Pamela Kay Humphries v. Robert Brian Buchanan ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Ortiz, Chaney and Senior Judge Haley
Argued at Richmond, Virginia
PAMELA KAY HUMPHRIES
MEMORANDUM OPINION* BY
v. Record No. 0877-22-2 JUDGE VERNIDA R. CHANEY
AUGUST 22, 2023
ROBERT BRIAN BUCHANAN, ET AL.
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Edward A. Robbins, Jr., Judge
Robert W. Loftin (J. Tracy Walker IV; Jonathan T. Tan;
McGuireWoods LLP, on brief), for appellant.
No brief or argument for appellees.
Pamela Kay Humphries (mother) appeals the circuit court’s judgment reducing Robert Brian
Buchanan’s (father) child support obligation. Mother contends that the circuit court erred in
(1) applying their disabled child’s federal Supplemental Security Income (“SSI”) disability benefits
to reduce father’s child support obligation, (2) finding a requisite material change in circumstances
to support a modification of the previous child support order, without evidence to support this
finding, and (3) finding that father rebutted the presumption of correctness of the statutory child
support guidelines and deviating from the guidelines.
“On appeal, we presume the judgment of the trial court is correct . . . .” Bay v.
Commonwealth, 60 Va. App. 520, 528 (2012). “The burden is upon the appellant to provide [the
appellate court] with a record which substantiates the claim of error. In the absence [of a
*
This opinion is not designated for publication. See Code § 17.1-413(A).
sufficient record], we will not consider the point.” Dixon v. Dixon, 71 Va. App. 709, 716 (2020)
(alterations in original) (quoting Robinson v. Robinson, 50 Va. App. 189, 197 (2007)).
This Court cannot address mother’s assignments of error because mother failed to file a
transcript, or a written statement of facts in lieu of a transcript, of the October 15, 2021 trial in the
circuit court. See Rule 5A:8(a) (requiring transcripts to be filed no later than 60 days after entry of
the trial court’s final order). Because this Court cannot resolve mother’s assignments of error
without considering the evidence underlying the circuit court’s factual findings and computation
of child support, the missing trial transcript is indispensable in this appeal. See
Rule 5A:8(b)(4)(ii) (“When the appellant fails to ensure that the record contains transcripts or a
written statement of facts necessary to permit resolution of appellate issues, any assignments of
error affected by such omission will not be considered.”). See also Smith v. Commonwealth, 32
Va. App. 766, 772 (2000) (holding that “[t]his Court has no authority to make exceptions to the
filing requirements” for transcripts “set out in the Rules” (quoting Turner v. Commonwealth, 2
Va. App. 96, 99 (1986))).
Although mother timely filed a transcript of the January 14, 2022 hearing on her motion
for reconsideration of the circuit court’s October 15, 2021 ore tenus ruling, the January 2022
proceeding was a non-evidentiary hearing. As the circuit court noted in its March 3, 2022
opinion letter, “No testimony was provided, and no exhibits were admitted at the 14 January
2022 hearing.” Therefore, the timely-filed transcript of the January 14, 2022 hearing does not
provide the evidentiary record necessary to permit resolution of the issues raised in mother’s
assignments of error.
Because mother failed to ensure that the record contains a timely-filed transcript, or a
written statement of facts in lieu of a transcript, necessary to permit resolution of her assignments
of error, this Court affirms the circuit court’s judgment. See Rule 5A:8(b)(4)(ii); see also Smith
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v. Commonwealth, 281 Va. 464, 470 (2011) (“the failure to timely file the transcript . . . did not
deprive the Court of Appeals of its active jurisdiction to proceed to judgment in the appeal,”
affirming the trial court’s judgment).
Affirmed.
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Ortiz, J., concurring in part, and dissenting in part.
I concur that we cannot consider Humphries’ second and third assignments of error—that
no evidence was presented to establish a material change in circumstances or to rebut the
presumptive child support guidelines—as Humphries failed to timely file a transcript on appeal.
But I dissent from the majority’s decision that our Court cannot consider Humphries’ first
assignment of error—that the trial court erred when it deviated down from the child support
guidelines and considered the minor child’s Supplemental Security Income (“SSI”) disability
benefits an “independent financial resource”—as it presents a pure question of law.1
Furthermore, I would reverse the trial court’s decision because under Bennett v.
Commonwealth, 22 Va. App. 684 (1996), noncustodial parents are barred from receiving a child
support credit for a disabled child’s SSI income. Ignoring Bennett, the trial court relied instead
on dicta from Rinaldi v. Dumsick, 32 Va. App. 330 (2000). To the extent the Rinaldi language is
regarded as binding, I would affirm the trial court’s judgment and encourage rehearing this case
en banc, to resolve the tension between Rinaldi and Bennett.
