Milligan v. Milligan, 1275-90-1

• Decision Date: 23 July 1991
• Docket Number: No. 1275-90-1,1275-90-1
• Citation: 407 S.E.2d 702,12 Va.App. 982
• Parties: Teresa Phillips MILLIGAN v. Michael Lewis MILLIGAN. Record
• Court: Virginia Court of Appeals

Page 702

407 S.E.2d 702

12 Va.App. 982

Teresa Phillips MILLIGAN v. Michael Lewis MILLIGAN.

Record No. 1275-90-1.

Court of Appeals of Virginia.

July 23, 1991.

Linda L. Furman, Virginia Beach, for appellant.

No brief or argument, for appellee.

Present: BAKER, BENTON and DUFF, JJ.

BAKER, Judge.

Teresa Phillips Milligan (wife) appeals from a judgment of the Circuit Court of the City of Norfolk (trial court) which denied her petition for an increase in child support from her former husband, Michael Lewis Milligan (husband). Wife asserts that she is not required to show a material change of circumstance as a condition precedent to obtaining the benefits of the presumptive support guidelines set forth in Code § 20-108.2, and further argues that even if she is required to show such change the evidence contained in this record justifies the application of the guidelines and the increase for which the petition prays.

No brief or argument was submitted by the husband on this appeal. However, the record reflects that the husband argued in the trial court that to obtain the relief prayed for, wife would have to prove a "substantial change of circumstance" because the provisions of Code § 20-108.2 did not become effective until after the entry of the decree wife sought to have modified. The trial court entered the following decree:

THIS CAUSE came on this 22nd day of June, 1990, on defendant's motion for increased child support, the complainant and defendant appearing in person and by counsel, and was argued by counsel.

It appearing to the Court that defendant failed to prove a material change in circumstances which would justify an increase in child support, it is, accordingly ADJUDGED, ORDERED and DECREED that defendant's motion for an increase in child support be, and the same hereby is, denied.

The parties married on October 27, 1984, and separated on May 14, 1986. One child, a daughter, was born of the marriage. A divorce suit was instituted on July 1, 1987. On October 24, 1987, the parties executed a separation agreement which was incorporated into the final decree of divorce entered on December 11, 1987. Each party waived spousal support; however, husband agreed to wife having custody of their daughter, to paying $200 per month for the child's support, to maintaining medical insurance for the child, and to being responsible for any deductible portion of a covered medical expense.

On October 24, 1987, husband's annual income was $40,323 while wife earned $12,000 annually working as a waitress. Wife's employment required her to work at night and husband's income included $12,000 annually for overtime work. ¹

On December 15, 1989, wife filed a petition on behalf of the child requesting that husband be required to increase the amount of the child support payments. The petition alleged "a change in the law (Code § 20-108.2) and other changes in circumstances." In support thereof, wife testified that her income had been substantially decreased while the child's needs had increased; that she found it difficult to obtain competent child care during the night hours she was required to work as a waitress; and that if she waitressed only during the day hours her income would be inadequate to pay for child care and other expenses. As a result, she sought and found other work with Systems Management American Corporation (SMA), which enabled her to be with the child at night and pay for day care.

At the final hearing on June 22, 1990, wife disclosed that she had been laid off from her job at SMA, and that, except for the $200 per month she received as child support, her only income was unemployment compensation of $260 per month. She unsuccessfully had sought other work comparable to her position with SMA. The trial court asked why she had not sought waitress jobs, apparently overlooking undisputed evidence that wife had been unable to find suitable child care at night and the inconsequential profit of day time waitressing. When the court advised that it did not understand her responses to its inquiry, wife again explained:

I'm trying to get a salary range near what I used to make. Now, I tried to find a sitter. Everyone is married. They want to be with their husbands at nights and weekends.... Before I can look for that, [I] have to find good child care.

Husband testified that in December 1987 he was earning in excess of $40,000 annually, but that his yearly income had been reduced to $28,474 due to the loss of overtime work.

In the decree appealed from, the trial court did not articulate why the guidelines were not applicable to this case. Code § 20-108.2 provides, in part, that "in any judicial proceeding" the guidelines establish a rebuttable presumption of correctness and if they are not applied "the court shall make written findings in the order ... that the application of the guidelines would be unjust or inappropriate." At the conclusion of the presentation of evidence, in response to the argument of wife's counsel, the trial court said:

The problem--immediate problem in reference to the computation of child support from the guidelines is that you have taken the amount of Mrs. Milligan's income as the unemployment comp that she is receiving now when the evidence is that she is only in a temporary situation, and we don't know exactly when she is going to be back.

After making that declaration, the trial court appears to have refused the petition not because of a "temporary" condition but because it felt that wife should have pursued waitress work, even though it had acknowledged that the change of careers was to the best interest of wife and child:

The history is that at the time of the stipulation and at the time of the...