Hiner v. Hadeed

• Decision Date: 12 January 1993
• Docket Number: No. 1782-91-2,1782-91-2
• Citation: 15 Va.App. 575,425 S.E.2d 811
• Parties: William S. HINER v. Grace HADEED. Record
• Court: Virginia Court of Appeals

Page 811

425 S.E.2d 811

15 Va.App. 575

William S. HINER v. Grace HADEED.

Record No. 1782-91-2.

Court of Appeals of Virginia.

Jan. 12, 1993.

Harry P. Anderson, Jr., Richmond (Anderson & Parkerson, on brief), for appellant.

Robert N. Johnson, Richmond (Robert N. & Anne M. Johnson, Inc., on brief), for appellee.

Present: BAKER, COLEMAN and BRAY, JJ.

COLEMAN, Judge.

The issue in this appeal is the extent to which the presumptive child support guidelines established by Code §§ 20-108.1 and 20-108.2 must be considered in a proceeding to modify child support. More specifically, the issue is when a trial judge has previously denied a request to modify a child support award that deviates significantly from the guidelines, without having made written findings why the guideline amount was unjust or inappropriate or what factors justified the amount of the non-conforming award, to what extent must the trial judge in a subsequent modification proceeding then consider the guidelines and make written findings to explain why the guideline amount continues to be unjust or inappropriate and why the award continues to deviate from the guidelines. We do not answer the question directly because Hiner, who filed the petition to modify support, failed to show that a material change of circumstances had occurred since the court last heard and denied his request to reduce child support. Thus, we hold that where no material change in circumstance has occurred since the last modification hearing in which the support guidelines presumably had been considered, the principles of res judicata bar the trial judge from reconsidering the child support award. Accordingly, because the trial judge may not consider modifying the award, written findings explaining the non-conforming award are not required, even though the trial judge in the prior proceeding may have failed to make those required findings.

William S. Hiner (husband) and Grace Hadeed (wife) were divorced on September 3, 1987. The divorce decree ordered that the husband pay $1000 per month child support for the couple's two minor children, of which $250 per month was specifically designated for the cost of their private schooling. On April 13, 1990, the wife petitioned for an increase in child support. In response, the husband filed a motion to reduce his child support obligation to the amount presumed correct under the child support guidelines, Code § 20-108.2, which had become effective July 1, 1989, after the initial award. By order dated January 15, 1991, the trial judge denied the parties' respective petitions. Neither the trial judge's letter opinion nor order indicated that he had determined the parties' joint gross income or calculated the presumptively correct amount of child support according to the guidelines. Furthermore, neither the order nor the opinion letter contained a written finding explaining those factors the judge considered that presumably made the guideline amount unjust and inappropriate and justified the judge's refusal to modify an award which deviated significantly from the guidelines. See Watkinson v. Henley, 13 Va.App. 151, 156-58, 409 S.E.2d 470, 473-74 (1991); Milligan v. Milligan, 12 Va.App. 982, 987, 407 S.E.2d 702, 704 (1991). Nevertheless, that order was not appealed, and it became a final order.

Beginning in December, 1990, Hiner began paying Grace Hadeed only $700 per month child support, rather than $1000 as the support order provided. A hearing was scheduled for Hiner to show cause why he should not be cited for contempt. Hiner again filed a petition to reduce his child support obligation to the amount presumed correct under the guidelines. After an ore tenus hearing, the trial judge made a conclusory finding "that the application of the guidelines would be unjust and inappropriate in this case, as determined by relevant evidence pertaining to factors set forth in Code §§ 20-107.2 and 20-108.1," and denied Hiner's petition to modify the award to the amount presumed correct under the guidelines. The trial judge found, however, that no need existed for private schooling and modified the award by relieving Hiner of the requirement to pay $250 per month for private schooling. Neither party has appealed that decision. Insofar as the record reflects, the trial judge did not calculate the amount of child support presumed correct according to the guidelines, nor did the judge accept Hiner's calculation that, based on the parties' joint incomes, the award presumed to be correct according to the guidelines would be $454.02 per month. Hiner appeals the trial court's order denying his petition to reduce the $750 per month child support award to the amount presumed correct according to the guidelines under Code § 20-108.2(B). Hiner also contends that because the nonconforming award continues to deviate from the guidelines, the trial judge erred by failing to make explicit written findings explaining why an award according to the guidelines would be "unjust or inappropriate" and by not setting forth the factors under Code §§ 20-108.1(B) and 20-107.2 that he relied upon to uphold an award that continues to deviate significantly from the guidelines.

In any judicial proceeding to determine child support, the court must consider all relevant evidence concerning the needs of the child and the ability of the parents to provide for those needs. Code § 20-108.1; see Williams v. Williams, 4 Va.App. 19, 24, 354 S.E.2d 64, 66 (1987). Effective July 1, 1989, Code §§ 20-108.1(B) [15 Va.App. 579] and 20-108.2 provide that "in any judicial or administrative proceeding for ... child support" the presumptively correct amount of child support shall be the amount according to the guidelines. Richardson v. Richardson, 12 Va.App. 18, 20, 401 S.E.2d 894, 895 (1991) (emphasis added). In a proceeding to increase, decrease, or terminate child support under Code §§ 20-108 and 20-112, the trial judge must determine and consider the presumptively correct award of child support according to the guidelines. See Buchanan v. Buchanan, 14 Va.App. 53, 57, 415 S.E.2d 237, 239 (1992). Thus, when a judge determines that a material change of circumstance has occurred in the children's needs or the parents' abilities to provide for those needs and that a change in the amount of support is required, the initial step to determine how to modify the support award is to calculate the amount presumed to be correct according to the guidelines. Id. A trial judge may, nevertheless, award an amount that deviates from the guideline amount, provided the judge makes written findings explaining why an award in an amount under the guidelines would be unjust and inappropriate and explaining what factors the judge considered under Code § 20-107.2 in making a non-conforming award. Code § 20-108.1; Richardson, 12 Va.App. at 21-22, 401 S.E.2d at 896.

Before the enactment of the child support guidelines, a trial judge was required, in order to entertain a petition to increase, decrease, or terminate child support, to make a threshold finding that a material change of circumstance has occurred since the last award or hearing to modify support, Featherstone v. Brooks, 220 Va. 443, 446-47, 258 S.E.2d 513, 515 (1979), and that the change "justifies an alteration in the amount of support," Yohay v. Ryan, 4...