Barnhill v. Brooks

• Decision Date: 16 February 1993
• Docket Number: No. 0026-92-2,0026-92-2
• Citation: 15 Va.App. 696,427 S.E.2d 209
• Parties: Cynthia L. BARNHILL v. Paschal D. BROOKS, III Record
• Court: Virginia Court of Appeals

Page 209

427 S.E.2d 209

15 Va.App. 696

Cynthia L. BARNHILL v. Paschal D. BROOKS, III

Record No. 0026-92-2.

Court of Appeals of Virginia.

Feb. 16, 1993.

Larry A. Pochucha, Richmond (Bremner, Baber & Janus, on brief), for appellant.

Thomas Wolf, Richmond (Helen L. Konrad, Mezzullo & McCandlish, on brief), for appellee.

Present: ELDER, FITZPATRICK and MOON, JJ.

ELDER, Judge.

Cynthia L. Barnhill (appellant) appeals from a decision of the trial court providing Paschal D. Brooks, III (appellee), appellant's ex-husband, with a retroactive reduction in child support. She presents five assignments of error. For the following reasons, we affirm the judgment of the trial court.

I.

The parties were married on March 29, 1975, and divorced by decree entered May 2, 1988, at which time appellant obtained custody of the couple's two children. The final divorce decree required appellee to pay appellant $1,000 per month in child support ($500 per child), to maintain medical and hospitalization insurance on the children and to pay all medical and dental bills not covered by the insurance. On July 28, 1989, the circuit court granted appellee's petition for a reduction in child support from $1,000 to $800. Although this reduction took place approximately one month after the effective date of Virginia's presumptive child support guidelines under Code § 20-108.2, the $800 amount deviated from the statutory "presumptive amount," which was calculated to be about $500. Although the statute required written findings in the event of a significant deviation, the trial court made no such findings. Neither party appealed that decision.

Shortly thereafter, appellee quit his job with Waste Management Company, which he had held from May, 1988, until October, 1989. During that period, appellee had received an annual salary of $30,000, a company vehicle, health insurance and other benefits. At the time he quit, appellee had no other offers of employment. He then moved to Oregon with his new wife, but returned to Virginia in March 1990. From October 1990, until the time of trial, appellee was employed at LMC Safety Barricades Corp., earning $340 per week.

On June 28, 1991, appellee again petitioned for a reduction in child support. He failed to pay any support during the months of July, August and September, but he notified his ex-wife of his inability to pay and made a lump sum payment of $1,500 in October, 1991. In a hearing held on November 4, 1991, after reviewing the parties' respective financial situations, the court calculated the presumptive amount of appellee's support obligation as $271 per month plus health insurance. In reaching this amount, the court considered appellant's increase in monthly income and appellee's legal obligation for support of the child born of his second marriage. However, because it found that appellee had voluntarily reduced his income by quitting his job with Waste Management and failing to secure comparable employment, the court adjusted the presumptive support obligation upward to $500 per month total ($250 per child). Although appellee had not so requested, the court made this reduction retroactive to August 1, 1991, and gave him thirty days to pay the $800 in arrearages. It chose not to hold him in contempt for the arrearages, based both on his October payment and the burdensomeness of his dual support obligation. Finally, the court concluded that appellant was not entitled to attorney's fees because appellee's petition for reduction was justified.

II.

Appellant presents five assignments of error. In reviewing these assignments, we are guided by the principle that decisions concerning child support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence. Young v. Young, 3 Va.App. 80, 81, 348 S.E.2d 46, 47 (1986).

A.

Appellant asserts first that the trial court should not have granted appellee any reduction in support, even based on a material change in circumstances, because he voluntarily reduced his income. Analysis of this issue requires a discussion of several basic principles relating to the calculation of child support awards.

In all child support proceedings originating after July 1, 1989, the court must apply the provisions of Code §§ 20-107 and 108. See, e.g., O'Brien v. Rose, 14 Va.App. 960, ----, 420 S.E.2d 246, 248 (1992). These sections provide for the calculation of a "presumptive" amount of child support as a percentage of the parents' combined gross monthly incomes. Code § 20-108.2 establishes a rebuttable presumption that this percentage is appropriate under the circumstances, and a trial judge who wishes to deviate from the presumptive amount must make findings of fact to justify the deviation. Id. at ----, 420 S.E.2d at 248-49.

