Opinion
Record No. 0772-92-1
May 18, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK ALFRED W. WHITEHURST, JUDGE.
Mary Keating (Shuttleworth, Ruloff, Giordano Kahle, P.C., on briefs), for appellant.
Debra C. Albiston (Weinberg Stein, on brief), for appellee.
Present: Judges Baker, Barrow, and Benton.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
This appeal arises from an order of the trial judge reducing the amount of child support that the appellant, Frederick Harold Wirth, Jr., was required to pay to the appellee, his former wife, Julia Yuill Wirth. The sole question presented for review is whether the trial judge erred in failing to apply the statutory child support guidelines, see Code § 20-108.2, and in applying the factors that justified a deviation from the guidelines. See Code § 20-108.1. We conclude that the record does not support the claim of error.
The parties were divorced in 1991. The final decree of divorce affirmed, ratified, and incorporated by reference the parties' property settlement agreement. The portions of the agreement pertinent to this appeal required appellant to pay $4,200 per month child support for their three minor children. In addition, appellant agreed to pay (1) college expenses for all their children, (2) health insurance for all the children and the appellee, and (3) policies insuring his life for the benefit of the appellee.
Ten months after entry of the divorce decree, appellant filed a motion for a reduction in child support due to a change in circumstances. The trial judge found from the evidence and theore tenus testimony that the appellant suffered a reduction in income because of various factors related to his practice of medicine. The trial judge further found that the change in appellant's income was a change in circumstances that justified a modification of the child support payments. See Yohay v. Ryan, 4 Va. App. 559, 566, 359 S.E.2d 320, 324 (1987). Upon our review of the record, we conclude that the evidence supports the finding that the appellant experienced a change in circumstances that justified a modification of the child support payments.
In Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473 (1991), this Court stated that "[t]he 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)." Based upon the evidence presented at the ore tenus hearing, the trial judge determined that the presumptive amount of child support was $1,880. Neither party argues that the trial judge's finding concerning the presumptive amount is reversible error. The disputed issue is the trial judge's deviation from the presumptive amount by application of the factors specified in Code § 20-108.1(B). The trial judge's opinion letter acknowledged that various factors had been considered, including the terms of the property settlement agreement. That recognition is consistent with this Court's holding inWatkinson:
Once a trial court determines the presumptive amount, it does not decide whether that amount is "unjust or inappropriate" without considering the amount in relation to the factors set forth in Code §§ 20-107.2 and 20-108.1. While a particular amount may appear to be "just and appropriate" on its face, when considered in comparison to what the parties have agreed upon, and in relation to other extraneous circumstance, the presumptive amount may be unjust or inappropriate. The court may vary from the guidelines by considering any relevant evidence which pertains to the factors set forth in Code §§ 20-107.2 and 20-108.1, which factors may be reflected in the child support or other provisions of an agreement which indirectly benefit a child.
We hold that where parents have agreed upon an amount, or agreed upon other provisions, for the support and maintenance of a child, the trial court must consider the provisions of the agreement, that relate to the factors in Code §§ 20-107.2 and 20-108.1, in deciding whether the presumptive amount would be unjust or inappropriate in a particular case. In so doing, the trial court must consider whether the agreed provisions for the child would better serve the interest or "equities" for the parents and children. 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 alternate sum after the presumptive amount has been rebutted, ordering the amount agreed upon between the parents, or approving, ratifying and incorporating, in whole or in part, the child support provisions of a contract. Furthermore, we hold that if the trial court finds that the presumptive amount is unjust or inappropriate because the provisions in a separation agreement serve the best interest of the child, the court may vary from the guidelines by ordering support be paid in an amount equal to the benefits provided for in the contract.
13 Va. App. at 158-59, 409 S.E.2d at 474.
The trial judge considered factors under Code §§ 20-107.2 and 20-108.1. Although the trial judge did not make a specific calculation showing the precise allocation of dollars to the factors used to calculate the deviation, the trial judge made specific reference in paragraph two to the major issue of contention between the parties — the private school tuition for the children. The amount of deviation has a rational correlation to the amount proved for the tuition payment. Based upon our review of the record and the rationale stated in the trial judge's opinion letter, we conclude that the record supports the deviation from the presumptive amount of child support. Accordingly, we conclude that the trial judge did not err in refusing to order a greater reduction in appellant's child support payments.
Affirmed.