Oley v. Branch

• Decision Date: 09 September 2014
• Docket Number: Record No. 1857–13–2.
• Citation: 762 S.E.2d 790,63 Va.App. 681
• Court: Virginia Court of Appeals
• Parties: Michael A. OLEY v. Lisa S. BRANCH.

63 Va.App. 681

762 S.E.2d 790

Michael A. OLEY

v.Lisa S. BRANCH.

Record No. 1857–13–2.

Court of Appeals of Virginia, Richmond.

Sept. 9, 2014.

Michael Oley, pro se.

No brief or argument for appellee.

Present: HUMPHREYS, ALSTON and DECKER, JJ.

HUMPHREYS, Judge.

Michael A. Oley (“Oley,” “father,” or “plaintiff”) appeals a child support order enteredby the Goochland County Circuit Court (the “circuit court”) on August 27, 2013 addressing Lisa S. Branch's (“Branch,” “mother,” or “defendant”) monthly child support obligations. He asserts seven assignments of error in support of his appeal. His first, second, and third assignments of error all allege that the circuit court erred as a matter of law in determining that Branch's personal injury settlement annuity, Pell Grant, and “free house” did not constitute income for the purpose of calculating child support. Oley's fourth assignment of error is that the circuit court erred as a matter of law in refusing to grant him credit for childcare expenses. His fifth and sixth assignments of error are that the circuit court abused its discretion in declining to award him child support for the children's private school tuition and in declining to award him child support arrearages. Finally, in his seventh assignment of error, Oley asserts that he was denied due process because he did not receive a fair hearing in the circuit court.

Each of Oley's arguments are addressed in turn below. For the reasons that follow, the judgment of the circuit court is affirmed in part, and reversed and remanded in part.

I. Background

Pursuant to Oley's and Branch's custody agreement, Oley is the custodial parent of their three minor children—ages nine, eleven, and fourteen. Oley and Branch have a fourth child who turned eighteen several months before the circuit court's August 27, 2013 child support order that is the focus of this dispute. The issues before this Court relate solely to the circuit court's decisions regarding Branch's child support obligations, and therefore the facts below are relevant only to those disputes.

A. The Parties' Gross Monthly Incomes and Child Support Obligations

Branch was unemployed and enrolled in school to become a dental assistant at the time of the child support hearing. The circuit court found that the evidence allowed it to impute income to Branch based on her most recent employment. It concluded that Branch was “capable of earning at least the rate of $8.50 an hour based on her [former] employment at Chick–fil–A,”—resulting in a monthly income of $1,462. Consequently, the circuit court fixed Branch's gross monthly income at $1,462.

Oley argued that Branch had other sources of “income” that the circuit court was required to consider when calculating her gross income pursuant to the statutory guidelines. Branch receives annuity payments stemming from a personal injury settlement from a 1987 car accident she was in when she was sixteen years old. She was awarded lifetime monthly payments of $1,000 as well as four $100,000 lump sum payments that were made in 1997, 2002, 2007, and 2012. The circuit court found that Branch's personal injury settlement annuity was excluded from being considered part of her gross income. Relying on this Court's decision in Whitaker v. Colbert, 18 Va.App. 202, 442 S.E.2d 429 (1994), the circuit court reasoned that because the settlement itself was not apportioned as to loss of income or lost wages, an annuity stemming from that settlement was not intended to be included in the statutory definition of gross income.

Branch also received a $5,500 Federal Pell Grant (“Pell Grant”) to go back to school. Oley argued that the circuit court should include her Pell Grant as well as $1,200 in “free housing”—the cost of the rent she paid before moving in with her mother—because it is a “gift” she receives by living with her mother free-of-charge. Without stating any reasons for doing so, the circuit court did not include either item in its computation of Branch's gross income.

With respect to Oley's monthly income, Oley owns a startup Internet business that he runs from his home. Prior to that, he owned a roofing and construction company that he “shuttered” in 2009 due to changes in the economic climate. The circuit court noted that Oley's bank account appeared to have large sums of money and he had recently purchased a $60,000 recreational vehicle using sums from those accounts. Oley attributed the money in his accounts to his past earnings and the proceeds from the sale of his home. The circuit court noted that it found Oley's “testimony regarding his income to be very suspicious.” However, despite its reservations, the circuit court concluded that “[i]t appears that the only evidence that we really have is that [Oley] made $500, essentially, over the first four months of this year.” The circuit court fixed Oley's gross monthly income at $125.

