Tracy L. Carmon v. Commonwealth, DSS

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Fitzpatrick Argued at Richmond, Virginia

TRACY L. CARMON

v. Record No. 1061-95-2 OPINION BY JUDGE SAM W. COLEMAN III COMMONWEALTH OF VIRGINIA, MARCH 5, 1996 DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel. HAZEL M. JONES

FROM THE CIRCUIT COURT OF CAROLINE COUNTY J. Peyton Farmer, Judge

William L. Botts, III (Rappahannock Legal Services, on briefs), for appellant.

Gary P. Webb, Senior Special Counsel (Betsy S. Elliott, Senior Special Counsel, Division of Child Support Enforcement; James S. Gilmore, III, Attorney General; William H. Hurd, Deputy Attorney General; Siran S. Faulders, Senior Assistant Attorney General, on brief), for appellee.

Tracy L. Carmon appeals the trial court's order declaring

her to be $1,755.72 in arrears in child support. Carmon contends

that the trial court erred in determining that she had income of

$300 per month from November 1989 through August 1991. We hold

that the trial court did not err; therefore, we affirm the trial

court's order.

Hazel Jones, the appellant's mother, had custody of the

appellant's son, Linwood, for thirty-eight months from July 1988

through August 1991. Jones received benefits through the Aid to

Families With Dependent Children (AFDC) program for Linwood's

support while she had custody. The Virginia Department of Social Services, Division of Child Support Enforcement (DCSE) entered an

administrative support order (ASO) on January 11, 1994, requiring

the appellant to reimburse $2,470 of the AFDC benefits paid to

Jones from July 1988 through August 1991. DCSE computed the

amount of $2,470 based upon the guideline schedule in Code

§ 20.108.2(B) showing $65 per month for a person with income from

$0 - $599 for thirty-eight months. DCSE based the $65 amount on

its administrative policy construing Code § 20-108.2(B) to impose

a mandatory minimum monthly child support obligation of $65 on

all debtor parents with monthly income at or below $599. Appellant contested the ASO. After an administrative

hearing, DCSE held that the ASO was valid. The juvenile and

domestic relations district court heard the case de novo and

issued an order requiring appellant to pay $2,470. Appellant

appealed to the circuit court.

In the circuit court, appellant testified that from July 1,

1988, through October 31, 1989, she was employed as a housekeeper

at a motel in Richmond and that her earnings were approximately

$598 per month. In November 1989, her employer terminated her

employment. She unsuccessfully sought other employment in the

Richmond area immediately after losing her job and periodically

thereafter until August 1991.

After losing her job, appellant entered into an arrangement

with the rooming house where she resided to collect the weekly

rent from the other boarders and to clean the rooms that had been

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2 vacated in exchange for a free room for herself. This

arrangement began in November 1989 and continued through August

1991. The average monthly value of her room during this period

was approximately $300.

At the circuit court hearing, appellant challenged the

portion of the ASO covering the time period she was not employed

between November 1989 and August 1991, which amounted to

$1,406.17. The circuit court found that during that time,

appellant had "in kind income" of $300 per month based on the

agreement she had at the rooming house, and determined, based on

the guidelines in Code § 20-108.2(B), that her monthly support

obligation for the disputed time period was $32.50. Accordingly,

the court found the total support obligation to be $1,755.72,

rather than the $2,470 determined in the ASO. I. Jurisdiction

DCSE contends that the trial court did not have jurisdiction

to decide appellant's claim, and that, consequently, this Court

does not have jurisdiction to decide this appeal. Although DCSE

did not raise the issue of jurisdiction in the circuit court, a

jurisdictional question may be raised on appeal for the first

time. See Owusu v. Commonwealth, 11 Va. App. 671, 672, 401

S.E.2d 431, 431 (1991).

According to DCSE, the hearing officer was barred under Code

§ 63.1-252.1 from conducting an administrative hearing because

appellant did not file an answer within ten days of receiving

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3 notice of the ASO. Code § 63.1-252.1 provides, in pertinent

part: If no answer is received by the Commissioner within ten days of the date of service or acceptance, the administrative support order shall be as provided in the notice. The Commissioner may initiate collection procedures pursuant to this chapter. . . . If the debtor, within ten days of the date of service of the notice, files an answer, with the Commissioner alleging defenses to the liability imposed pursuant to § 63.1-251, the debtor shall have the right to an administrative hearing.

Id. DCSE contends that the fact that the hearing officer

erroneously granted the appeal does not confer jurisdiction

because hearing officers, like courts, do not have the authority

to extend jurisdiction beyond that created by statute. See Nolde

Bros. v. Chalkley, 184 Va. 553, 560-61, 35 S.E.2d 827, 830

(1945).

"An important consideration in interpreting the meaning of a

statute is whether it is mandatory and jurisdictional or

directory and procedural." Cheeks v. Commonwealth, 20 Va. App.

578, 582, 459 S.E.2d 107, 109 (1995); see also Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638 (1994). Code

