                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia


COMMONWEALTH OF VIRGINIA, VIRGINIA
 DEPARTMENT OF SOCIAL SERVICES,
 DIVISION OF CHILD SUPPORT ENFORCEMENT,
 ex rel., PHYLLIS S. EWING                  OPINION BY
                                    JUDGE JOHANNA L. FITZPATRICK
v.      Record No. 1480-95-2               MAY 21, 1996

FRANKLIN R. J. EWING, III

         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                  Melvin R. Hughes, Jr., Judge

          Keith H. Warren, Special Counsel, Virginia
          Department of Social Services, Division of
          Child Support Enforcement (Betsy S. Elliott,
          Senior Special Counsel, Virginia Department
          of Social Services, Division of Child Support
          Enforcement; James S. Gilmore, III, Attorney
          General; William H. Hurd, Deputy Attorney
          General; Siran S. Faulders, Senior Assistant
          Attorney General; Craig M. Burshem, Regional
          Special Counsel, on briefs), for appellant
          Division of Child Support Enforcement.

          Jacqueline G. Epps (Morris and Morris, on
          brief), for appellant Phyllis S. Ewing on
          custody issue.

          Deanna D. Cook (Bremner & Janus, on brief),
          for appellee.



     Phyllis S. Ewing and the Virginia Department of Social

Services (collectively referred to as mother) appeal the trial

court's order denying mother an award of child support.   She

argues that the trial court erred in eliminating the child

support obligation of Franklin R. J. Ewing, III (father) after

determining that he had become voluntarily unemployed.    Father

appeals the trial court's continuation of mother's sole legal
custody of the parties' child.    For the reasons that follow, we

reverse the trial court's elimination of father's child support

obligation and affirm its resolution of the child custody issue. 1
                              BACKGROUND

        The parties were married on September 7, 1991 and separated

on February 12, 1994.    They have one child, born December 30,

1992.

        Father is a licensed pharmacist, whose 1991 income was

approximately $79,000.    In 1992, father entered medical school at

the Medical College of Virginia, but continued to work part time

as a pharmacist, earning approximately $45,000 in 1993.    After

the parties separated, mother filed for an award of child support

in the Juvenile and Domestic Relations District Court for the

City of Richmond.    On March 15, 1994, the court entered an agreed

order that required father to pay $400 per month in child

support.    At the time of the entry of the support order, father

was in medical school but continued to work as a pharmacist.

Four months after the entry of the order, in July 1994, father

quit his job as a pharmacist.    He testified that, as a third-year

medical student, he would be unable to work part time and attend

school full time because of the demands of his class schedule.

He supports himself with student loans and loans from his

parents.    Mother works as an administrative assistant at a law

    1
     We deny father's motion to dismiss because the record fails to
show that the notice of appeal was not timely filed.




                                   2
firm, earning a monthly salary of $1875.   She has a $362 monthly

shortfall in her budget.

     Mother was awarded sole legal custody of the parties' child,

with father having visitation every other weekend and a midweek

visit during those weeks with no scheduled weekend visitation.

Father does not speak to mother about matters relating to the

child, and he and mother have not directly communicated with one

another since their separation.   Father also does not speak to

mother's sister, who serves as a neutral party for visitation

purposes.   Written notes are the only form of communication

between the parties.
     After a hearing on April 4, 1995, the trial court:    (1)

completely eliminated father's monthly child support obligation,

and (2) denied father's request for joint legal custody.   The

trial court determined that, although father "is voluntarily

unemployed now, . . . he is pursuing education that will

hopefully enhance his earnings potential in the not too distant

future and better secure his financial position for his good and

that of his child."    After calculating father's presumptive

amount of child support to be zero, the trial judge refused to

impute income to father and stated that he could not "find that

the amount is 'unjust or inappropriate' in order to consider an

alternate child support obligation due from [father]."    In

denying father's request for joint legal custody, the trial judge

found that "communication is not occurring between the parents.




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Communication and cooperation for the sake of the child has to be

present to make joint custody work."    (Emphasis added).
                             CHILD SUPPORT

        Mother argues that the trial court erred in eliminating

father's child support obligation.     The court specifically found

that father became voluntarily unemployed when he left his job as

a pharmacist to attend medical school full time.      Mother contends

that, upon making this finding, the court was required to deny

father's motion for a reduction in child support. 2    We agree.

        "Once a child support award has been entered, only a showing

of a material change in circumstances will justify modification

of the support award.    The moving party has the burden of proving

a material change by a preponderance of the evidence."      Crabtree

v. Crabtree, 17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993).

"[A] party seeking a reduction in support payments has additional

burdens:    '[H]e must make a full and clear disclosure relating to

his ability to pay.     He must also show that his lack of ability
to pay is not due to his own voluntary act or because of his

neglect.'"     Edwards v. Lowry, 232 Va. 110, 112-13, 348 S.E.2d

259, 261 (1986) (emphasis added) (quoting Hammers v. Hammers, 216

Va. 30, 31-32, 216 S.E.2d 20, 21 (1975)).    Thus, in order to

prove a material change in circumstances that justifies a
    2
     Mother does not dispute the trial court's finding that father
suffered a material change in circumstances. She argues that
father failed to meet the additional burden of proving that his
material change in circumstances was not the result of his own
voluntary act.



                                   4
reduction in support, a parent "must establish that he is not

'voluntarily unemployed or voluntarily under employed.'"

Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119

(1991) (quoting Code § 20-108.1(B)(3)).

     In Antonelli, the Supreme Court of Virginia denied the

father's request for a reduction in his child support obligation

because he voluntarily quit his job as a salaried stockbroker to

become a commissioned broker.   242 Va. at 156, 409 S.E.2d at 119.

