Gary M. Zientek v. Francine Y. Zientek ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia
GARY M. ZIENTEK
MEMORANDUM OPINION * BY
v. Record No. 1358-97-2 JUDGE LARRY G. ELDER
MARCH 3, 1998
FRANCINE Y. ZIENTEK
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L. A. Harris, Jr., Judge
Andrea R. Stiles (Williams, Mullen,
Christian & Dobbins, P.C., on briefs), for
appellant.
Janet E. Brown for appellee.
Gary M. Zientek ("father") appeals an order of the trial
court granting his motion to modify his child support obligation
to Francine Y. Zientek ("mother"). He contends that the trial
court abused its discretion when it (1) reduced his child support
obligation to an amount that exceeded the presumptively correct
amount set forth by Code § 20-108.2 and (2) declined to make this
reduction retroactive to the date that mother was served with
notice of his motion. For the reasons that follow, we affirm.
I.
DEVIATION FROM THE PRESUMPTIVELY CORRECT AMOUNT OF CHILD SUPPORT
When determining a party's child support obligation at a
modification hearing, "the court must begin by computing the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
presumptive amount using the schedule found in Code
§ 20-108.2(B)." Head v. Head, 24 Va. App. 166, 178, 480 S.E.2d
780, 786 (1997). "The presumptive amount is rebuttable, however,
and the court may deviate from the presumptive amount if such
amount is unjust or inappropriate." Watkinson v. Henley, 13 Va.
App. 151, 158, 409 S.E.2d 470, 473-74 (1991); see also Code
§§ 20-108.1, 20-108.2. If the presumptive amount is found to be
unjust or inappropriate, "any variation from that amount must be
calculated by adding or subtracting a just and appropriate amount
from the presumptive amount reflected in Code § 20-108.2, and not
to or from a previously determined child support award."
Richardson v. Richardson, 12 Va. App. 18, 19, 401 S.E.2d 894, 895
(1991); see also Watkinson, 13 Va. App. at 158, 409 S.E.2d at
474.
Whenever a child support award varies
from the guidelines, Code § 20-108.2(A)
requires the trial court to make written
findings of fact "as determined by relevant
evidence pertaining to the factors set out in
Code §§ 20-107.2 and 20-108.1" explaining why
one or more of these factors would make it
"unjust or inappropriate" to apply the
guidelines to the case.
Richardson, 12 Va. App. at 21-22, 401 S.E.2d at 896; see also
Code §§ 20-108.1, 20-108.2.
[T]o rebut the presumption of correctness of
the guidelines, a trial court must make
written findings of enough detail and
exactness to allow for effective appellate
review of the findings. Specifically, these
findings must identify the factors that
justified deviation from the guidelines, and
explain why and to what extent the factors
justified the adjustment.
2
Richardson, 12 Va. App. at 22, 401 S.E.2d at 897; see also
Solomond v. Ball, 22 Va. App. 385, 391, 470 S.E.2d 157, 159-60
(1996); Pharo v. Pharo, 19 Va. App. 236, 238, 450 S.E.2d 183, 184
(1994).
"If the applicability of the factors is supported by the
evidence and the trial judge has not otherwise abused his or her
discretion, the deviation from the presumptive support obligation
will be upheld on appeal." Richardson, 12 Va. App. at 21, 401
S.E.2d at 896.
We hold that the trial court did not abuse its discretion
when it reduced father's child support obligation to an amount
that still exceeded the presumptively correct amount under Code
§ 20-108.2. The trial court followed the procedural requirements
of Code §§ 20-108.1 and 20-108.2, and its decision to deviate
from the guidelines is supported by evidence in the record.
First, the trial court followed the procedures required by
Code §§ 20-108.1 and 20-108.2. The trial court began by
determining the current presumptively correct amount of father's
child support obligation. Based on the parties' testimony
regarding their new custody arrangement, the trial court
concluded that the shared custody rules of Code § 20-108.2(G)(3)
1
applied to this case. It accepted father's calculation that the
1
Mother argues that the trial court erred when it concluded
that the shared custody rules applied to this case. Although
mother did not file either a notice of appeal or an opening
brief, this argument is preserved for our review because mother
complied with Rules 5A:21(b) and (e) in presenting this question
and specifying the relief sought. See D'Auria v. D'Auria, 1 Va.
3
presumptively correct amount of his child support obligation
under the shared custody rules was $1,773 per month. 2 It then
concluded that the presumptively correct amount of father's
support obligation was not "appropriate" and explained its
decision by referring to several of the statutory factors.
Although the trial court's explanation of its deviation from the
presumptively correct amount is brief, when read in context with
the record, it is sufficiently detailed and exact to allow for
effective appellate review. Richardson, 12 Va. App. at 22, 401
S.E.2d at 897. Although the trial court stated in its reasoning
App. 455, 460-61, 340 S.E.2d 164, 167 (1986). Nevertheless, we
disagree with mother's contention. Under Code § 20-108.2(G)(3),
the shared custody rules apply "when each parent has physical
custody of [their child or children] for more than 110 days of
the year." Pursuant to the parties' new custody arrangement,
father is entitled to custody of the children for "114 24-hour
periods over the year." Despite the evidence in the record
regarding father's history of missed visitation, we conclude that
the evidence regarding their new arrangement was sufficient to
support the trial court's conclusion that father now has physical
custody of the children for at least 110 days per year.
