Record Nos. 0501-91-3 1325-91-3Court of Appeals of Virginia. Salem.
January 5, 1993
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY DONALD R. MULLINS, JUDGE
Robert M. Galumbeck (Dudley, Galumbeck Simmons, on briefs), for appellant.
Frederick W. Harman for appellee.
Present: Chief Judge Koontz, Judges Moon and Bray
Argued at Salem, Virginia
MEMORANDUM OPINION[*]
CHIEF JUDGE LAWRENCE L. KOONTZ, JR.
Ronnie Trenton Mitchell (husband) appeals from the circuit court’s order requiring that he pay child support to Wilma Jean Mitchell (wife) in the amount of $400 per month for their minor child. On appeal, husband contends that the child support award must be reversed because the court failed to apply the presumptive child support guidelines in determining support. We agree.
The parties are familiar with the facts of this case and, therefore, we restate only those facts necessary to explain our holding. On July 21, 1989, the parties were divorced by decreea vinculo matrimonii and husband was ordered to pay $450 per month to wife as child support. Wife subsequently moved for an increase in child support. Following a hearing on August 27, 1990, the court awarded an increase in child support and ordered husband to pay wife $550. Upon husband’s motion for a reduction in support, a hearing
Page 2
was held on May 31, 1991. Based on evidence presented at the hearing, the court on June 14, 1991 first found that a material change in circumstances existed and then ordered a temporary reduction in child support to $400 per month. Husband challenges the court’s order on the ground that this amount does not conform with the presumptive amount in the statutory guidelines. Both parties agree that the amount awarded in the June 14, 1991 order deviates from the presumptive amount in the guidelines.
The procedure to be followed in computing child support was explained in Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991):
The starting point for a trial court in determining the monthly child support obligation of a party is the amount as computed by the schedule found in Code § 20-108.2(B). This amount is determined according to a schedule that varies according to the combined gross income of the parties and the number of children involved. No additions or subtractions from the gross income, as defined in Code § 20-108.2(C), even if otherwise valid considerations, may be made before this figure is determined. However, after determining the presumptive amount of support according to the schedule, the trial court may adjust the amount based on the factors found in Code §§ 20-107.2 and 20-108.1. Deviations from the presumptive support obligation must be supported by written findings which state why the application of the guidelines in the particular case would be unjust or inappropriate. If the applicability of the factors is supported by the evidence and the trial judge has not otherwise abused his or her discretion, the deviation from the presumptive support obligation will be upheld on appeal.
We have held that the trial court must follow the procedures for calculating child support, as explained in Richardson, both in making an initial determination of support and in reviewing a
Page 3
support order pursuant to a request for modification.Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473
(1991). Therefore, even if the court’s prior support award was properly calculated pursuant to the requirements set forth inRichardson, the court after determining that a material change in circumstances had been established was still required to use the guidelines as the starting point in reviewing husband’s support obligation pursuant to husband’s motion for reduction.
The record shows that the trial court failed to first determine the presumptive amount of child support under the guidelines; in fact, the court made no mention of the child support guidelines in awarding a reduction of child support in its June 14, 1991 order. The court also failed to articulate its reasons for deviating from the presumptive amount, as calculated under the guidelines. Accordingly, this matter is reversed and remanded.
In remanding this matter, we find it necessary to address husband’s contention that he is entitled to a credit against future support payments for any excess amount paid pursuant to the reversed support award. We hold that if the new amount of support calculated by the trial court on remand is less than the amount awarded under the prior order, which we have reversed, husband is entitled to a credit for the excess amount against future payments. See Hughes v. Hughes, 173 Va. 293, 4 S.E.2d 402
(1939).
Reversed and remanded.
Page 1