Record No. 0361-94-1Court of Appeals of Virginia. Argued at Norfolk, Virginia.
Decided: February 21, 1995
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY Russell M. Carneal, Judge Designate
Roy H. Lasris (Buxton, Lasris Vannan, on brief), for appellant.
I. Leake Wornom, Jr. (Patten, Wornom Watkins, on brief), for appellee.
Present: Judges Baker, Willis and Elder
MEMORANDUM OPINION[*]
JUDGE JOSEPH E. BAKER.
Steven J. Becker (husband) contends that the Circuit Court for the City of Williamsburg and County of James City (trial court) erred when it denied his petition requesting that the trial court order his former wife, Pamela Wantanen Becker (wife), to contribute to the support of the seventeen-year-old child born of the marriage between the parties and presently in husband’s custody. We disagree and affirm the judgment of the trial court.
The parties married on August 11, 1972 and divorced on January 6, 1987. Initially, wife was awarded custody of the child; however, on May 10, 1989, custody was transferred to husband. After a hearing, the trial court, on October 28, 1989, denied husband’s request that wife be required to contribute to[*] the child’s support. The order contained the court’s findings of the incomes of the parties as follows:
The order also noted that husband’s present wife had monthly income of $1,592, which the trial court stated was not considered when its award was made. No appeal was taken from that order.
On May 24, 1993, husband moved the trial court to reinstate the matter on the court’s docket for determination of child support to be paid by wife for the child, born November 29, 1977.
In the order denying husband’s motion, the trial court made the following findings of fact:
[O]n August 31, 1989, this court denied Dr. Becker’s petition for child support.At that hearing, the Court considered the guidelines set forth in the statute and all factors set forth in Sections 20-107.2, 20-108.1 and 20-108.2 and accordingly did not follow the guidelines set forth in the Code due to the fact that the Defendant resided in Virginia Beach and the Plaintiff resided in James City County and the child’s continuing educational requirements through Rodef Sholom Temple and his present school schedule while living with his father limited visitation to basically one day every other week for a short period of time and in order to exercise the visitation the Plaintiff must drive from her home in James City County to Virginia Beach some 40 miles distance each way and at expense to her.
* * * * * * *
c. At the time of the 1989 hearing, Mrs. Becker’s monthly income was approximately $1,600.00. Dr. Becker’s monthly income from his practice of dentistry was approximately $4,350.00.
d. At the time of the hearing on the present petition, Mrs. Becker’s monthly income had increased to approximately $2,000.00 per month and Dr. Becker’s monthly income from his dental practice had increased to approximately $7,200.00.
e. By virtue of a separation agreement which was incorporated into the final decree of divorce, Dr. Becker was ordered to pay Mrs. Becker $800.00 per month as spousal support.
f. When the last hearing was held, Dr. Becker had one child by his current wife. At the time of this hearing, Dr. Becker has two children by his current wife.
g. Child support payable by Mrs. Becker based on the appropriate guidelines would be $296.00 per month as per the worksheet attached to this order.
In order to invoke the court’s continuing jurisdiction to modify its decree, the party seeking a change has the burden of proving, by a preponderance of the evidence, a material change in circumstances justifying modification of the decree Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 118-119 (1991); Edwards v. Lowry, 232 Va. 110, 112, 348 S.E.2d 259, 261 (1986). The moving party in a petition for modification of support is required to prove both a material change in circumstances and that such change justifies an alteration in the amount of support. Yohay v. Ryan, 4 Va. App. 559, 566, 359 S.E.2d 320, 324 (1987). In considering such petition, the trial court must assess whether the request, based upon a change of circumstances, is justified in light of the overall circumstances of both parties and the impact on the needs of the child. Id.
It is clear that since the adoption of the guidelines contained in Code Sec. 20-108.2, whether initially or at a modification hearing, the starting point is to compute the presumptive guidelines amount. Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473 (1991). Here, that sum was determined. After making that determination, if the trial court determines that the guideline amount should not apply, the deviation from the presumptive support obligation must be supported by written findings giving the reasons why application of the guidelines would be unjust or inappropriate Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991); Code Sec. 20-108.2(A). In its order, the trial court clearly stated its reason for not applying the guidelines in this case:
The court finds and does not follow the guidelines in that Petitioner has not demonstrated a sufficient change of circumstances to warrant modification of the previous denial to him of child support. The income of his present wife was not considered by the court in 1989 nor was the income of his present wife considered by the court in this hearing. The fact of the birth of an additional child, coupled with his substantially increased income, and the continued and increased disparity between Dr. Becker’s income and that of his former wife, causes this court to conclude that Dr. Becker has not demonstrated a sufficient change of circumstances to warrant the modification of support. The other factors the court deems irrelevant.
We have reviewed the record in this case and find that the trial court considered all the code provisions required and that there is evidence to support its finding. We cannot say that the trial court abused its discretion or that its decision is plainly wrong.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
Elder, J., dissenting.
I respectfully dissent because I believe that the trial court abused its discretion in denying husband’s petition. The trial court erred in presenting invalid explanations for deviating from the presumptive child support guidelines contained in Code Sec. 20-108.2.
The majority correctly recognizes that a trial court must compute the amount of child support pursuant to Code Sec. 20-108.2. Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473 (1991). In this case the trial court performed this computation but then deviated from the guidelines based on reasons set forth in its written findings. However, the trial court erred in basing its deviation on inappropriate criteria and undeveloped factual conclusions.
As this Court has stated, “a trial court must make written findings of enough detail and exactness to allow for effective appellate review of the findings.” Richardson v. Richardson, 12 Va. App. 18, 22, 401 S.E.2d 894, 897 (1991) (“findings must identify the factors that justified deviation . . . and explain why and to what extent the factors justified the adjustment.”) (emphasis added). We have also held that “the trial court may deviate from the presumptive amount if such deviation is justified by factors recognized in Code Sections 20-108.1 and 20-107.2.” Scott v. Scott, 12 Va. App. 1245, 1248, 408 S.E.2d 579, 581 (1991).
The record reveals two reasons given by the trial court for deviating from the guidelines’ presumptive amount: (1) the respective incomes of the parties; and (2) the birth of an additional child from husband’s second marriage. First, the trial court erroneously used income disparity as a justification for deviation. The trial court failed to recognize that the guidelines themselves are based on a consideration of the parties’ respective gross incomes See Code Sec. 20-108.2; Richardson, 12 Va. App. at 21, 401 S.E.2d at 896. Second, Code Sec. 20-108.1(B) (1) states that “[a]ctual monetary support for other children” may be a factor affecting a parent’s ability to pay. While the trial court recognized there was “the birth of an additional child” for which husband was financially responsible, it failed to explain how this factor specifically affected husband’s request to receive child support from wife.
For the foregoing reasons, I would reverse and remand to the trial court for a reconsideration of the applicability of the presumptive child support guidelines and a reconsideration of whether there has been a change in circumstances warranting a modification of child support.