§ 63.1-252.1 does not expressly mandate that all appeals of ASOs

be filed within ten days of receiving notice of the ASO. In

contrast, Code § 63.1-268.1, which grants the Juvenile and

Domestic Relations Court jurisdiction over appeals from

administrative hearings, provides that "[s]uch appeal[s] shall be

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4 taken within ten days of receipt of the hearing officer's

decision." Id. (emphasis added). See also Mayo v. Department of

Commerce, 4 Va. App. 520, 523, 358 S.E.2d 759, 761 (1987) ("It is

well settled that `[w]hen the word `shall' appears in a statute

it is generally used in an imperative or mandatory sense'"). The

only mandatory language in Code § 63.1-252.1 provides that the

debtor is entitled to an administrative hearing if he files an

answer within ten days of receiving notice. Although Code § 63.1-252.1 provides that the ASO "shall

become effective unless [contested within ten days]," it does not

create a jurisdictional bar. If the ASO is not contested within

ten days of receipt, DCSE has discretion to conduct an

administrative hearing. Here, DCSE granted an administrative

hearing even though appellant did not file an answer within ten

days of receiving notice of the ASO. Therefore, the trial court

had jurisdiction over appellant's appeal. II. Income

The trial court found that appellant "had no cash income

but in kind income of $300.00 a month in the form of room and

board, which the Court impute[d] to her as actual income pursuant

to VA Code § 20-108.1(B)(3)." Appellant contends the trial court

erred by applying Code § 20-108.1(B)(3) because the record does

not show that she was either "voluntarily unemployed or

underemployed." See Brooks v. Rogers, 18 Va. App. 585, 593, 445

S.E.2d 725, 729 (1994) (holding that the record must contain

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5 evidence sufficient "to support the trial court's implicit and

necessary finding that [the appellant] was either voluntarily

unemployed or underemployed"). We agree that Code

§ 20-108.1(B)(3) does not apply in the present case.

Nonetheless, we affirm the trial court's finding that appellant

had in kind income of $300 per month from November 1989 through

August 1991. See Dziarnowski v. Dziarnowski, 14 Va. App. 758,

762, 418 S.E.2d 724, 726 (1992) ("When a trial court reaches the

correct result for the wrong reason, its judgment will be upheld

on appeal"). Code § 20-108.2(C) defines "gross income" as "all income

from all sources . . . [including] income from salaries [and]

wages." Id. (emphasis added). We construe this broad statutory

language to include nonmonetary as well as cash income. Cf.

Commissioner v. Smith, 324 U.S. 177, 181 (1945) (holding that the

Internal Revenue Code "is broad enough to include in taxable

income any economic or financial benefit conferred on the

employee as compensation, whatever the form or mode by which it

is effected"); Virginia Employment Comm'n v. A.I.M. Corp., 225 Va. 338, 350, 302 S.E.2d 534, 541 (1983) (holding that "wages"

under Code § 60.2-229 includes noncash remuneration). To

construe Code § 20-108.2(C) otherwise would violate the obvious

purpose of the statute and would exclude income paid in a form

other than cash. See Turner v. Commonwealth, 226 Va. 456, 459,

309 S.E.2d 337, 338 (1983) ("the plain, obvious, and rational

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6 meaning of a statute is always to be preferred to any curious,

narrow, or strained construction").

Here, appellant was compensated in the form of room and

board in return for her services of collecting rent and cleaning

vacated rooms. The monthly rental value of the room and board

the appellant received for her services was $300. Therefore, the

trial court did not err in finding that appellant had in kind

income of $300. III. Presumptive Support Obligations

DCSE, pursuant to its administrative policy, imposes a

mandatory minimum support obligation against a parent with income

from $0 to $599 of $65 "and leaves to the judiciary any

determination as to whether this use of the guideline is unjust

or inappropriate in a particular case." The appellant contends

that this policy violates Code §§ 20-108.2 and 63.1-264.2, as

well as federal law. 1 See 42 U.S.C. § 667(b)(2). Because the de

novo hearing before the trial court annulled the judgments of all

the prior proceedings, see Cox v. Cox, 16 Va. App. 146, 148, 428 S.E.2d 515, 516 (1993), we do not rule directly on the propriety

of DCSE's administrative policy. See Hankins v. Virginia Beach,

182 Va. 642, 643-44, 29 S.E.2d 831, 832 (1944) ("It is not the

office of courts to give opinions on abstract propositions of

1 "The Virginia General Assembly amended [Code] § 20-108.2 to mirror the federal law." Richardson v. Richardson, 12 Va. App. 18, 20, 401 S.E.2d 894, 895 (1991).

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7 law, or to decide questions upon which no rights depend, and

where no relief can be afforded"). Nonetheless, we hold that the

trial court correctly applied Code § 20-108.2 and did not err in

determining the appellant's presumptive support obligation.

Code § 63.1-264.2 instructs DCSE to determine the amount of

support obligation arrearage pursuant to the schedule of monthly

child support obligations set forth in Code § 20-108.2. Code

§ 20-108.2(A) provides that [t]here shall be a rebuttable presumption in any judicial or administrative proceeding for child support . . . that the amount of the award which would result from the application of the guidelines set forth in this section is the correct amount of child support to be awarded.

Id. (emphasis added). The schedule of monthly support obligation

establishes a maximum obligation of $65 for persons with combined

monthly gross income between $0 and $599. Code § 20-108.2(B).

"For combined monthly gross income amounts falling between

amounts shown in the schedule, basic child support obligation

amounts shall be extrapolated." Id.; see also Richardson, 12 Va.

App. at 21, 401 S.E.2d at 896 (holding that the trial court must

first compute the presumptive support obligation in accordance

with the guideline set forth in Code § 20-108.2(B)). The clear

import of this language and the guideline scheme is that the

presumptive support obligation shall be proportional to the

debtor's actual gross income. The guideline schedule is not

designed to impose a greater proportional burden of support upon

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8 the most impoverished parent.

Here, the trial court determined that the appellant's

presumptive support obligation under Code § 20-108.2(B) was

$32.50, and in reaching this determination, the court "note[d]

that the presumptive amount of support [was] determined by

extrapolation of the $65 line in [Code § 20-108.2]." This

approach is mandated by Code § 20-108.2. Therefore, the trial

court correctly rejected DCSE's mandatory $65 support obligation

in determining the presumptive support obligation but did not err

in computing the appellant's support obligation at $32.50 per

month. Accordingly, we affirm the trial court's order.

Affirmed.

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