Opinion
Record No. 1032-92-1
September 28, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS ROBERT W. CURRAN, JUDGE.
William H. Hurd, for appellant.
Paul H. Wilson (Wilson Wilson, on brief), for appellee.
Present: Judges Baker, Willis and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
James J. DeFebo (husband) was ordered by the trial court to pay $700 per month child support to his former wife, Janice L. Defebo-Carpini (wife), "exclusive from and in addition to" social security benefits the wife received for the children as a result of husband's disability. Husband appeals, arguing that these benefits should have been included in his "gross income" in computing support to the children pursuant to Code § 20-108.2 and credited to his statutory support obligation. We disagree, but, because the trial court included the benefits in the wife's gross income, we reverse the judgment.
It is uncontroverted that these monies were paid to the wife, as custodial parent, for the benefit of the children.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issues on appeal.
By order of the trial court dated June 7, 1989, husband was required to pay wife $700 per month as support for their two infant children. This order made no specific reference to the social security benefits now in issue. On April 16, 1991, husband petitioned the court to reduce the obligation, alleging a change in circumstances. Following an ore tenus hearing, the trial court denied the husband's prayer and, once again, ordered that he pay $700 per month child support, "exclusive from and in addition to any Social Security benefits received by [wife], due to the disability of [husband], for the benefit of the infant children of the marriage." It is from this order that the husband now appeals.
To warrant modification of a "child support obligation set by a trial court prior to July 1, 1989, the date after which trial courts were required to presume that the support payments dictated by Code § 20-108.2 are the correct amounts to be awarded," the moving party must prove either a "material . . . change of circumstances" or a "'significant variance' between the presumptive amount of child support under Code § 20-108.2 and the amount originally awarded by the trial court."O'Brien v. Rose, 14 Va. App. 960, 963, 420 S.E.2d 246, 248 (1992); see Milligan v. Milligan, 12 Va. App. 982, 988, 407 S.E.2d 702, 705 (1991). The "moving party has the burden of proving a material change by a preponderance of the evidence."Crabtree v. Crabtree, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1993).
Thus, in addressing the husband's petition to modify, the trial court must begin by computing the "presumptive amount [of child support] using the schedule found in Code § 20-108.2(B)."Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473 (citing Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991)). The "combined monthly gross income" of the parents is a component in the statutory formula and includes "all income from all sources" with the exception of, inter alia, "child support received." Code § 20-108.2(C). Clearly, the social security benefits in issue are received by wife only for support of the children in her physical custody and do not constitute gross income to either parent within the intendment of Code § 20-108.2. The trial court, therefore, miscalculated the basic child support obligation of both parties.
Once the presumptive amount of support has been correctly ascertained, the court may find it "unjust or inappropriate . . . as determined by relevant evidence pertaining to the factors set out in §§ 20-107.2 and 20-108.1." Code § 20-108.2(A);Watkinson, 13 Va. App. at 158, 409 S.E.2d at 474. Under such circumstances, a departure is permissible,
provided the judge makes written findings explaining why an award in an amount under the guidelines would be unjust and inappropriate and explaining what factors the judge considered under Code § 20-107.2 [and Code § 20-108.1] in making a non-conforming award.
Hiner v. Hadeed, ___ Va. App. ___, ___, 425 S.E.2d 811, 814 (1993); Code §§ 20-108.1(B), 20-108.2(A).
Here, on remand, the trial court may find a deviation from the guidelines appropriate after considering the social security resources available to the children and other factors and adjust the support obligations of both parents. Such deviation, however, must comport with statute. See Code §§ 20-108.1(B), 20-108.2(A).
Accordingly, the judgment of the trial court is reversed, and the case is remanded for redetermination of child support.
Reversed and remanded.