1
An appellate court does not sit to pass judgment on the “reasons of the court for its
judgment” but simply the judgment, see, e.g., Perry v. Commonwealth, 280 Va. 572 (2010). Our
Supreme Court found a transcript was not indispensable to determine whether a motion to
continue was improperly denied, because there was evidence that the motion was made, and
denied, during the hearing. Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 33
(2007). It should be noted that the record contains a transcript from the motion for
reconsideration of the child support modification ruling. Furthermore, there is a record of how
the trial court considered the legal issue, as well as what arguments were preserved.
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Judicial dicta2 are a court’s opinion “on a question that is directly involved, briefed, and
argued by counsel, and even passed on by the court, but that is not essential to the decision and
therefore not binding even if it may later be accorded some weight.” Judicial Dictum, Black’s
Law Dictionary (10th ed. 2014). The United States Supreme Court noted that dicta generally
are to be taken in connection with the case in which those
expressions are used. If they go beyond the case, they may be
respected, but ought not to control the judgment in a subsequent
suit when the very point is presented for decision. The reason of
this maxim is obvious. The question actually before the Court is
investigated with care, and considered in its full extent. Other
principles which may serve to illustrate it, are considered in their
relation to the case decided, but their possible bearing on all other
cases is seldom completely investigated.
Cohens v. Virginia, 19 U.S. 264, 399-400 (1821). In practice, dicta may “range from binding to
wholly unpersuasive.” Professor Marc McAllister, Dicta Redefined, 47 Willamette L. Rev. 161,
162 (2011). “[W]e are not bound to follow our dicta in a prior case in which the point now at
issue was not fully debated,” Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006), or in
which the legal rationale is erroneous, see McAllister, supra.
In Rinaldi, a noncustodial father sought a downward deviation of his child support
obligation based on his adult disabled son’s SSI benefits and part-time employment. 32
Va. App. at 332. The trial court refused to deviate down from the child support guidelines. Id.
We affirmed, holding: “[t]he decision not to deviate from the guidelines is within the trial court’s
discretion and is to be determined upon . . . the totality of the circumstances in each case. We
cannot say the trial court’s decision was plainly wrong or without evidence to support it.” Id. at
2
Virginia distinguishes between “obiter dictum” and “judicial dictum.” See Jones v.
Phillips, 299 Va. 285, 301 (2020); Harmon v. Peery, 145 Va. 578, 583 (1926). Judicial “[d]icta
are opinions of a judge which do not embody the resolution or determination of the court and,
[are] made without argument or full consideration of the point . . . .” Harmon, 145 Va. at 583.
But obiter dicta are even more tangential than judicial dicta. “Obiter dicta are such opinions
uttered by the way, not upon the point or question pending, as if turning aside, from the main
topic of the case to collateral subjects.” Id. Rinaldi’s language constitutes judicial dicta.
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337. However, the Rinaldi panel then chose to engage in a hypothetical: could the trial court
have deviated down from the guidelines? Although it found that “the trial court expressly
declined to deviate from the guidelines” and “did not make any finding . . . [that] the guidelines
would be unjust or inappropriate,” it theorized that the trial court “properly could [have]
consider[ed] as an independent financial resource of the child both his SSI and his wages from
part-time employment.” Id. at 336 (emphases added). This tangential comment falls squarely in
the definition of “judicial dictum.” This statement was not essential to our holding in Rinaldi,
would create an inter-panel tension issue with our holding in Bennett, and is legally problematic.
In Bennett, we held that a noncustodial father was “not entitled to a credit or reduction in
his child support obligation as a result of the SSI benefits the mother receive[d] for [the adult
child]’s disability,” because gross income under the guidelines does not include federal SSI
benefits. 22 Va. App. at 695; Code § 20-108.2. We noted that “SSI benefits received by a
disabled child are intended to supplement other income, not substitute for it,” when holding that
a “noncustodial parent’s child support obligation is not impacted by the receipt of SSI on the
behalf of a disabled child.” Bennett, 22 Va. App. at 694-95. This interpretation aligns with the
legislative intent behind the SSI program—“that SSI benefits be paid only to the extent an
individual’s minimum income level is not being met from other sources.” Bormey v. Schweiker,
695 F.2d 164, 168 (5th Cir. 1983) (citing H.R. Rep. No. 92-231, 92d Cong., 2d Sess.); see Weiss
v. Schweiker, 519 F. Supp. 763, 765 (S.D.N.Y. 1981).
