COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Annunziata

NISHAT I. KARIMI

MEMORANDUM OPINION BY

v. Record No. 1416-97-3 JUDGE SAM W. COLEMAN III

JUNE 16, 1998

IFTEKHAR A. KARIMI

FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO

Rudolph Bumgardner, III, Judge

(Jeffrey A. Ward; Franklin, Franklin,

Denney & Ward, on brief), for appellant.

Appellant submitting on brief.

(Bruce R. Williamson, Jr.; Williamson &

Toscano, on brief), for appellee. Appellee

submitting on brief.

Nishat I. Karimi (mother) appeals the trial court's order

terminating Iftekhar Karimi's (father's) obligation to pay child

support, which termination the court based upon the parties and

the child having relocated from Virginia to India. Mother

contends the trial court abused its discretion in abating the

original child support order where no other court of competent

jurisdiction had assumed jurisdiction or established support for

the child. For the reasons that follow, we reverse the trial

court's abatement order and remand for further proceedings.

BACKGROUND

Mother and father were lawfully married in Indiana in 1988.

Mother moved to India in 1989 where she gave birth to the

couple's only child. Father remained in the United States and

eventually moved to Waynesboro to work as an engineer.

Mother came to Virginia in 1995 and commenced an action for

child support in the Juvenile and Domestic Relations District

Court for the City of Waynesboro. She resided in Virginia for

several months while the action was pending. The parties

executed an agreement wherein father agreed to pay child support

in the amount of $500 per month, which agreement was incorporated

into a July 1995 order of the juvenile and domestic relations

court. The mother eventually returned to India, where the child

has always resided.

In December 1995, father filed a motion to modify the

support order on the ground that the cost of living in India was

substantially less than in Virginia. The juvenile and domestic

relations court denied the motion. While his appeal from the

denial of the motion to modify was pending before the circuit

court, father lost his job and moved to India. Subsequently, he

filed a motion to abate the child support order on the ground

that both parties and the child no longer resided in Virginia.

In support of his motion, he testified that he had initiated an

action for custody of the child in an Indian court and that, as

the noncustodial parent, he is precluded from raising child

support issues under Indian law. The circuit court granted the

father's motion to abate the child support order, holding that it

was "no longer appropriate for [the court] to order the payment

of child support" in light of the parties' circumstances.

ANALYSIS

It is well established in Virginia that a trial court may

modify or terminate child support "when the petitioning party has

proven . . . a material change in circumstances." Kaplan v.

Kaplan, 21 Va. App. 542, 547, 466 S.E.2d 111, 113 (1996). See

Code 20-108. "Once a party has demonstrated a material change,

the court must determine whether that change justifies a

modification [or termination of] the support award by considering

the present circumstances of the parties and the benefit of the

children." Cooke v. Cooke, 23 Va. App. 60, 64, 474 S.E.2d 159,

160-61 (1996) (emphasis added) (citation omitted). The decision

whether to modify or terminate child support is a matter of

judicial discretion which the courts must exercise with the best

interests of the child as its paramount consideration. See

Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 474

(1991); Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345

S.E.2d 10, 11 (1986).

The trial court's abatement of the child support order was

an abuse of discretion. While the parents and child were

residing in Virginia, the trial court had determined the father's

obligation to support his child and, based upon the parents'

agreement which ostensibly indicated the father's ability to

provide support and the child's needs, set the amount of the

support obligation at $500 per month. Although the parents and

child no longer resided in Virginia when the change in condition

hearing was held, the trial court had continuing jurisdiction to

enforce and modify its original child support order. See Code

20-88.35(6); Commonwealth ex rel. Kenitzer v. Richter, 23 Va.

App. 186, 193, 475 S.E.2d 817, 820 (1996). Nothing in Code

20-88.39 of the Uniform Interstate Family Support Act, which

prescribes when Virginia courts may exercise continuing,

exclusive jurisdiction, vitiates a Virginia court's continuing

jurisdiction to modify its own support order under the

circumstances in this case. See Code 20-108; cf. Richter, 23

Va. App. at 192 n.1, 475 S.E.2d at 820 n.1. Code 20-88.39(B)

provides only that a Virginia court "may not exercise its

continuing jurisdiction to modify [a valid child support] order

if the order has been modified by a tribunal of another state"

pursuant to a law substantially similar to this chapter.

(Emphasis added). The parents and child now live in a foreign

country, not in another state. However, because the original

support order has not been modified or supplanted by proceedings

in another court of competent jurisdiction, the trial court

retained its continuing jurisdiction to modify the order even

though the parents and child no longer reside in Virginia. Cf.

Richter, 23 Va. App. at 193, 475 S.E.2d at 820 ("Virginia

continues to have the right to enforce its own decrees even if

all parties are no longer residents.").

We reject the father's argument that the trial court's

decision to abate the child support order should be affirmed

because under Indian law only the custodial parent, the mother in

this case, can initiate child support proceedings. The father

argues that the case should be controlled by Indian law and

economic standards since all parties reside there. He maintains

that unless the Virginia support order was abated, the mother has

no incentive to initiate support proceedings in India because she

can reap greater financial gain by not invoking the jurisdiction

of the Indian courts and continuing to enforce the Virginia

support order. By abating the Virginia support order, the trial

court will compel the mother, so the father argues, to initiate

support proceedings in India.

However, we find the trial court's abatement of the child

support order failed to consider the father's continuing

obligation to support his child and failed to consider the

child's best interest and need for support. By abating the

support order, the trial court placed the custodial parent, who

had obtained an enforceable support order in the jurisdiction of

the father's residence, in the position of having no enforceable

support order. The trial court could have exercised its

continuing original jurisdiction, on motion of the father or on

its own motion pursuant to Code 20-108, to modify father's

support obligations to reflect the lower cost of living in India

or to take into account the father's loss of employment in

Virginia. Where the trial court could have reduced the father's

support obligation and ensured continued support for the child,

the court abused its discretion by terminating support for the

child merely because the parents and child no longer resided in

Virginia. Accordingly, we reverse the trial court's order

terminating father's obligation to pay child support and remand

the case for further proceedings in accordance with this opinion.

Reversed and remanded.

	ROMINGER LEGAL
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