John Dean Collins v. Tammie Leigh Hurley Collins

• Court: Court of Appeals of Virginia
• Decided: April 27, 1999
• Docket: 1984983
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Frank

JOHN DEAN COLLINS MEMORANDUM OPINION * v. Record No. 1984-98-3 PER CURIAM APRIL 27, 1999 TAMMIE LEIGH HURLEY COLLINS

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Robert P. Doherty, Jr., Judge

(Barry M. Tatel; Neil E. McNally; Key & Tatel, P.C., on brief), for appellant.

(Deborah Caldwell-Bono, on brief), for appellee.

John Dean Collins (father) appeals the decision of the

circuit court denying his request to reduce the monthly child

support he pays to Tammie Leigh Hurley Collins (mother). Father

contends that the trial court erred by (1) deviating from the

child support guidelines set forth in Code § 20-108.2; (2)

refusing to reduce the amount of child support after finding a

material change in circumstances had occurred; and (3) assessing

a child support arrearage. Upon reviewing the record and briefs

of the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the decision of the trial

court. See Rule 5A:27.

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. As the party seeking to modify the existing support order,

father was required to prove “both a material change in

circumstances and that such change justifies an alteration in

the amount of support.” Yohay v. Ryan, 4 Va. App. 559, 566, 359

S.E.2d 320, 324 (1987).

A material change in circumstances, standing alone, does not provide a basis for the trial court to modify its support decree. A modification is appropriate only after the court has considered the material change in circumstances in relation to the factors set forth in Code § 20-108, namely, the present circumstances of both parties and the benefit of the children. Id.

Deviation from Presumptive Guidelines

Father contends that the trial court erred by deviating

from the presumptive guideline amount set out in Code

§ 20-108.2. We disagree.

[A]fter determining the presumptive amount of support according to the schedule, the trial court may adjust the amount based on the factors found in Code §§ 20-107.2 and 20-108.1. Deviations 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. If the applicability of the factors is supported by the evidence and the trial judge has not otherwise abused his or her discretion, the deviation from the presumptive support obligation will be upheld on appeal.

Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894,

896 (1991).

- 2 - The trial court calculated child support pursuant to the

guidelines, then indicated, in writing, that it was deviating

from the guideline amount. The trial court ruled that, based

upon the evidence and the statutory factors, it would be unjust

to reduce the amount of child support paid by father from the

amount agreed upon by the parties in their post-separation

agreement. The trial court stated: “With knowledge, imputed or

actual, of the child support guidelines, the parties

intentionally and voluntarily chose to ignore them. Instead, as

parents, the parties determined that the particular needs of

their child, based on the manner in which they chose to raise

him, would require $125.00 per week be paid to the mother as

child support.” In this situation, we cannot say that in

deviating from the guidelines the trial court abused its

discretion.

Material Change in Circumstances

Father also contends that the trial court erred when it

found a material change of circumstances but refused to reduce

the amount of child support. A party seeking to modify child

support must not only prove a material change in circumstances

but also that that change warrants a modification of support.

See Yohay, 4 Va. App. at 21, 359 S.E.2d at 324. See also Layman

v. Layman, 25 Va. App. 365, 367, 488 S.E.2d 658, 659 (1997).

The trial court found that a material change in circumstances

had occurred because both parties had increased their incomes,

- 3 - but that the change did not warrant a reduction in father’s

child support payments.

Specifically, the court found “that the needs of the child

have drastically altered since” entry of the final decree.

However, the court agreed with mother that “she waived her

spousal support in return for the agreed child support figure.”

It is clear that the trial court considered the change in

circumstances, the positions of the parties, and the reasons for

their actions. We cannot say that its findings are without

support in the record.

Child Support Arrearage

The trial court ruled that father was $2,932.50, plus

interest, in arrears on his child support payments. Father

argues that, because he paid the presumptive amount of child

support during the time when his petition for modification was

pending before the juvenile and domestic relations district

court, he should not be assessed an arrearage. This argument is

without merit.

While a trial court may modify a support payment “from the

date that notice of such [modification] petition has been given

to the responding party,” Code § 20-108, “[w]hether to make

modification of a support order effective during a period when a

petition is pending is entirely within the discretion of the

trial court.” O'Brien v. Rose, 14 Va. App. 960, 965, 420 S.E.2d

246, 249 (1992). A litigant may not unilaterally reduce

- 4 - court-ordered child support payments. “Should circumstances

change requiring alteration in the amount of support, a party's

remedy is to apply to the court for relief.” Goodpasture v.

Goodpasture, 7 Va. App. 55, 58, 371 S.E.2d 845, 847 (1988).

Father had no authority to pay less child support from July

1997 through February 1998 than he was previously ordered to pay

by the unmodified decree of divorce. Therefore, the trial court

did not err in finding that father owed an arrearage of

$2,932.50.

Accordingly, the decision of the circuit court is summarily

affirmed.

- 5 -