                       COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Overton
Argued at Alexandria, Virginia


HECTOR MAYA, JR.

v.             Record No. 0429-95-4        MEMORANDUM OPINION * BY
                                        JUDGE JERE M. H. WILLIS, JR.
SUSAN E. MAYA                                 JANUARY 11, 1996


                 FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                         James H. Chamblin, Judge
               Cheryl K. Brunner (Bradley T. White; Brunner &
               White, on briefs), for appellant.

               Cindy Leigh Decker (Walter C. Jacob, P.C., on
               brief), for appellee.



       On appeal from the trial court's denial of his motion to

reduce child support, Hector Maya, Jr. contends the trial court

erred in finding him voluntarily underemployed and in imputing

income to him.      We find no error and affirm the judgment of the

trial court.

       Mr. and Ms. Maya were divorced on December 8, 1993.      Ms.

Maya was awarded sole legal and physical custody of their minor

son.       Mr. Maya was ordered to pay $425 per month child support

and to maintain health insurance on their son.

       At the time of the divorce decree, Mr. Maya earned $21,700 a

year as an accounts billing clerk with ICO Kaiser International.

Ms. Maya worked for Vrendenburg, earning $20,000.      On March 1,

1994, Mr. Maya was laid off from Kaiser due to company
       *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
downsizing.   On March 28, 1994, he was arrested and charged with

forgery.   On May 28, 1994, he was convicted and sentenced to

three years probation.   In June 1994, he began working as a

waiter, earning $2.13 per hour.

     On August 2, 1994, Ms. Maya petitioned for a rule to show

cause, alleging that Mr. Maya had failed to pay child support

from March 1994, until August 1994, and that he had not provided

health insurance for their son.   On August 31, 1994, Mr. Maya was

found in contempt of the December 8, 1993 decree.   He was ordered

to keep his child support current and to pay an additional $74.82

a month to Ms. Maya for their son's health insurance.
     On October 31, 1994, Ms. Maya filed a second petition for a

rule to show cause, alleging that Mr. Maya had failed to comply

with either the December 8, 1993 decree or the August 31, 1994

order.    Mr. Maya failed to appear and a capias was issued for his

arrest.    A condition of his bail bond required that he post

$4,316.36 to be held for Ms. Maya's benefit.   After his arrest,

he posted the required bond.

     On November 18, 1994, Mr. Maya moved to reduce his support

obligation because of a material change in circumstances.    He

alleged that he had been laid off from his job in March 1994, had

been arrested and incarcerated from March 27 to May 26, 1994, had

been convicted of forgery, and was employed as a waiter at

greatly reduced earnings.   On December 28, 1994, Ms. Maya filed a

third petition for a rule to show cause.   After a hearing, the




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trial court issued a letter opinion denying Mr. Maya's motion to

reduce child support.   The court found a material change in the

parties' financial circumstances, that Mr. Maya's income had

greatly decreased and Ms. Maya's income had increased by $5,000.

 However, it also found that Mr. Maya was voluntarily

underemployed.   It found that Mr. Maya's forgery conviction was

due to his own wrongdoing, and that his inability to obtain a job

with the same earning capacity as his former job was partially

due to that conviction and partially due to his failure to make a

diligent search for new employment.    Based on those findings, the

trial court found that Mr. Maya's decreased earning capacity was

due to his own voluntary act or neglect.
     "When invoking the divorce court's continuing jurisdiction

under Code § 20-108, following entry of a final decree of

divorce, 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."   Antonelli v. Antonelli, 242 Va. 152, 154,

409 S.E.2d 117, 118-19 (1991) (citation omitted).    "A material

change in circumstances, standing alone, does not provide a basis

for the trial court to modify its support decree."    Yohay v.

Ryan, 4 Va. App. 559, 566, 359 S.E.2d 320, 324 (1987).     The party

"seeking a reduction in support payments must also make a full

and clear disclosure about his ability to pay, and he must show

his claimed lack of ability to pay is not due to his own




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voluntary act or because of his neglect."     Antonelli at 154, 409

S.E.2d at 119.

       Mr. Maya first contends that the trial court erred in

finding him voluntarily underemployed.    He argues that he works

fifty hours a week to earn money to meet his child support

obligation, but is unable to do so because of his low wages, not

because of neglect.   He argues that his inability to obtain a

more lucrative job results not from his conviction, but from a

bad job market.
       We find no error in the trial court's finding that Mr. Maya

is voluntarily underemployed.   He did not prove that his reduced

earning capacity was not due to his own voluntary act or neglect.

 Id.   Although he was laid off through no fault of his own, his

forgery conviction is the result of his own wrongdoing and

greatly diminishes his chances of obtaining a position of trust.

Mr. Maya testified that he had not looked for a higher paying

job since he began working as a waiter in June 1994, and offered

no evidence of a bad job market.

       Mr. Maya next contends that the trial court erred in

imputing income to him pursuant to Code § 20-108.1(B)(3).      He

first argues that because § 20-108.2 establishes a presumptive

guideline amount for child support, Ms. Maya has the burden of

establishing why a deviation from that amount is appropriate.

The statute imposes no such burden.     "Where a parent is

'voluntarily unemployed or voluntarily underemployed' a trial



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court may impute income based on evidence of recent past

earnings."    Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20,

22 (1993) (citation omitted).

     Mr. Maya next argues that income should not be imputed to

him because he is barred by legal impossibility from pursuing his

former employment.    See L.C.S. v. A.C.S., 19 Va. App. 709, 719,

453 S.E.2d 580, 585 (1995).    Mr. Maya argues that the terms and

conditions of his probation bar him from working in accounts

payable and from handling checks.       However, the record supports

the trial court's finding that Mr. Maya has made no reasonable

effort to secure employment utilizing his professional

capabilities and producing an income comparable to what he earned

before his conviction.
     Third, Mr. Maya argues that imputing income to him violates

the double jeopardy clause of the Fifth Amendment by imposing

multiple punishments for his forgery offense.       See U.S. v.

Halper, 490 U.S. 435 (1989).    We reject this argument.     Mr.

Maya's child support obligation is not a civil sanction, but is a

civil liability based on his responsibility as a parent.

     The trial court found Mr. Maya voluntarily underemployed not

because he was laid off from Kaiser, but because he has not

sought a better paying job since the time of his conviction.

"[A] parent may not 'purposefully choose to pursue a low paying

career which operates to the detriment of [the parent's]

children.'"    Hur v. Va. Dep't of Social Services, 13 Va. App. 54,




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60, 409 S.E.2d 454, 458 (1991) (citations omitted).   Mr. Maya

presented no evidence of his career plans or that he was seeking

employment with a greater earning capacity.

     Because the court found Mr. Maya voluntarily underemployed,

it acted properly in imputing income to him.   The trial court

first computed the presumptive guideline amount of support using

Mr. Maya's present monthly earnings and then computed it using

his former monthly earnings.   The amount of support actually

awarded, $425, is between those two figures.   See Barnhill v.

Brooks, 15 Va. App. 696, 702, 427 S.E.2d 209, 213-14 (1993).

     Although Mr. Maya showed a material change in circumstances

justifying a review of the previous award, we find no abuse of

discretion in the trial court's holding that Mr. Maya failed to

meet his burden of proving that the material change in

circumstances warranted a reduction in his child support

obligation.

     We affirm the judgment of the trial court.
                                                   Affirmed.




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