Opinion
Record No. 2270-93-2
Decided: June 7, 1994
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND, Randall G. Johnson, Judge
Affirmed.
(Lawrence D. Diehl, on brief), for appellant.
(Harry P. Anderson, Jr.; Anderson Parkerson, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Grace Hadeed (mother) appeals the decision of the trial court ordering her to pay child support to William Hiner (father). 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. Rule 5A:27.
This matter was previously appealed to this Court. Hiner v. Hadeed, 16 Va. App. ___, 425 S.E.2d 811 (1993). As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Mother raises two issues on appeal: (1) whether the trial court erred in granting father's motion to amend his child support payments based upon the enactment of the shared custody provisions of Code Sec. 20-108.2(G) (3); and (2) whether this Court should reconsider its ruling in Slonka v. Pennline, 17 Va. App. ___, 440 S.E.2d 423 (1994).
Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.
Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988).
I.
The parties correctly note that the primary issue raised on appeal was settled by this Court in Slonka. Specifically, in Slonka we stated:
The sole issue in this appeal is the effect of the 1992 amendment to Code Sec. 20-108.2(G) (3), which establishes a new shared custody guideline category, on a request for modification of an earlier child support award. We hold that a substantive change to the statutory support guideline scheme, when combined with an earlier child support award which varies significantly from the presumptively correct guideline amount, provides sufficient justification for a modification hearing.
17 Va. App. at ___, 440 S.E.2d at 424. While the trial court's decision in this case was issued prior to our decision in Slonka, the trial court relied upon our decision in Milligan v. Milligan, 12 Va. App. 982, 407 S.E.2d 702 (1991), to support its determination that enactment of the shared custody guidelines was sufficient justification to conduct a modification hearing. We do not find that principles of res judicata prohibit father from seeking a modification of his child support obligation upon the enactment of the new shared custody guidelines.
The trial court reviewed the evidence and the statutory provisions and determined that, under Code Sec. 20-108.2(G) (3), mother was obligated to pay father $125 per month. Under the previous award, father was obligated to pay mother $750 per month. We find no error in the decision of the trial court to conduct a modification hearing when the amount of the earlier child support award varied significantly from the amount presumptively correct under Code Sec. 20-108.2(G) (3).
II.
Mother argues that the enactment of the shared custody guidelines in Code Sec. 20-108.2(G) (3) merely set out a methodology for considering custodial arrangements under existing Code Sec. 20-108.1(B) (2), but did not create a new category of custody. We disagree. Both the language of the Code and the effect of its provisions indicate that the 1992 amendment recognized a third type of custody applicable to parents who had custody for more than 110 days a year.
In Slonka, we stated that "the 1992 amendment to Code Sec. 20-108.2(G) created a new category for shared custody arrangements, which significantly changed the earlier guideline considerations and amounts." 17 Va. App. at ___, 440 S.E.2d at 425. In Slonka, the appellant was paying $844 per month in child support, although under the shared custody provisions he would have been obligated to pay $54. Similarly, in this instance, the difference to father was significant, amounting to a net change of $875 per month.
We decline the invitation to revisit Slonka and our interpretation of the effect of the 1992 amendment to Code Sec. 20-108.2(G). In accordance with Slonka, the trial court's decision is not plainly wrong or without evidence to support it. Accordingly, the decision of the trial court is affirmed.
Affirmed.