Marc A. Pederson v. Pamela L. Pederson ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued by teleconference
MARC A. PEDERSON
MEMORANDUM OPINION * BY
v. Record No. 2070-97-4 JUDGE JERE M. H. WILLIS, JR.
APRIL 28, 1998
PAMELA L. PEDERSON
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Barnard F. Jennings, Judge Designate
Marc A. Pederson, pro se.
John R. Powell (Pamela L. Pederson, pro se,
on brief), for appellee.
Marc A. Pederson (the father) appeals the trial court's
denial of his petition to modify child support. He contends that
the trial court erred: (1) by failing to enforce the terms of
the parties' parenting agreement; (2) in denying his motion
because he did not submit a statement of his income and expenses;
(3) in failing to impute income to Pamela L. Pederson (the
mother); and (4) in denying his motion to reconsider. We affirm.
I.
The parties executed a parenting agreement, which provides,
in part:
[The mother] and [the father] agree that
[the mother] shall continue to work
part-time. At their annual meeting in May,
1998 they will discuss the feasibility of her
resuming full-time employment. Whenever [the
mother] actually resumes full-time
employment, they agree to recalculate their
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
child support obligations according to the
Guidelines.
This agreement was incorporated into the parties' final decree of
divorce which was entered on December 23, 1996. The decree
awarded the parties joint legal and physical custody of their
three minor children, and calculated child support based upon the
mother's income from part-time employment.
In February, 1997, the mother informed the father that she
intended to resume working full-time and in March, 1997, she
resumed a full-time schedule. On March 21, 1997, the father
filed a motion seeking modification of child support based upon
the mother's resumption of full-time employment. Despite
attempts at mediation, the parties were unable to reach an
agreement on the amount of support. On April 25, 1997, the
father renewed his motion.
On June 12, 1997, the mother returned to part-time work. On
June 20, 1997, the father moved the trial court to calculate
child support using the mother's full-time income.
On July 31, 1997, the trial court conducted a hearing, ore
tenus, on the father's motion for modification of child support.
Based upon the mother's temporary return to full-time
employment, the father requested a reduction of his child support
obligation from $307.54 to $26 per month.
The mother testified that she had undertaken full-time
employment for financial reasons, but reverted to part-time
status due to the children's emotional problems and the pending
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legal matters. She testified that her employer had asked that
she revert to part-time employment because she was missing work.
The trial court asked whether the father had prepared a
statement of his income and expenses. The father replied that he
did not have this information. The trial court denied and
dismissed the father's motion for modification of child support.
Thereafter, it denied his motion for reconsideration.
II.
The father contends that the mother's resumption of
full-time employment required modification of the parties' child
support obligation. The parenting agreement provided that the
parties would recompute child support according to the guidelines
in Code § 20-108.2(B) when the mother resumed full-time
employment. That agreement was incorporated into the final
decree of divorce, and is enforceable as a term of the decree.
See Code § 20-109.1.
The trial court recognized that the mother's return to
full-time employment required recalculation of child support.
"The starting point for a trial court in determining the monthly
child support obligation of a party is the amount as computed in
the schedule found in Code § 20-108.2(B)." Richardson v.
Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991).
However, "[t]his amount is determined according to a schedule
that varies according to the combined gross income of the parties
and the number of children involved." Id.
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The father presented no evidence of his income and expenses.
Because Code § 20-108.2(B) requires competent evidence of the
parties' gross combined income, the trial court was unable to
calculate the presumptive amount of child support.
As the party moving for modification of child support, the
father bore the burden of providing the information that would
enable the trial court to recalculate his support obligation.
Cf. Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119
(1991) (noting that movant seeking a payment reduction based upon
his changed financial condition "must also make a full and clear
disclosure about his ability to pay"). To hold otherwise would
require a trial court to speculate as to the parties' gross
incomes, or require a court to conduct subsequent proceedings at
the expense of the litigants and judicial economy.
The trial court requested a statement of the father's income
and expenses and provided him an opportunity to offer such
evidence. Because the father failed to present the evidence
necessary to apply the guidelines pursuant to the parties'
agreement, we affirm the trial court's denial of his motion.
III.
The father contends that the trial court erred by failing to
impute income to the mother. A finding that the mother was
voluntarily underemployed might have justified a deviation from
the amount prescribed by the guidelines. See Code
§ 20-108.1(B)(3); Bennett v. Commonwealth ex rel. Bennett, 22 Va.
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App. 684, 691, 472 S.E.2d 668, 672 (1996); Calvert v. Calvert, 18
Va. App. 781, 784-85, 447 S.E.2d 875, 876-77 (1994).
However, where a party seeks modification of a child support
award, "the trial court must first calculate the presumptive
amount of support under the guidelines in Code § 20-108.2 and
then determine whether deviation from the presumptive amount is
required." Orlandi v. Orlandi, 23 Va. App. 21, 28, 473 S.E.2d
716, 720 (1996). Thus, the presumptive amount must be calculated
before a deviation may be considered. See Code § 20-108.2(A).
The father, the moving party, failed to present evidence enabling
the trial court to determine the presumptive amount. Therefore,
the trial court could not consider a deviation.
IV.
The father contends that the trial court erred in denying
his motion to reconsider. Whether to grant this motion lay
within the sound discretion of the trial court. The record
demonstrates that both parties received a fair opportunity to
present their evidence and argument. See Morris v. Morris, 3 Va.
App. 303, 307, 349 S.E.2d 661, 663 (1986). We find no abuse of
discretion in the denial of the motion to reconsider.
We affirm the judgment of the trial court.
Affirmed.
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