                     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.
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.
                                  -2-
                                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
                               -3-
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.


                                  -4-
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
                               -5-
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.
                               -6-
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
                               -7-
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.




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