The circuit court concluded that pursuant to the statutory schedule the presumptive support Branch should pay Oley each month for their three minor children was $1,711.20.¹ However, the circuit court found that a deviation from the guidelines was warranted because “applying the guidelines amounts would work at a substantial inequity in this case.” Because Branch was only capable of earning $1,462 per month, the guideline amount of $1,711.20 would require “her to pay something that she doesn't have.” In considering a deviation from the guidelines, the circuit court additionally noted that “the evidence establishes that the father appears to have plenty of money to meet the needs of his children.”

Based on its finding that a deviation from the guidelines was appropriate, the circuit court ordered Branch to pay Oley $453.75 per month from May 1, 2011 until March 1, 2013 in child support for their four children—ending the date of their fourth child's eighteenth birthday. After March 1, 2013, the circuit court ordered Branch to pay Oley $400 a month in child support for their remaining three minor children.

B. Childcare Expenses

Oley runs his startup Internet company mainly from his home, but occasionally he works from a “virtual office” in Innsbrook. The three minor children attend school every weekday from 8:15 a.m. until 3:10 p.m. Oley testified that he requires childcare from 8:30 a.m. to 5:00 p.m. His current nanny works those hours, and sometimes longer, for $400 per week. According to Oley, the nanny's responsibilities included “cooking, cleaning, laundry, [and] a multifaceted amount of things.” The children are home only approximately two hours out of the nanny's 8:30 a.m. to 5:00 p.m. workday.

The circuit court found that the evidence demonstrated that the nanny's presence was more akin to “taking a role of a mother” rather than providing childcare that “simply allow[s] [Oley] to work.” Noting that it found Oley's testimony “not particular[ly] credible,” the circuit court concluded that the evidence did not demonstrate that the nanny's responsibilities had “anything to do with work-related day care.” Therefore, the circuit court denied Oley's request for childcare support because there was “insufficient evidence to find that [he] has legitimate work related child care expenses to be considered in accordance with the guidelines.” (Emphasis added).

C. Private School Tuition

Oley's and Branch's three minor children currently attend a private school named Salem Christian School. Their combined yearly tuitions total $15,000. The children have not always attended Salem Christian—they were home schooled for “a couple of years” and attended public school for “a couple of years.” The children re-entered Salem Christian after a period of home schooling. The parties' custody agreement was only that the children would not be home schooled; however, the agreement did not specifically mandate their attendance at Salem Christian. Branch does not object to the children attending Salem Christian.

The circuit court denied Oley's motion to require Branch to pay for the children's private school tuition because it found that Oley's evidence failed to establish that “there is a need for the children to attend private school,” “that the funds and needs otherwise cannot be met in public school,” and “that the mother has the ability to pay for it.”

II. Analysis

A. “Gross Income” under Code § 20–108.2(C)

Statutory child support guidelines were designed “to assure that both the child's needs and the parent's ability to pay are considered in determining the amount of support awards.” Richardson v. Richardson, 12 Va.App. 18, 20, 401 S.E.2d 894, 895 (1991). Code § 20–108.2(A) establishes a rebuttable presumption that an application of the schedule contained in the statute results in the correct amount of child support to be awarded under the circumstances. Only after determining the presumptive amount of support according to the schedule, may the circuit court adjust the support amount based on the factors found in Code § 20–108.1. Howe v. Howe, 30 Va.App. 207, 214, 516 S.E.2d 240, 244 (1999). Any “[d]eviations from the presumptive support obligation must be supported by written findings which state why the application of the guidelines in the particular case would be unjust or inappropriate.” Id.

Thus, “the starting point for a trial court in determining the monthly child support obligation of a party is the amount as computed by the schedule found in Code § 20–108.2(B).” Richardson, 12 Va.App. at 21, 401 S.E.2d at 896. This amount “varies according to the combined gross income of the parties and the number of children involved.” Id. Code § 20–108.2(C) defines “gross income” as:

all income from all sources, and shall include, but not be limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers' compensation benefits, unemployment insurance benefits,...