Solomond v. Ball, 0953-95-4

• Decision Date: 07 May 1996
• Docket Number: No. 0953-95-4,0953-95-4
• Citation: 22 Va.App. 385,470 S.E.2d 157
• Court: Virginia Court of Appeals
• Parties: John P. SOLOMOND v. C. Louise BALL. Record

Page 157

470 S.E.2d 157

22 Va.App. 385

John P. SOLOMOND v. C. Louise BALL.

Record No. 0953-95-4.

Court of Appeals of Virginia Alexandria.

May 7, 1996.

[22 Va.App. 387] John P. Solomond, pro se.

C. Louise Ball, pro se.

Present: COLEMAN, WILLIS and OVERTON, JJ.

COLEMAN, Judge.

This domestic relations appeal involves the obligation of a noncustodial parent to pay an amount of child support in excess of the amount provided by the presumptive guidelines under Code § 20-108.2. The trial court ordered the increase in the noncustodial parent's child support, which deviated from the guidelines, to enable the parents' two children to transfer from one private school to a more expensive private school of the custodial parent's choice. We hold that the trial court erred by increasing the noncustodial parent's monthly support obligation because no showing was made on the record of an adequate reason to further deviate from the presumptive amount of support.

In addition, the father appeals the trial court's holding that he was $100 in arrears for his January 1995 support payment. We affirm that holding.

FACTS AND PROCEEDINGS

John Paul Solomond and C. Louise Ball were divorced in 1988. The divorce decree granted Ball custody of their two sons, Phillip McCown Solomond and Matthew Brady Solomond. In 1994, Ball filed a motion to increase child support because Phillip and Matthew had been accepted at Corpus Christi School, a private Catholic school. Prior to the fall of 1994, both children had attended public school, where they had performed well academically.

As a result of the 1994 modification hearing, the trial court held that Phillip's and Matthew's acceptances to attend Corpus Christi were material changes in circumstances that justified modifying the existing child support order. The court determined that the presumptive amount of child support that Solomond was expected to pay according to the guidelines was $1,171 per month, based upon Solomond's actual monthly income and Ball's actual and imputed income of $1,952 per month. However, because the children incurred substantial additional educational expenses by attending Corpus Christi, and because Ball's actual annual income was only $18,000, the trial court held that the presumptive guideline amount would be "unjust and inappropriate." Specifically, the court stated that it was deviating from the guidelines because it would be in the children's "best interests to take advantage of th[e] educational opportunity" offered by attending Corpus Christi. Consequently, the court ordered that Solomond "should pay 70% of all school-related costs, including but not limited to expenses of tuition, uniforms, books, transportation, supplies, registration and testing fees, and field trips as such expenses and costs are due." In addition, the In March 1995, Ball filed a motion to increase child support by adjusting the percentage of tuition that Solomond would be required to pay because Phillip had been accepted to St. Stephen's, another private school, for the 1995-96 school year and Matthew had been placed on the school's waiting list. ¹ Because the tuition at St. Stephen's is "considerably higher" than the tuition at Corpus Christi, Ball petitioned the court to increase the percentage of the children's educational expenses to be paid by Solomond.

                court held that "if the children succeed in gaining entrance to another school whose tuition is higher, this would constitute a sufficient change in circumstances to re-evaluate the percentage each parent would be required to contribute."   Solomond objected to the court's 1994 modification order, but he did not appeal from it
                

Solomond responded by requesting that the trial court vacate the August 1994 modified child support order that required him to pay seventy percent of the children's educational expenses, and he also requested that the court enter an order limiting his child support obligation to the presumptive amount under the guidelines. Solomond argued that the evidence did not show that it was necessary or justified for the children to attend private school, much less to transfer from Corpus Christi to St. Stephen's. Furthermore, he asserted that his income and financial resources were inadequate to send the children to private school, particularly to pay the increased expenses to attend St. Stephen's.

The trial court held that Phillip's admission to St. Stephen's and Matthew's placement on the waiting list constituted a material change in circumstances, and that it would be in the "best interests" of the children "to take advantage of this educational opportunity." Accordingly, the court modified the child support order to require Solomond to pay, in addition to the presumptive amount provided by the guidelines, the children's yearly educational expenses in the amount of seventy percent of the first $8,000 in expenses and fifty percent of expenses exceeding $8,000.

PRIVATE SCHOOL EXPENSES

Solomond asked the trial court to vacate its 1994 support order, which deviated from the guidelines and ordered him to pay a percentage of all private school expenses. A trial court may modify or vacate a final order within "twenty-one days after the date of entry, and no longer." Rule 1:1. Here, because the twenty-one day period had elapsed, the trial court had no authority to vacate the August 1994 order requiring Solomond to pay seventy percent of Phillip's and Matthew's private school expenses. Because Solomond did not appeal the August 1994 order and because it now constitutes a final decree, the findings of fact and conclusions of law contained in that decree are binding and become the law of the case insofar as the 1994 support award is concerned. See Hall v. Hall, 9 Va.App. 426, 429, 388 S.E.2d 669, 670 (1990). Therefore, we cannot disturb the trial court's finding that it was in Phillip's and Matthew's "best interest" to leave the public school system to attend private school, although the record does not show a special need for either of them to attend private school. Furthermore, we cannot disturb the trial court's holding that the changed circumstance justified deviating from the guidelines to require the father to pay an additional sum for the children's private schooling. As the following discussion demonstrates, however, we are not bound by the anticipatory language in the August 1994 order that the children's admission to another school would constitute a material change in circumstance that would justify a reevaluation of the father's support obligation.

In Smith v. Smith, 18 Va.App. 427, 444 S.E.2d 269 (1994), we held that "[i]mplicit in the [child support] statutory scheme is that educational expenses are included in the presumptive amount of child support as calculated under the Code." Id. at 435, 444 S.E.2d at 275. Code § 20-108.1(B) expressly provides that when a trial court deviates from the presumptive amount recommended by the guidelines, it must provide written findings of fact that "shall give a justification of why the order varies from the guidelines." Id. Furthermore, "a conclusory written statement of [the trial court's] findings" is not sufficient to justify deviating from the presumptive guideline amount. Richardson v. Richardson, 12 Va.App. 18, 22, 401 S.E.2d 894, 896 (1991).

In determining whether a noncustodial parent should be required to pay support to provide for a child's private educational expenses, other jurisdictions have held that two conditions must exist: "demonstrated need of the child, and the parent's ability to pay." See In re Marriage of Stern, 57 Wash.App. 707, 789 P.2d 807, 813 , review denied, 115 Wash.2d 1013, 797 P.2d 513 (1990). These courts have considered factors such as the availability of satisfactory public schools, the child's attendance at private school prior to the separation and divorce, the child's special emotional or physical needs, religious training, and...