Janet Susan Boyd Looney v. Teddy Russell Looney ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia
JANET SUSAN BOYD LOONEY
OPINION BY
v. Record No. 0802-99-3 JUDGE MARVIN F. COLE
APRIL 4, 2000
TEDDY RUSSELL LOONEY
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge
Robert M. Galumbeck (Dudley, Galumbeck &
Necessary, on brief), for appellant.
S. T. Mullins (Street, Street, Street,
Scott & Bowman, on brief), for appellee.
Janet Susan Boyd Looney (mother) appeals the decision of the
circuit court awarding her child support in an amount which
deviated from the statutory child support guidelines contained in
Code § 20-108.2(B). The trial court ordered Teddy Russell Looney
(father) to pay $200 in child support pursuant to the terms of the
parties' Separation and Property Settlement Agreement (agreement).
Mother contends on appeal that the trial court erred by failing to
award the presumptive guideline support amount of $548. We find
that the trial court did not err when it deviated from the
statutory guidelines. Accordingly, we affirm the decision of the
trial court.
The evidence was received by the trial court ore tenus.
On review, we consider the evidence in the
light most favorable to the party prevailing
in the trial court. Where the trial court's
decision is based upon an ore tenus hearing,
its determination will not be disturbed on
appeal unless it is plainly wrong or without
evidence in the record to support it.
Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28,
30 (1989). The record on appeal includes a written statement of
facts setting out the evidence presented below.
On June 6, 1997, the parties executed a written agreement
under which father agreed to pay $200 in monthly child support
for the parties' two minor children. Father agreed to pay
support until the older child reached the age of twenty-two, at
which time the parties agreed father would pay $100 in monthly
support. Both parties waived spousal support, although mother
agreed to provide health insurance coverage for father for three
years as long as she was covered through her employment. Father
was required to pay the cost of any additional premiums. Under
their agreement to split certain jointly owned real estate,
mother received the marital residence and an adjacent piece of
property, while father received a parcel of property near the
Grundy Airport. The parties waived all interest in the other's
retirement benefits and agreed to their current division of
personal property. Mother also waived any interest in three
companies in which father was a part owner.
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Mother filed her bill of complaint on December 24, 1997,
seeking a divorce on the ground that the parties had lived
separate and apart in excess of one year. See Code
§ 20-91(A)(9). In her bill of complaint, mother asked the trial
court to ratify, approve and confirm the agreement into its
decree. Father admitted the allegations set out in mother's
complaint and also asked the court to ratify the agreement into
its final decree.
By notice filed April 1, 1998, mother indicated that she
was seeking child support pursuant to the Code § 20-108.2
guidelines rather than the amount set out in the parties'
agreement.
The trial court held an evidentiary hearing on May 29,
1998. As set out in the written statement of facts approved by
the trial court, mother testified that she agreed to the reduced
amount of child support because father told her that his monthly
income had decreased to no more than $1,200. However, when
father subsequently purchased a motorcycle and made changes to
his house, mother believed he was earning more than he had
disclosed. Mother admitted the marital residence she received
under the agreement was worth approximately $70,000 and that her
retirement account contained about $30,000. She estimated that
the airport property received by father was worth about $10,000
and that father's retirement account contained about $4,000.
Mother agreed it was possible that at least one of father's
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companies had debts exceeding its assets. Mother testified that
she earned $60,000 annually in her new job.
Mother stated that the terms of the property settlement
were not a factor in the agreement as to child support and that
she agreed to the reduced child support amount solely because
father represented that he could not pay more per month. On
cross-examination, however, mother admitted the terms of the
agreement were dependent on the others and she would not have
agreed to the child support amount absent the other terms.
Father presented evidence that his income in 1997 was
$30,277. He testified that he assumed additional personal debt
in January 1998 to purchase a piece of heavy equipment. He also
testified that he purchased the motorcycle on credit and
performed the work around his home himself. Father testified
that he viewed the terms of the agreement as dependent on each
other. He would not have waived spousal support and his right
to mother's retirement benefits while agreeing to support the
older child past his majority without the agreement as to child
support.
The trial court found that there had been no substantial
change in father's income after the agreement was executed. The
court also found that agreement as to child support was an
integral part of the parties' entire agreement, including father's
agreement to pay support beyond the older child's majority.
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We find no error in the trial court's determination that
the circumstances warranted a downward deviation from the
presumptive amount of child support.
"In determining child support, there is a
rebuttable presumption that the amount
determined in accordance with the statutory
guidelines, Code § 20-108.2, is the correct
award." Should the trial judge conclude
that "application of [such] guidelines would
be unjust or inappropriate in a particular
case as determined by relevant evidence
pertaining to the factors set out in
§§ 20-107.2 and 20-108.1," the court may
depart from the statutory schedule, provided
the attendant order adequately explains the
deviation.
Cooke v. Cooke, 23 Va. App. 60, 63, 474 S.E.2d 159, 160 (1996)
(citations omitted).
The trial court determined the presumptively correct amount
of child support pursuant to Code § 20-108.2(B). See Richardson
v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991).
The court then enumerated the factors it considered before
concluding that the circumstances of this case warranted a
deviation from the statutory guidelines. See Code § 20-108.1.
The court specifically found that the agreement protected the best
interests of the children.
The trial court complied with the statutory requirements, and
its conclusion has evidentiary support. Therefore, we find no
reversible error.
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Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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