Is a private school application a sufficient material change in circumstances in Virginia to modify a child support order?
Not in In re Marcel Minor, CL10-744, where the Richmond City Circuit Court judge held that the mother filing for the support change had not meet her burden of proof in establishing a material change in circumstances.
According to Virginia law, a parent can move for a modification of a child support order; however, as the Virginia Court of Appeals affirmed in Crabtree v. Crabtree, 17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993), “Once a child support order 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.” This is the same standard for changes in child custody and visitation. Thus, although the Virginia court has continuing jurisdiction over child custody, child visitation, and child support, the court will not allow a party to retry essentially the same case again and again, the party must first show that there has been a material change in circumstances justifying a change in custody, visitation, or support. Both the moving party and the defending party must be prepared to address this threshold determination in any hearing on a motion to modify an existing order.
In this situation, the mother argued that her son’s application to private school qualified as a material change in circumstances warranting an increase in the father’s child support obligation. As the Richmond City Circuit Court judge recognized, a parent’s decision to enroll a child in private school should not be considered a cost in fixing child support obligations. See Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269 (1994) . However, the judge did observe that an obligation to pay for private school could arise if the party demonstrated a substantial need of the child to attend private school and the parent has the ability to pay. See Joynes v. Payne, 36 Va. App. 401, 551 S.E.2d 10 (2001). See also Ragsdale v. Ragsdale, 38 Va. App. 283, 516 S.E.2d 698 (1999). Moreover, the Court noted that under the deviation standards in Va. Code §20-108.1, the expenses for private school enrollment could become a factor in determining whether to adjust the presumptive child support figure
Here, the Court found that the mother’s evidence did not meet the burden of proof by a preponderance of the evidence. Because the application for private school was merely pending and the expenses listed only estimates of the future arrangement, she had not shown a material change in circumstances to warrant a child support modification order. Therefore, the Court held that the prior order and support level would remain the same.
You should consult with your Virginia family law lawyer to determine if a material change in circumstances justifies a change in child custody, child visitation, or child support in your case.