Broadhead v. Broadhead, Record No. 0923-09-2 (Va. App. 3/16/2010)
| Decision Date | 16 March 2010 |
| Docket Number | Record No. 0923-09-2.,Record No. 1097-09-2. |
| Court | Virginia Court of Appeals |
| Parties | TOM A. BROADHEAD, JR., v. ANNE E. BROADHEAD. ANNE E. BROADHEAD, v. TOM A. BROADHEAD, JR. |
Appeal from the Circuit Court of Henrico County, L. A. Harris, Jr., Judge.
Kathleen B. Havener (The Havener Law Firm, LLC, on briefs), for Tom A. Broadhead, Jr.
Mary Burkey Owens (Kimberly A. Skiba; Owen & Owens PLC, on briefs), for Anne E. Broadhead.
Present: Judges Frank, Kelsey and Haley.
This child support case returns to us following our remand in Broadhead v. Broadhead, 51 Va. App. 170, 655 S.E.2d 748 (2008) (Broadhead I). Both parties filed separate appeals, which we now consolidate for purposes of decision, asserting the trial court erred during the remand proceedings. We affirm on all issues, except one, and remand the case for the trial court to readdress that issue.
When reviewing a trial court's decision on appeal, "we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences." Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). "That principle requires us to discard the evidence of the appellant which conflicts, either directly or inferentially, with the evidence presented by the appellee at trial." Brandau v. Brandau, 52 Va. App. 632, 635, 666 S.E.2d 532, 534 (2008) (citation omitted).
This case came to us in Broadhead I on an appeal by Tom A. Broadhead, Jr. (father) contending the trial court erroneously imputed income to him upon a finding that he was voluntarily underemployed. We reversed because the trial court "failed to consider the other factors relevant to an analysis of whether father is voluntarily underemployed in his [then] current position." Broadhead I, 51 Va. App. at 183, 655 S.E.2d at 754.
After our ruling, father accepted a new job in Oregon making much less than the trial court had imputed to him but close to the amount he earlier claimed would be appropriate. Mother thereafter withdrew her request to impute income, which was the sole basis for our reversal in Broadhead I. Convinced by the parties that the initial debate between them had been overtaken by events, the trial court did not impute income to the father and ordered father to pay $650 a month in child support as of May 16, 2008 — considerably less than the $1,800 a month ordered by the 2001 divorce decree and the $890 monthly payment agreed to by the parties in 2003. Because father had ceased paying child support after our remand pursuant to yet another agreement with mother not approved by the court, the trial court calculated father owed an arrearage of $7,150.1
On appeal, father argues the trial court's award was too high for various reasons. In her cross-appeal, mother argues the award was too low for various reasons. As we address the appeal and cross-appeal issues, we will restate only those facts pertinent to the issue raised.
Many of father's arguments rest on a misunderstanding of the effect of Broadhead I. He assumes our remand "left a gaping hole" in his court-ordered obligation to provide child support. See Father's Appellant Br. at 12. Not so. Broadhead I vacated the 2006 modification order and remanded the case for reconsideration of the then-pending petitions for modification. The order that was modified, however, was the 2001 divorce decree which imposed a $1,800 a month child support obligation. Without a modification order, the 2001 decree remained in force. The baseline on remand, therefore, was not the vacated 2006 order but rather the 2001 decree.
On appeal, father claims the trial court disobeyed our mandate in Broadhead I by failing to reexamine the facts as of the time of the earlier 2006 hearing to determine if he was underemployed at that time. Had the circumstances not materially changed between the trial court's 2006 pre-appeal hearing and the 2009 remand hearing, we would agree with father. The circumstances, however, greatly changed during that time.
The matter came before the trial court in 2006 on father's request for a reduction in child support based on his reduced income and the parties' 2003 agreement to limit support to $890 a month. The 2001 divorce decree had set child support at $1,800 a month. The burden of proof was on father to present changed circumstances warranting a reduction. He alleged his income had fallen from about $283,000 to about $170,000 a year because he had to change jobs. The trial court held father responsible for the job change and imputed to him the higher of the two incomes. Finding the imputation erroneous, we remanded the case to the trial court to determine whether "father is voluntarily underemployed in his current position" taking into account the reasonableness of his job search efforts and the availability of higher paying positions near father's residence. Broadhead I, 51 Va. App. at 184, 655 S.E.2d at 755.