Bennett expressly barred noncustodial parents from receiving a child support credit for a
disabled child’s SSI income under Code § 20-108.2. Under Rinaldi, noncustodial parents would
be allowed to circumvent Bennett by claiming that their disabled child’s SSI income is not “gross
income” under Code § 20-108.2 but, rather, an “independent financial resource” under Code
§ 20-108.1. Rinaldi, 32 Va. App. at 336. This distinction is artificial, inconsistent with
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Congress’s legislative intent surrounding the SSI program, and violative of public policy. Even
Rinaldi recognized that “[t]here is nothing inherently unjust or inappropriate about making a
father support his child, if he is able to do so, before looking to a government welfare program
that is intended to supplement the resources of the needy.” Id. at 337 (alteration in original).
Effectively, Rinaldi would permit the exact noncustodial credit/reduction in child support that
Bennett disallowed. And it would encourage absent parents to foist their legal obligations onto
governmental programs for the needy.
Compounding the problem, the judicial dicta on which the trial court relied are legally
problematic and, thus, unpersuasive. Review of the Rinaldi panel’s opinion reveals that its dicta
are based upon a cite to the Code—which does not support its claim—and an incomparable
Kentucky case. In Barker v. Hill, 949 S.W.2d 896, 896 (Ky. Ct. App. 1997), the Kentucky court
considered whether a disabled child’s monthly SSI could be deducted from the father’s child
support obligations and held that it could. In coming to this decision, the Kentucky court stated:
In determining whether application of the guidelines would be
unjust or inappropriate, we believe that an appropriate
circumstance to consider is the SSI received by the child as an
independent financial resource. Considering SSI in the child’s
name is consistent with considering social security benefits in the
parent’s gross income.
Id. at 897 (emphasis added). This is because the Kentucky statute expressly includes both social
security benefits and supplemental security income as gross income when calculating its child
support guidelines award. Id. In other words, Barker v. Hill was decided this way because
Kentucky sought to harmonize its interpretation of “gross income” and its interpretation of
“independent financial resources.”
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But in Virginia, our statute states the opposite—“‘[g]ross income’ shall not include . . .
[f]ederal supplemental security income benefits.” Code § 20-108.2 (emphasis added).3 Our
statute is not comparable to the Kentucky statute. Rinaldi’s reliance on Barker v. Hill was thus
misguided and incorrect. In fact, Bennett is more analogous to Barker v. Hill than Rinaldi;
unlike Rinaldi, Bennett also sought to harmonize the statutes at issue.4 Despite this, the trial
court found Rinaldi’s distinction and incorrect reliance on Kentucky law to be binding.
Humphries and Buchanan are the divorced parents of N.B., a disabled person over the
age of eighteen. Both parties stipulated that N.B. qualified for continued parental support
beyond his eighteenth birthday under Code § 20-124.2. N.B. receives monthly SSI benefits of
$700 per month. After hearing argument, the trial court permitted a downward deviation of
Buchanan’s child support obligation, due to N.B.’s SSI benefits. The trial court relied on our
decisions in Bennett and Rinaldi and found that application of the standard child support
guidelines would be unjust, as Humphries used part of N.B.’s SSI benefits to support herself and
her children while providing full-time caregiving to N.B.
The trial court found that Rinaldi's language was not dicta and would allow courts to
consider the SSI benefits of a disabled child their “independent financial resources” under Code
§ 20-108.1. This determination undermines our prior holding in Bennett. Bennett, 22 Va. App.
at 695. Although Bennett concerned gross income calculations and benefits received by the
parent on behalf of a disabled adult child—rather than “independent financial resources” and
benefits awarded directly to the disabled adult child—the distinction is nevertheless artificial.
Rinaldi would permit different results for nearly identical financial situations. To read Rinaldi’s
language as anything other than dicta creates inter-panel tension between Rinaldi and Bennett.
3
This statutory language was identical when Bennett and Rinaldi were decided.
4
Code §§ 20-108.1, 20-108.2.
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Rinaldi’s language is unpersuasive judicial dictum. It is not essential to its holding, it is
legally suspect, and it is inconsistent with our holding in Bennett. To the extent that other
members of this Court would not find Rinaldi’s language to be dicta, this case should be heard en
banc to remedy the conflict between Rinaldi and Bennett. Rinaldi is a published panel case.
Bennett is a published panel case. Rinaldi should not be permitted to undermine Bennett without
vetting by our Court en banc. For these reasons, I dissent in part and concur in part.
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