Marc A. Pederson v. Pamela L. Pederson

• Court: Court of Appeals of Virginia
• Decided: April 28, 1998
• Docket: 2070974
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Elder Argued by teleconference

MARC A. PEDERSON MEMORANDUM OPINION * BY v. Record No. 2070-97-4 JUDGE JERE M. H. WILLIS, JR. APRIL 28, 1998 PAMELA L. PEDERSON

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Barnard F. Jennings, Judge Designate Marc A. Pederson, pro se.

John R. Powell (Pamela L. Pederson, pro se, on brief), for appellee.

Marc A. Pederson (the father) appeals the trial court's

denial of his petition to modify child support. He contends that

the trial court erred: (1) by failing to enforce the terms of

the parties' parenting agreement; (2) in denying his motion

because he did not submit a statement of his income and expenses;

(3) in failing to impute income to Pamela L. Pederson (the

mother); and (4) in denying his motion to reconsider. We affirm.

I.

The parties executed a parenting agreement, which provides,

in part: [The mother] and [the father] agree that [the mother] shall continue to work part-time. At their annual meeting in May, 1998 they will discuss the feasibility of her resuming full-time employment. Whenever [the mother] actually resumes full-time employment, they agree to recalculate their * Pursuant to Code § 17-116.010 this opinion is not designated for publication. child support obligations according to the Guidelines.

This agreement was incorporated into the parties' final decree of

divorce which was entered on December 23, 1996. The decree

awarded the parties joint legal and physical custody of their

three minor children, and calculated child support based upon the

mother's income from part-time employment.

In February, 1997, the mother informed the father that she

intended to resume working full-time and in March, 1997, she

resumed a full-time schedule. On March 21, 1997, the father

filed a motion seeking modification of child support based upon

the mother's resumption of full-time employment. Despite

attempts at mediation, the parties were unable to reach an

agreement on the amount of support. On April 25, 1997, the

father renewed his motion. On June 12, 1997, the mother returned to part-time work. On

June 20, 1997, the father moved the trial court to calculate

child support using the mother's full-time income.

On July 31, 1997, the trial court conducted a hearing, ore

tenus, on the father's motion for modification of child support.

Based upon the mother's temporary return to full-time

employment, the father requested a reduction of his child support

obligation from $307.54 to $26 per month.

The mother testified that she had undertaken full-time

employment for financial reasons, but reverted to part-time

status due to the children's emotional problems and the pending

- 2 - legal matters. She testified that her employer had asked that

she revert to part-time employment because she was missing work.

The trial court asked whether the father had prepared a

statement of his income and expenses. The father replied that he

did not have this information. The trial court denied and

dismissed the father's motion for modification of child support.

Thereafter, it denied his motion for reconsideration.

II. The father contends that the mother's resumption of

full-time employment required modification of the parties' child

support obligation. The parenting agreement provided that the

parties would recompute child support according to the guidelines

in Code § 20-108.2(B) when the mother resumed full-time

employment. That agreement was incorporated into the final

decree of divorce, and is enforceable as a term of the decree.

See Code § 20-109.1.

The trial court recognized that the mother's return to

full-time employment required recalculation of child support.

"The starting point for a trial court in determining the monthly

child support obligation of a party is the amount as computed in

the schedule found in Code § 20-108.2(B)." Richardson v.

Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991).

However, "[t]his amount is determined according to a schedule

that varies according to the combined gross income of the parties

and the number of children involved." Id.

- 3 - The father presented no evidence of his income and expenses.

Because Code § 20-108.2(B) requires competent evidence of the

parties' gross combined income, the trial court was unable to

calculate the presumptive amount of child support.

As the party moving for modification of child support, the

father bore the burden of providing the information that would

enable the trial court to recalculate his support obligation.

Cf. Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119

(1991) (noting that movant seeking a payment reduction based upon

his changed financial condition "must also make a full and clear

disclosure about his ability to pay"). To hold otherwise would

require a trial court to speculate as to the parties' gross

incomes, or require a court to conduct subsequent proceedings at

the expense of the litigants and judicial economy. The trial court requested a statement of the father's income

and expenses and provided him an opportunity to offer such

evidence. Because the father failed to present the evidence

necessary to apply the guidelines pursuant to the parties'

agreement, we affirm the trial court's denial of his motion.

III.

The father contends that the trial court erred by failing to

impute income to the mother. A finding that the mother was

voluntarily underemployed might have justified a deviation from

the amount prescribed by the guidelines. See Code

§ 20-108.1(B)(3); Bennett v. Commonwealth ex rel. Bennett, 22 Va.

- 4 - App. 684, 691, 472 S.E.2d 668, 672 (1996); Calvert v. Calvert, 18

Va. App. 781, 784-85, 447 S.E.2d 875, 876-77 (1994).

However, where a party seeks modification of a child support

award, "the trial court must first calculate the presumptive

amount of support under the guidelines in Code § 20-108.2 and

then determine whether deviation from the presumptive amount is

required." Orlandi v. Orlandi, 23 Va. App. 21, 28, 473 S.E.2d

716, 720 (1996). Thus, the presumptive amount must be calculated

before a deviation may be considered. See Code § 20-108.2(A).

The father, the moving party, failed to present evidence enabling

the trial court to determine the presumptive amount. Therefore,

the trial court could not consider a deviation.

IV.

The father contends that the trial court erred in denying

his motion to reconsider. Whether to grant this motion lay

within the sound discretion of the trial court. The record

demonstrates that both parties received a fair opportunity to

present their evidence and argument. See Morris v. Morris, 3 Va.

App. 303, 307, 349 S.E.2d 661, 663 (1986). We find no abuse of

discretion in the denial of the motion to reconsider.

We affirm the judgment of the trial court.

Affirmed.

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