Drew W. Allbritten v. Renee E. Allbritten

• Court: Court of Appeals of Virginia
• Decided: November 12, 2008
• Docket: 1121081
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, McClanahan and Senior Judge Willis

DREW W. ALLBRITTEN MEMORANDUM OPINION * v. Record No. 1121-08-1 PER CURIAM NOVEMBER 12, 2008 RENEE E. ALLBRITTEN

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Stephen C. Mahan, 1 Judge

(Cynthia L. Ewing; The Ewing Law Firm, P.C., on briefs), for appellant. Appellant submitting on briefs.

(Allison W. Anders; Dannielle C. Hall-McIvor; Kaufman & Canoles, P.C., on brief), for appellee. Appellee submitting on brief.

Drew W. Allbritten (father) appeals from a child support order where the amount of child

support awarded was more than the guideline amount. Father argues that the trial court erred by not

providing written findings of why it deviated from the guideline amount. Renee E. Allbritten

(mother) has filed assignments of cross-error, arguing that the trial court erred in finding that there

was a material change of circumstances and that any change would justify a decrease in child

support. Upon reviewing the record and briefs of the parties, we reverse and remand the case for

the trial court to determine whether the change in circumstances justifies a modification of child

support and, if so, to provide written findings for any deviation from the child support guidelines.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 With the exception of the order entered on April 7, 2008, from which this appeal was taken, the Honorable Frederick B. Lowe presided over the proceedings addressed in this opinion. BACKGROUND

Father and mother were divorced in Georgia on March 31, 2006. The final decree

incorporated the parties’ settlement agreement, dated March 28, 2006. The settlement agreement

provided that father would pay $2,333 per month in child support according to the Georgia child

support guidelines. The amount was based on father earning $100,000 per year and mother

earning $15,000 per year.

Subsequent to the parties’ divorce, mother and the children moved to Virginia Beach, and

father moved to California. Father filed a motion to reduce child support due to each party’s

relocation and change in income. Mother stipulated she earned $15,000 per year. At the time of the

trial, father earned $164,657.28 per year. The parties stipulated that the Virginia child support

guidelines showed father’s obligation at $1,462.31 per month.

After listening to each party’s arguments, the judge ruled from the bench that father’s child

support obligation would be $1,900 per month. The trial court did not explain its decision in

writing.

ANALYSIS

Existence of material change in circumstances

Mother argues that the child support amount should not have been modified because there

was no material change in circumstances.

“Once a child support award has been entered, only a showing of a material change in

circumstances will justify modification of the support award.” Crabtree v. Crabtree, 17 Va. App.

81, 88, 435 S.E.2d 883, 888 (1993). The party seeking the modification of child support has the

burden of proving a material change in circumstances and that the change justifies the modification.

See Head v. Head, 24 Va. App. 166, 480 S.E.2d 780 (1997).

-2- In this case, father’s income increased significantly (by 61%) since the settlement

agreement was signed, thus representing a material change in circumstances. See Conway v.

Conway, 10 Va. App. 653, 658, 395 S.E.2d 464, 466 (1990) (support is based in part on parents’

ability to pay); see generally, Peter N. Swisher, Lawrence D. Diehl, and James R. Cottrell,

Family Law: Theory, Practice, and Forms § 10:5, at 322-25 (2008) (addressing determination of

child support amount under “parental generosity” rule). The record, however, is insufficient for

us to review the question of whether the parties’ move from Georgia also constituted a material

change in circumstances.

Change in circumstances justifying modification

Mother next argues that if father proved that there was a material change of circumstances,

the change did not justify modifying the child support amount.

“The best interest of the child or children is the paramount and guiding principle in setting

child support, whether it be adopting the presumptive amount, calculating an alternative sum after

the presumptive amount has been rebutted, [or] ordering the amount agreed upon between the

parents . . . .” Watkinson v. Henley, 13 Va. App. 151, 158-59, 409 S.E.2d 470, 474 (1991).

Virginia’s child support guidelines differ from Georgia’s. The presumptive child support

amount according to the Virginia child support guidelines is less than that contained in the parties’

original agreement.

There was no evidence that father’s increase in income justified a reduction in child support.

Furthermore, as indicated above, the record is insufficient for us to determine whether the parties’

move would justify reducing the child support. To the extent the trial court found a material change

-3- in circumstances, it correctly held that the Virginia child support guidelines applied2 ; but it did not

state why the child support should be modified from the parties’ agreement. Therefore, we remand

the issue to the trial court to determine whether a material change in circumstances justified a

modification of the child support.

Deviation from the child support guidelines

Assuming, without deciding, that the change in circumstances justifies a modification of the

child support, we next address father’s argument that the trial court erred by not providing written

findings of its deviation from the child support guidelines.

The child support guidelines are presumptively correct. Code § 20-108.1(B). “In order to

rebut the presumption, the court shall make written findings in the order . . . that the application of

such guidelines would be unjust or inappropriate in a particular case.” Id.

In this case, the parties stipulated that if the Virginia child support guidelines were applied,

the amount would be $1,462.31 per month, which was lower than the previous child support award.

The trial judge stated that he did not “think that it’s appropriate for the children and [mother] to take

that big a hit basically over night.” He used his “equitable discretion” to determine that child

support should be $1,900 per month. His order was issued from the bench, and he did not provide

any written findings for the deviation. The child support order also does not explain the deviation.

2 As we explained in Slaonka v. Pennline, 17 Va. App. 662, 665, 440 S.E.2d 423, 425 (1994) (citation and internal quotation marks omitted):

It is well settled that the starting point . . . for determining the child support obligation of a party, whether initially or at a modification hearing, is to compute the presumptive amount using the schedule found in Code § 20-108.2(B). The presumptive amount is rebuttable, however, and the court may deviate from the presumptive amount if such amount is unjust or inappropriate. Code § 20-108.2(A).

-4- Code § 20-108.1(B) lists fourteen factors that the trial court should consider when it deviates

from the guidelines. “The order ‘must identify the factors that justified deviation . . . and explain

why and to what extent the factors justified the adjustment’ in ‘enough detail and exactness to allow

for effective appellate review of the findings.’” Pharo v. Pharo, 19 Va. App. 236, 238, 450 S.E.2d

183, 184 (1994) (quoting Richardson v. Richardson, 12 Va. App. 18, 22, 401 S.E.2d 894, 897

(1991)).

Here, the trial court did not explain why the guideline amount was “unjust or inappropriate.”

Code § 20-108.1(B). In his ruling, the judge did not cite any of the factors in Code § 20-108.1(B) to

explain his reason for the deviation. The judge also did not provide any written findings to justify

the deviation, which would allow the appellate court to review his findings.

CONCLUSION

We reverse the trial court’s decision and remand this matter to the trial court to determine

whether a change in the child support is justified and, if so, to provide written findings for any

deviation from the presumptive child support amount.

Reversed and remanded.

-5-