The Court held that, when the father "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

father, and not upon the children."       Id. at 156, 409 S.E.2d at

119-20.   Thus, "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).

     In the instant case, the trial court specifically found that

father became "voluntarily unemployed" when he quit his job as a

pharmacist to attend medical school full time.      This finding is

clearly supported by the record.       When father left his job as a

pharmacist without being discharged, he voluntarily terminated

his employment to the detriment of his support obligation to his

child.    Although father's voluntary unemployment constituted a

change in circumstances, he failed to prove that this change in



                                   5
circumstances was not the result of his "voluntary act."

Additionally, father presented no change in circumstances that

might justify a reduction in support other than his unilateral

decision to quit his employment four months after the initial

amount of support was ordered.   Thus, under the rationale of

Edwards and Antonelli, the trial court should have denied

father's request for a reduction in child support.

       Father argues that the record fails to show that he pursued

his medical degree in bad faith or that he quit his pharmacist

job to avoid his support obligation.   Some jurisdictions use a

good-faith analysis in determining whether a parent is entitled

to a modification of child support when he or she leaves
                                            3
employment to become a full-time student.       Although no Virginia
   3
     In student obligor cases, other jurisdictions have applied a
good faith analysis. See, e.g., In re Marriage of Seanor, 876
P.2d 44 (Colo. Ct. App. 1993), aff'd in part, rev'd in part, 891
P.2d 1002 (Colo. 1995); Sabatka v. Sabatka, 511 N.W.2d 107 (Neb.
1994); Ciostek v. Ciostek, 588 N.Y.S.2d 690 (N.Y. App. Div. 1992).
 These courts hold that "[a] parent responsible for the support of
the children may, where necessary, forego employment and pursue
further education that will enhance his earning capacity and
thereby ultimately benefit the children. A parent may not,
however, unilaterally forego employment in an attempt to evade
support responsibilities." Ciostek, 588 N.Y.S.2d at 691 (citation
omitted). However, some courts using a good faith analysis in
student obligor cases have placed limitations on good faith. For
example, although a parent is acting in good faith by pursuing
further education, this conduct cannot be "intended to deprive a
child of support and [cannot] unreasonably reduce the support
available to a child." Seanor, 876 P.2d at 48 (emphasis added).
Additionally, other courts have recognized that good faith is only
one factor to be considered in determining whether a student
obligor is entitled to a modification of support and that "the
paramount concern and question in determining child support . . .
is the best interests of the child." Sabatka, 511 N.W.2d at 111-
13.




                                  6
case has addressed this issue in the context of a student

obligor, Virginia courts have held that a parent's voluntary

unemployment, "even if done in good faith," does not justify

reducing his or her obligation to pay child support.   Hamel, 18

Va. App. at 13, 441 S.E.2d at 222.   See also Antonelli, 242 Va.

at 155-56, 409 S.E.2d at 119.   Additionally, "[i]n setting an

award of child support, the 'primary issue before a trial judge

is the welfare and best interests of the child, not the

convenience or personal preference of a parent.'"   Brody v.

Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993) (quoting

Hur v. Virginia Dep't of Social Servs. Div. of Child Support

Enforcement ex rel. Klopp, 13 Va. App. 54, 60, 409 S.E.2d 454,

458 (1991)).
          While a family is intact, the parents' choice
          of occupations and the family's standard of
          living are left to the parents' discretion as
          long as the children's basic needs are met.
          Once the parents are separated, however, "the
          law of this Commonwealth allows the courts to
          provide for the child's basic needs and,
          within reason, some measure of assumed
          parental generosity." After divorce,
          although a parent may voluntarily terminate
          his or her employment, he or she may not do
          so to the detriment of support obligations to
          the children.


Brody, 16 Va. App. at 651, 432 S.E.2d at 22 (emphasis added)

(quoting Conway v. Conway, 10 Va. App. 653, 658, 395 S.E.2d 464,

467 (1990)).

     Father's voluntary termination of his substantial current

income to secure a possible future reward overlooks the current




                                 7
needs of the child and gives priority to a parent's ambition.

Additionally, in this case, father presented no evidence

regarding how his medical school education would benefit his

child or when the hoped for financial benefit would be realized.

Mother's evidence established that she had a monthly shortfall

in her budget of $362 and needed the court-ordered child support

to adequately care for the child.    The present needs of the child

should not be discounted, awaiting a possible future windfall.

Thus, we hold that a parent's voluntary termination of income in

order to pursue a possible future gain in income is insufficient

to support a modification of child support, even if done in good

faith.
                          CHILD CUSTODY

     Father contends that the trial court erred in denying his

request for joint legal custody of the parties' child and in

awarding sole legal custody to mother.
               In matters of custody . . . the court's
          paramount concern is always the best
          interests of the child. . . . In matters of a
          child's welfare, trial courts are vested with
          broad discretion in making the decisions
          necessary to guard and to foster a child's
          best interests. A trial court's
          determination of matters within its
          discretion is reversible on appeal only for
          an abuse of that discretion, and a trial
          court's decision will not be set aside unless
          plainly wrong or without evidence to support
          it.


Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795

(1990) (citations omitted).   In this case, the trial court did



                                 8
not abuse its discretion in denying father's request for joint

legal custody.   The evidence established the parties' lack of

communication concerning the child.   Mother's sister testified

that she served as a neutral third party for delivery of the

child for father's visitation and that communication with father

was nonexistent during the exchanges.   Under these facts, the

trial court's determination that joint legal custody was not in

the child's best interests was not plainly wrong and was

supported by the evidence.
     Accordingly, the decision of the trial court is affirmed as

to the child custody issue and reversed as to the denial of child

support.
                                         Affirmed in part and
                                         reversed in part.




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