After our remand, father took a new job in Oregon making $180,000 (about $10,000 more than his most recent position but far less than the income figure earlier imputed to him). Both parties thereafter filed new motions to amend the support order. At the remand hearing, mother did not seek to impute income to father. Instead, mother accepted his new salary as a baseline wage figure subject to potential adjustments for travel expenses and bonus income.2 These new circumstances, coupled with mother's decision not to challenge the new wage figure, mooted any need for the trial court to determine whether father was underemployed in the $170,000 job that he no longer had.3 That issue had been overtaken by events. Cf. Wagner v. Wagner, 16 Va. App. 529, 532, 431 S.E.2d 77, 79 (1993) (en banc) ().
After our decision in Broadhead I, father continued to pay $800 in monthly child support for four months. In May 2008, he stopped paying altogether pursuant to yet another unapproved agreement with mother. Eleven months passed with father paying no support. The court's April 2009 order found father had "not paid any child support since April of 2008, and that there is an arrearage due in the amount of $7,150.00 from May 16, 2008 through and including the payment that was due on March 16, 2009." Order at 3 (Apr. 16, 2009). The order calculated the arrearage using a figure of $650 a month.
Father requested, and the trial court refused, to make the new support award effective as of the date of our Broadhead I mandate. On appeal, father argues he made those payments "voluntarily (i.e., not pursuant to a valid child support order)." Father's Appellant Br. at 15. "Once the Court of Appeals overturned the child support order of the Trial Court in January 2008, there was no order in effect that required father to continue paying child support." Id. (emphasis added).4 We disagree.
Broadhead I reversed the trial court's modification of the child support award in the 2001 divorce decree. But our reversal of the modification decree did not have the effect of vacating any provision of the 2001 divorce decree. As a result, father had a continuing court-ordered obligation to pay child support. Abiding by the parties' 2003 agreement, mother did not seek to recover the full $1,800 a month obligation imposed by the 2001 divorce decree. Her waiver, however, did not provide father with any equitable grounds to seek a credit for "voluntary" child support payments between the date of our Broadhead I mandate and the trial court's decision on remand.5
Perhaps so, father counters, but he was involuntarily unemployed during the four months he paid $800 and the court should have taken that into consideration in calculating his arrearage. Decreasing his support obligation for those months, he reasons, could offset some of the accrued arrearage during the later eleven-month period that he paid no support at all. We find this argument unpersuasive for two reasons.
First, the trial court began its arrearage calculation in May 2008 — because mother asked for no more — rather than calculate the entire period during which father was paying far less than had been ordered by the 2001 divorce decree. By so doing, father was relieved of a substantial arrearage.6 Second, whether to retroactively modify a support order to the date of an earlier petition "is entirely within the discretion of the trial court." Stiles v. Stiles, 48 Va. App. 449, 456, 632 S.E.2d 607, 611 (2006) (citation omitted). In its opinion letter, the circuit court noted father "made no attempt to alter the support amount until his first filing after the appeal, which was on May 19, 2008." Opinion Letter at 2 (Feb. 10, 2009). The post-remand support order fully enveloped the period during which the court calculated father's arrearage. Thus, none of the arrearage was calculated with allegedly erroneous support figures, and father has not shown why earlier putative overpayments should not be considered gifts to the children. See Buxbaum v. Buxbaum, 20 Va. App. 181, 186, 455 S.E.2d 742, 755 (1995) .
Relying on Code § 20-108.1(B), father argues on appeal the trial court failed to provide sufficiently specific written findings in support of its child support award. We disagree.
If a court deviates from the presumptive guideline support award, Code § 20-108.1(B) requires the court to make "written findings" that the application of the "guidelines would be unjust or inappropriate" in the case. The trial court's findings must be in "enough detail and exactness to allow for effective appellate...
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