Opinion
Record No. 1152-92-1
April 20, 1993
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE RUSSELL I. TOWNSEND, JR., JUDGE.
(Donald C. Grey; Mercer, Grey Arsenault, on briefs), for appellant.
(James W. Parker, on brief), for appellee.
Present: Judges Barrow, Moon and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that the appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
William D. Hogge appeals a decision of the trial court increasing the amount of child support he pays for his daughter, Sarah Ashley. The trial court computed the amount presumed due under the child support guidelines contained in Code § 20-108.2 and ordered Hogge to pay his share of that amount. Hogge contends that his monthly payment should have been significantly reduced upon consideration of the factors set forth in Code §§ 20-107.2 and 20-108.1.
Under the statutory scheme established by the General Assembly in 1989, a trial court, in setting child support, must first compute the amount due under the guidelines set forth in Code § 20-108.2(B). Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991). There is a rebuttable presumption that this sum is the correct amount of support due. Hiner v. Hadeed, 15 Va. App. ___, ___, ___ S.E.2d ___, ___ (1993). The court may then consider evidence regarding the factors set forth in Code §§ 20-107.2 and 20-108.1 in deciding whether to increase or decrease the guideline amount. Any deviation from this amount must be supported by written findings stating why application of the guidelines would be unjust or inappropriate. Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). When the trial court sets the guideline amount, "it is assumed that the court acted reasonably and the burden rests upon the challenging party to show to the contrary." Conway v. Conway, 10 Va. App. 653, 658, 395 S.E.2d 464, 467 (1990).
On appeal, the evidence is reviewed in the light most favorable to the prevailing party below, giving that party's evidence the benefit of all reasonable inferences fairly deducible therefrom.Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990). "The judgment of the trial court sitting in equity, when based on evidence heard ore tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it."Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). Code § 20-107.2 gives the trial court discretion in making child support awards and such decisions will not be disturbed on appeal unless plainly wrong or unsupported by the evidence.Young v. Young, 3 Va. App. 80, 81, 348 S.E.2d 46, 47 (1986).
Hogge, pursuant to agreement of the parties, had been paying $150 for Sarah Ashley's support since 1982. Sharon L. Hogge, Sarah Ashley's mother, petitioned for a larger monthly sum, citing higher living expenses, increased needs of the child, inflation, and Hogge's greater earning capacity. Hogge opposed the petition on the grounds that he has a new family with two children and a single income, that he cannot afford to pay more, and that Sarah Ashley has no need for additional support in view of the fact that she and her mother live with her grandparents. The court heard evidence ore tenus. In a letter opinion, the court ruled:
The Court concludes the presumptive sum should not be reduced. . . . The Court has given particular consideration to the factors contained in Code Section 20-108.1.B. Subparagraphs 1, 2, 6, 11, 13 and 16. In the opinion of the Court, the evidence does not rebut the presumptive award the Court is required to make absent a finding that application of the guidelines would be unjust or inappropriate. Furthermore, the Court concludes that limiting child support to a lesser sum by reason of any agreement of the parties would be unfair to the child and not in her best interest.
Hogge argues that the court did not treat this case on an individual basis but automatically applied the guidelines without looking at the facts of this case. He also asserts that the court did not provide adequate findings of fact as required by Code § 20-108.2(A) and case law. See, e.g., Richardson, 12 Va. App. at 21-22, 401 S.E.2d at 896. However, the requirement of written findings is applicable only "[w]henever a child support award varies from the guidelines." Id. at 21, 401 S.E.2d at 896. Further, the trial court heard evidence on and considered all the relevant factors in reaching his conclusion. We cannot say that its decision was plainly wrong or without evidence to support it. Young, 3 Va. App. at 81, 348 S.E.2d at 47.
An agreement between the parents cannot prevent the court from modifying a support award. Alexander v. Alexander, 12 Va. App. 691, 695, 406 S.E.2d 666, 668 (1991). Enactment of the guidelines is reason in itself to consider modifying a prior award, even without other material change, if there is a significant difference between the guidelines and the court's prior decree. Milligan v. Milligan, 12 Va. App. 982, 988, 407 S.E.2d 702, 705 (1991). The court, after establishing the guideline amount, must consider whether the amount agreed on by the parents would better serve the interests of the parties, parents and child, with the best interests of the child being the paramount principle. Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 474 (1991). In this case, the court followed this procedure and determined that the guideline amount was more appropriate than the amount agreed to by the parties ten years ago. Its decision was not plainly wrong or unsupported by the evidence. Young, 3 Va. App. at 81, 348 S.E.2d at 47.
For the reasons stated, we affirm the trial court's decision.
Affirmed.