief that it was for his and his family's ultimate 

benefit, that fact standing alone is insufficient to warrant a 

reduction in the child support due under the December 8, 1993 

order.2

 Nonetheless, we hold that the chancellor did not err in 

 

 2We reject Mrs. Rawlings' assertion that the record 

establishes that Mr. Rawlings was motivated to vote for and 

support the strike in order to avoid the remaining months of his 

child support obligation prior to his son's emancipation. To the 

contrary, the record amply supports the chancellor's 

determination that this was not the case. Mr. Rawlings pursued 

temporary employment to supplement his strike pay, continued 

child support within his ability to pay, and pursued the 

appropriate legal course in seeking a reduction in his child 

support obligation. Although the record shows that because of 

his seniority and position with his employer, he stood to gain 

little direct economic benefit from a positive resolution to the 

strike, the intangible benefits accruing to all union members 

from a positive resolution of the strike and the previous 

benefits he had received as a result of union membership 

corroborate Mr. Rawlings' assertion that his decision to support 

the union was a matter of principle arising from his loyalty to 

the union made after reflecting on the strike's impact upon his 

financial situation. 
 -7- 

finding that under the facts of this case, Mr. Rawlings' decrease 

in income following the commencement of the union strike was a 

material change in circumstances invoking the court's continuing 

jurisdiction to modify its decree concerning his child support 

obligation. See Yohay v. Ryan, 4 Va. App. 559, 565-66, 359 

S.E.2d 320, 324 (1987). Although that reduction in income was 

the result of a good faith intentional act on the part of the 

obligor parent, we distinguish this case from Antonelli on the 

ground that at all times during and following the marriage the 

well-being of the economic relationship between Mr. Rawlings and 

his former spouse and child was inexorably entwined with the 

economic fortunes of the union. Thus, the strike itself, 

notwithstanding Mr. Rawlings' voluntary actions in voting for and 

honoring the strike, constituted the material change in 

circumstances warranting review of his child support obligations. 

 The mere fact of a material change in the obligor parent's 

income, however, does not necessarily warrant a reduction in the 

existing child support obligation. The chancellor is required to 

consider all the factors and guidelines enumerated in the Code 

for making such determinations and enter an award appropriate to 

circumstances as they exist at that time. Watkinson v. Henley, 

13 Va. App. 151, 156, 409 S.E.2d 470, 472-73 (1991); see also

Yohay, 4 Va. App. at 566, 359 S.E.2d at 324; Keyser v. Keyser, 2 

Va. App. 459, 461-62, 345 S.E.2d 12, 14 (1986). 

 Here, the amount of the reduction is supported by the 

record, unless, as Mrs. Rawlings asserts, the chancellor erred in 
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not imputing income to Mr. Rawlings based upon his pre-strike 

wages. Accordingly, we turn now to that issue. 

 While there is some suggestion in the record that Mr. 

Rawlings could have refused to honor the strike and returned to 

work at the wage he had been previously earning, it is clear that 

the standard of living of the family established during and 

maintained following the marriage until the strike flowed 

directly from the long-term benefits of his union membership. It 

is equally clear that the financial resources of the family were 

subject to fluctuation during a legal strike by the union. Thus, 

Mr. Rawlings was not "underemployed" during the pendency of this 

strike. Rather, the record shows that in addition to 

participating in union activities in order to receive strike pay, 

Mr. Rawlings also sought temporary employment appropriate to his 

skills and educational level in order to supplement his income 

and meet his support obligation. Nothing in the record suggests 

that equivalent employment to Mr. Rawlings' prior position and 

wage level was available in the locality or that he could have 

secured such a position elsewhere. 

 For these reasons, the decision of the circuit court is 

affirmed. 

 Affirmed.