2
We disagree with father's argument that the trial court was
required to calculate the presumptively correct amount of child
support under Code § 20-108.2(G)(1) in addition to Code
§ 20-108.2(G)(3). Code § 20-108.1 only requires a trial court to
calculate "the amount of the award which would result from the
application of the guidelines set out in § 20-108.2." Code
§ 20-108.2(G) sets forth formulas to calculate the presumptively
correct amount of support for three different factual scenarios:
sole custody, split custody, and shared custody. In order to
satisfy the mandate of Code § 20-108.1, the trial court need only
apply the formula among the three listed in Code § 20-108.2(G)
that actually applies to the case at hand. Cf. Pharo, 19 Va.
App. at 238-39, 450 S.E.2d at 184-85. In this case, the trial
court determined that the parties shared custody of the children.
As such, it did not err when it calculated the presumptively
correct amount of child support by applying only the shared
custody formula and no other.
4
that "a reduction of $500 per month in [father's] child support
is appropriate," the trial court's overall methodology indicates
that it calculated its award by adding to the presumptively
correct amount rather than by subtracting from the prior award.
In addition, the trial court's decision to deviate from the
guidelines is supported by the evidence in the record. The trial
court reasoned that its decision to order father to pay more than
the presumptively correct amount was justified by (1) the
standard of living established by the family during the marriage,
(2) father's prior record of not exercising his full visitation
with the children, and (3) the amount of child support to which
the parties agreed in their separation agreement.
Regarding the family's standard of living during the
marriage, 3 the record established that, during the year prior to
the parties' divorce, father's annual income was $274,794.96
while mother had no income and apparently "stay[ed] at home with
the children." Mother testified that she "presently enjoys a
standard of living slightly less than what she enjoyed when the
parties were married." She also testified that a reduction in
the amount of father's child support obligation would force her
to either move to a new home or seek outside employment. This
evidence supports the trial court's conclusion that setting
3
Under Code § 20-108.1(B)(10), the "[s]tandard of living for
the family established during the marriage" is a factor that a
trial court may consider when determining whether the presumptive
amount of child support is unjust or inappropriate.
5
father's child support obligation above the presumptively correct
amount was necessary to ensure that mother and the children would
continue to enjoy the relatively high standard of living
established by the family during the marriage.
Regarding the parties' arrangements for custody of the
children, 4 the record established that father had yet to exercise
all of the visitation allowed to him under the parties'
agreements. Specifically, father had yet to exercise "the full
two week summer vacation." Mother also testified that father
"had taken two to three week-long trips without the children in
the past 12 months [and] . . . did not make up the visitation
missed due to those trips." Although father testified that he
intended to exercise all of his visitation in 1997, the evidence
that mother historically has had additional, unplanned days of
custody of the children supports the trial court's decision to
require father to pay more child support than the presumptively
correct amount under the shared custody rules.
Regarding the parties' separation agreement, we agree with
father that the evidence in the record regarding this factor does
not support the trial court's decision to deviate upward from the
5
presumptively correct amount. Because the amount of child
4
Under Code § 20-108.1(B)(2), "[a]rrangements regarding
custody of the children" is another factor that the trial court
may consider when determining whether to deviate from the
presumptively correct amount.
5
Under Code § 20-108.1(B)(16), any "written agreement
between the parties which includes the amount of child support"
is yet another factor that the trial court may consider when
6
support set forth in the parties' agreement did not constitute a
significant deviation from the presumptively correct amount at
the time of their divorce, it does not follow that the agreement
justifies a substantial upward deviation at a later point in
time. However, despite this deficiency in the trial court's
analysis, we conclude that the evidence in the record regarding
the other two factors was more than sufficient to support the
trial court's decision to award mother an amount of child support
that was $727 more than the presumptively correct amount. As
such, we cannot say that the trial court's decision was an abuse
of discretion.
II.
RETROACTIVE APPLICATION OF REDUCED CHILD SUPPORT OBLIGATION
Father contends that the trial court abused the discretion
afforded to it under Code § 20-112 when it declined to make its
modification of his child support obligation retroactive to the
date that mother received notice of his motion. We disagree.
We hold that the trial court did not err when it decided
that the modification of father's child support obligation would
take effect on May 1, 1997. Under Code § 20-112, an order to
decrease child support "may be modified with respect to any
period during which there is a pending petition for modification,
but only from the date that notice of such petition has been
deciding whether a deviation from the presumptively correct
amount is justified. See also Watkinson, 13 Va. App. at 158, 409
S.E.2d at 474.
7
given to the responding party." Within the statutory limits,
determining the effective date of a modification in support is
committed to the sound discretion of the trial court. In this
case, mother was served with notice of father's motion on
February 10, 1997. On April 28, 1997, the trial court ordered
that the reduction in father's child support obligation take
effect three days later, on May 1, 1997. Nothing in the record
indicates that this decision was an abuse of discretion.
For the foregoing reasons, we affirm the order of the trial
court reducing father's child support obligation.
Affirmed.
8