Once an award has been entered, only a showing of a material change in circumstances by one of the parties will justify a review of the award, and the moving party has the burden of proving that material change by a preponderance of the evidence. Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 118-19 (1991) (citing Edwards v. Lowry, 232 Va. 110, 112, 348 S.E.2d 259, 261 (1986)). If the previous award was entered prior to July 1, 1989, the effective date of the guidelines, the material change in circumstances rule "is [not] required as a condition precedent to [review and adjustment] where either [party] can show a significant variance between the guidelines and the court's prior decree." Milligan v. Milligan, 12 Va.App. 982, 988, 407 S.E.2d 702, 705 (1991). If the prior award was made after the effective date of the guidelines, however, a significant variation between the presumptive and actual support amount is not sufficient to justify review of the award. See id. In addition, although the guidelines require the court to make findings of fact to explain any significant deviation therefrom, the court's failure to do so, without more, does not provide an adequate basis for subsequent review of the award at the trial level. See Hiner v. Hadeed, --- Va.App. ----, ----, 425 S.E.2d 811, 815 (1993). The only method for challenging the court's deviation from the guidelines or failure to make the required findings is by direct appeal. Id.

In this case, the facts show that the previous award was made on July 28, 1989, following the enactment of the guidelines. Although the judge in the proceeding of November 4, 1991, determined that the amount of support calculated in the July, 1989, proceeding deviated significantly from the presumptive amount, he also noted that the record from the prior proceeding did not contain the required findings of fact. Our recent holding in Hiner, --- Va.App. at ----, 425 S.E.2d at 815, as outlined above, makes clear that this deviation alone would not justify review of the award. In this case, however, the evidence was sufficient for the trial court to find that appellee had met his burden of showing a material change in circumstances by a preponderance of the evidence, thereby justifying review of the award.

The evidence shows that appellee's financial situation has changed in two respects since the entry of the court's last support award--his earned income is lower and his expenses have increased because he must now pay court-ordered support of $455 for the child born of his second marriage. In regard to this reduction in income, however, appellee also had to show that he was not "voluntarily unemployed or underemployed." Antonelli, 242 Va. at 154, 409 S.E.2d at 119 (quoting Code § 20-108.1(B)(3)).

The facts here are more compelling than those in Antonelli, in that appellee had no alternate employment plans when he quit his job with Waste Management Company. Clearly, the trial court was justified in finding that appellee was voluntarily underemployed. Contrary to appellant's assertions, however, voluntary underemployment is not an absolute bar to judicial adjustment of child support if other material changes in circumstances have occurred that are not the fault of the movant. The guidelines include voluntary underemployment as only one of several factors to be considered in adjusting the presumptive child support amount. See Code § 20-108.1(B)(3); Richardson v. Richardson, 12 Va.App. 18, 21, 401 S.E.2d 894, 896 (1991). Appellee was still entitled, therefore, to an adjustment in the amount of support based on two other proven material changes--his new legal obligation to support the child born of his second marriage and his first wife's increase in income.

The question we must now address is one left unanswered by our recent decision in Hiner: whether, in proceedings where no written findings were made supporting a prior deviating award of support, the trial judge should first look to the guidelines or look to the prior award.

The purpose of the statutory guidelines is to reduce the disparity among various child support awards. By providing an express formula for determining the presumptive amount of support and requiring written findings to justify deviation therefrom, the legislature sought to increase uniformity and the effectiveness of appellate review. Richardson, 12 Va.App. at 22, 401 S.E.2d at 896. However, a certain degree of finality must be accorded such decisions. For that reason, we concluded in Hiner that a trial judge's failure to make written findings justifying deviation may be challenged only on direct appeal and not in a subsequent proceeding. "If the rule were otherwise, parties could re-litigate support ad infinitum so long as the amount of support deviates significantly from the guidelines." Hiner, --- Va.App. at ----, 425 S.E.2d at 815.

We also acknowledged in Hiner that if we were to bar review completely, "an erroneous award, ... made without any specific written findings, [might] continue to serve as the basis for all future modification proceedings." Id. at ----, 425 S.E.2d at 815. Neither of...