                     COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia

DAVID WAYNE BROOKS
                                    MEMORANDUM OPINION * BY
v. Record No. 1928-96-2           JUDGE JAMES W. BENTON, JR.
                                        JUNE 3, 1997
DIVISION OF CHILD SUPPORT ENFORCEMENT,
  ex rel. CATHLEEN BROOKS


              FROM THE CIRCUIT COURT OF HENRICO COUNTY
                       George F. Tidey, Judge

          Jeffrey L. Galston (Hyder, Lowe & Galston, on
          brief), for appellant.
          (James S. Gilmore, III, Attorney General;
          William H. Hurd, Deputy Attorney General;
          Robert B. Cousins, Jr., Senior Assistant
          Attorney General; Craig M. Burshem, Regional
          Special Counsel, on brief), for appellee.



     David Wayne Brooks appeals from an order reducing his child

support obligation from $280 per month to $100 per month.     Brooks

argues that the trial judge erred in refusing to further reduce

his obligation to conform to Brooks' limited ability to pay.        The

Division of Child Support Enforcement argues that the trial judge

erred in ordering any reduction in Brooks' obligation.     For the

reasons that follow, we reverse the order.

                                  I.

     Brooks filed a motion for a reduction in his child support

obligation.   A judge of the juvenile and domestic relations

district court denied the motion.      After Brooks appealed that

order, a hearing was held in the circuit court.     The statement of
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
facts recites that the evidence proved that Brooks was convicted

of attempted capital murder and firearm charges and was

incarcerated at a Virginia prison.    Brooks was employed in prison

as head cook and was paid a wage of only 45 cents per hour.

     Brooks argued that he was unable to make his child support

payments because his monthly income was $54.   The Division of

Child Support Enforcement argued that Brooks was not entitled to

any reduction in his support obligation because his incarceration

was caused by his own voluntary actions.   The circuit court judge

entered an order stating the following:
          [Brooks] is presently under a court order to
          pay to the [Mother], as child support, the
          sum of $280.00 per month, and $40.00 per
          month towards the accrued arrearage. The
          present order shall be suspended effective
          May 1, 1996, whereby [Brooks] shall pay to
          the Mother, as current child support, the sum
          of $100.00 per month, payable on the first of
          each month. The guideline amount was
          computed by imputing minimum wage of $4.50
          per hour to [Brooks], or $775 per month and a
          monthly gross income of $1770 for the Mother.
           These figures result in a monthly child
          support obligation of $185.00, however the
          Court is deviating from the presumptive
          guideline amount and ordering only $100.00
          per month because [Brooks] is incarcerated.
          The $100 per month child support obligation
          shall remain in effect until thirty days
          after . . . Brooks['] release from
          incarceration, at that time the suspension
          shall be lifted and the prior order of
          $280.00 per month current child support and
          $40.00 per month towards the accumulated
          arrears will again be in effect.


This appeal arises from that order.




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                                  II.

     "The court may . . . revise and alter . . . [a child

support] decree . . . as the circumstances of the parents and the

benefit of the children may require." Code § 20-108.
             When invoking the divorce court's
          continuing jurisdiction under Code § 20-108,
          . . . a party seeking a change in
          court-ordered child support has the burden to
          prove by a preponderance of the evidence a
          material change in circumstances justifying
          modification of the support requirement. In
          discharging this burden, a father seeking a
          reduction in support payments must . . . show
          his claimed lack of ability to pay is not due
          to his own voluntary act or because of his
          neglect.


Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 118-19

(1991).

     The reason for Brooks' diminished ability to pay, his

incarceration, was a result of his own voluntary act of

committing the crime of attempted capital murder.   The Supreme

Court of Virginia has squarely addressed the principle

controlling the case of an obligor who seeks a reduction of child

support because of wrongful conduct.    See Edwards v. Lowry, 232

Va. 110, 348 S.E.2d 259 (1986).    Reviewing a trial judge's

decision to reduce the child support payments of a father who was

fired from his employment for stealing, the Supreme Court

observed that "the case now before us . . . involved an effort by

a former husband to shift to his wife or child the consequences

of his own wrongdoing."   Id. at 113, 348 S.E.2d at 261.    In

reversing the trial judge's decision to reduce the payments, the



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Supreme Court ruled that the father "failed to meet the burden

. . . of showing himself free of responsibility for his change in

circumstances, and was not entitled to a reduction in support

based upon the diminution of income caused by the loss of his

job."     Id.   Certainly, Brooks stands in no better position when

the diminution of his income was caused by his incarceration for

a voluntary criminal act.

        The record provides no other basis upon which the trial

judge could have reduced Brooks' child support obligation.     We

hold, therefore, that the trial judge erred in using Brooks'

incarceration as a ground for reducing his child support

obligation.     Accordingly, we reverse the order and remand to the

trial judge to reinstate the original support order.
                                            Reversed and remanded.




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