Deborah C. Sproles v. Robert K. Lowry, IV ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Elder
Argued at Salem, Virginia
DEBORAH C. SPROLES
MEMORANDUM OPINION * BY
v. Record No. 0134-98-3 JUDGE SAM W. COLEMAN III
JANUARY 12, 1999
ROBERT K. LOWRY, IV
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles B. Flannagan, II, Judge
Charles F. Lincoln for appellant.
B.L. Conway, II (Conway & Conway, L.L.C. on
brief), for appellee.
Deborah C. Sproles appeals an order from the circuit court
requiring Robert K. Lowry, IV, to pay $219.21 per month in child
support for his son, Isaac Lowry. The parties stipulated that
Lowry was entitled to a $157 "credit" for support of a child from
a previous marriage. Sproles contends that the circuit court
erred by deducting the $157 after calculating Lowry's presumptive
amount from the statutory guidelines. Sproles argues that the
court should have "credited" the $157 against Lowry's monthly
income before calculating the presumptive child support
obligation. Based on the procedural posture of the case, and the
manner in which the issues were presented to the trial judge, we
affirm the support award.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
BACKGROUND
On November 20, 1991, the circuit court ordered Lowry to pay
$260 per month in child support. The court arrived at the amount
by calculating the presumptive amount of child support, according
to the statutory guidelines, and then deducting $159 per month to
adjust for Lowry's support of a child from a previous marriage.
Neither party objected to this calculation and the record
suggests, although it is not entirely clear, that they agreed to
a $159 "credit" then, as they later did in the proceeding before
us on appeal.
On June 30, 1997, Sproles moved the juvenile and domestic
relations court to modify the prior support order based on
changed circumstances. At the modification hearing, the parties
stipulated to their gross monthly incomes, work-related child
care expenses and the $157 credit to Lowry for support of the
other child. 1 The juvenile and domestic relations court found
that circumstances had changed and, in calculating the support
award, deducted the $157 credit from Lowry's monthly gross income
before calculating the presumptive amount of child support from
the guidelines. Lowry appealed to the circuit court. In the
circuit court, the parties stipulated to the figures and
submitted the case to the court on the sole issue of whether
under Code § 20-107.2 the stipulated amount for a "credit" for
1
The record does not explain why the parties agreed upon a
$157 credit in 1997, when the credit in 1991 was $159.
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child support to the other child should be deducted from gross
income or from the presumptive child support amount. The trial
court held that under the statute any deviation should be from
the guidelines amount, not from the gross income. The appellant
argues that the trial court erred and asserted at oral argument
that the Washington County Juvenile and Domestic Relations
District Court routinely uses the approach of adjusting gross
income.
ANALYSIS
"``Code § 20-107.2(2) vests discretion in the trial court in
awarding child support and such awards will not be reversed on
appeal unless plainly wrong or unsupported by the evidence.'"
Auman v. Auman, 21 Va. App. 275, 277, 464 S.E.2d 154, 155 (1995)
(quoting Young v. Young, 3 Va. App. 80, 81, 348 S.E.2d 46, 47
(1986)).
The statute creates a rebuttable presumption that adherence
to the guidelines produces a just and appropriate child support
award. Code § 20-108.2(A). Here the parties stipulated that the
amount for which Lowry would be granted a "credit" to adjust for
the support of the other child would be $157. The parties
disagree as to how the court should have applied that "credit."
We disagree with Sproles that pursuant to the statute or the
stipulation the court should have deducted the credit from
Lowry's gross income.
The starting point for a trial court in
determining the monthly child support
obligation of a party is the amount as
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computed by the schedule found in Code
§ 20-108.2(B). . . . No additions or
subtractions from the gross income, as
defined in Code § 20-108.2(C), even if
otherwise valid considerations, may be made
before this figure is determined.
Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896
(1991). Thus, under the statute it would have been an abuse of
discretion for the juvenile and domestic relations court to
subtract the stipulated "credit" from the gross income prior to
calculating the presumptive amount.
On the other hand, the trial court did not abuse its
discretion under the statute by subtracting the $157 stipulated
"credit" from the presumptive guideline support amount. As
Richardson makes clear, the court may deviate from the guidelines
as long as the court bases the deviation on the factors in Code
§§ 20-107.2 and 20-108.1. See id. "Actual monetary support for
other children, other family members or former family members" is
one of the factors that a trial court may consider in deciding
whether to deviate from the guidelines. Code § 20-108.1(B)(1).
See Farley v. Liskey, 12 Va. App. 1, 3-4, 401 S.E.2d 897, 898-99
(1991).
Although the circuit court would normally consider the full
amount of support paid for another child in determining how much
to deviate, the trial court did not err in accepting the
stipulated amount of $157, which had similarly been applied
between 1991 and 1997, as the amount by which the presumptive
award would be modified. The trial judge did not abuse his
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discretion by accepting the parties' stipulation, although he was
not bound by it. When a trial judge determines that the best
interest of the child would be served by rejecting the
stipulation, a trial judge has the discretion to adjust or
disregard a "credit" to which the parties stipulated. See Kaplan
v. Kaplan, 21 Va. App. 542, 548, 466 S.E.2d 111, 114 (1996).
Here, neither party requested the circuit court judge to take
such action, and he did not do so sua sponte. Likewise, on
appeal, neither party argues that the circuit court abused its
discretion by accepting $157 as the amount of the "credit." The
only issue before us, therefore, is whether the trial court erred
in deducting the stipulated "credit" after, instead of before,
calculating the presumptive amount of support. Because the
circuit court was correct under Code § 20-107.2 in deducting the
credit from the presumptive amount of child support, we affirm
its support award.
Affirmed.
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