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Myers v. Myers

Court of Appeals of Virginia
Sep 20, 1994
Record No. 0330-94-2 (Va. Ct. App. Sep. 20, 1994)

Opinion

Record No. 0330-94-2

Decided: September 20, 1994

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY, Herbert C. Gill, Jr., Judge

Affirmed.

(William B. Cave; Felton Cave, on briefs), for appellant.

(John N. Clifford; Vera Duke; Clifford Duke, on brief), for appellee.

Present: Judges Barrow, Koontz and Bray


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Dwight M. Myers, Jr., (father) appeals the decision of the circuit court setting child support payments to Colleen A. Myers (mother) above those required under Code Sec. 20-108.2. 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.

[W]e 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.

Martin v. Pittsylvania Dep't of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).

Under Code Sec. 20-108.1, "there shall be a rebuttable presumption in any . . . proceeding for child support . . . that the amount of the award which would result from the application of the guidelines set out in Sec. 20-108.2 is the correct amount of child support to be awarded." Code Sec. 20-108.1(B). The presumption may be rebutted if the court finds, in writing, "that application of such guidelines would be unjust or inappropriate in a particular case." Id. Those findings "shall be determined by relevant evidence pertaining to the [statutory] factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child." Id. Among the statutory factors which the court may consider in either increasing or decreasing the child support award are: "Age, physical and mental condition of the child or children, including extraordinary medical or dental expenses, and child-care expenses;" and "[a] written agreement between the parties which includes the amount of child support." Id. at (B) (8) and (B) (16).

In its January 25, 1994 order, the trial court noted that it had not previously considered the Code Sec. 20-108.2 guidelines in setting the parties' child support obligations. Under the guidelines, father would pay $1,064.00 a month in child support. The court then made the following written findings:

The court finds that the guidelines amount should be adjusted as follows:

The Court finds that [mother] elected to open her own business so that the mentally retarded child of the parties could stay with [mother] at her place of business. The Court finds that plaintiff set up this arrangement to avoid large child care expenses for the mentally retarded child. The Court also finds that [mother] detrimentally relied on the amount of child support agreed to by the parties in the Property Settlement Agreement when she decided to start her own business. Therefore, the Court finds that the Guideline amount is unjust and not in the best interest of the child and will adjust the amount of support by increasing the defendant's obligation by $500.00 per month.

The trial court's written findings that the guideline amount of child support was unjust and not in the best interests of the parties' child is supported by evidence. Contrary to father's contention, the factors explicitly cited by the court fall within those prescribed by Code Sec. 20-108.1.

The evidence produced before the court established that the parties' eldest daughter, while able to attend public school and without special medical needs, will remain the mental equivalent of a six-year-old child and will need both supervision and financial support beyond the age of eighteen. Mother testified she decided to open her own business, rather than earning more income by working for someone else, so that she could also provide economical and flexible supervision for the parties' children. Mother's decision to forego higher income in order to diminish child care expenses, particularly for the parties' eldest daughter, is a cost to mother, and falls within the statutory factors which the court may consider in order to rebut the guidelines' presumptively correct amount of child support.

Similarly, the record demonstrates that father was ordered to pay pendente lite child support of $500.00 a week pursuant to a decree entered on November 21, 1990. This amount was later memorialized in the parties' settlement agreement entered into on January 20, 1993, which was incorporated by reference into the court's March 19, 1993 decree. Thus, father was paying $500.00 a week in child support since late 1990. Therefore, we cannot say the trial court's finding that mother relied upon the amount of child support agreed to in the parties' settlement agreement when she decided to open her own business was clearly erroneous.

The trial court followed the statutory procedures in determining father's support obligation. The court considered the evidence and arguments presented by the parties, and determined that the guideline amount would be unjust and not in the children's best interests. The court's decision to deviate from the guideline amount is not plainly wrong or unsupported by the evidence.

Accordingly, the decision of the circuit court is affirmed.

Affirmed.


Summaries of

Myers v. Myers

Court of Appeals of Virginia
Sep 20, 1994
Record No. 0330-94-2 (Va. Ct. App. Sep. 20, 1994)
Case details for

Myers v. Myers

Case Details

Full title:DWIGHT M. MYERS, JR. v. COLLEEN A. MYERS

Court:Court of Appeals of Virginia

Date published: Sep 20, 1994

Citations

Record No. 0330-94-2 (Va. Ct. App. Sep. 20, 1994)