Talmadge D. Baxter, Jr. v. Sandra Payne Baxter

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia
TALMADGE D. BAXTER, JR.
MEMORANDUM OPINION * BY
v. Record No. 2215-98-1 JUDGE RICHARD S. BRAY
AUGUST 17, 1999
SANDRA PAYNE BAXTER
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert P. Frank, Judge
Breckenridge Ingles (Martin, Ingles & Ingles,
Ltd., on brief), for appellant.
Paul H. Wilson (Wilson & Wilson, P.C., on
brief), for appellee.
Talmadge D. Baxter (husband) appeals the decree of the
trial court awarding him child support from Sandra Payne Baxter
(wife), complaining that the court erroneously failed to order
support retroactive to August 5, 1997, and deviated from the
statutory guidelines. Finding no error, we affirm the trial
court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
Husband and wife were married September 6, 1991, and a
child was born to the union on June 17, 1992. The parties
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
separated on February 10, 1995, and wife filed a bill of
complaint shortly thereafter, followed by an answer and
cross-bill by husband, each praying, inter alia, for divorce and
custody and support of the infant child. A pendente lite order
entered by the trial court on October 5, 1995, “jointly vested
[custody] with the parties . . . on an intervening two-week
basis,” but did not address the issue of continuing child
support. On August 5, 1997, the court revisited the custody
issue and, by decree entered August 18, 1997, ordered temporary
custody to husband, effective August 12, 1997, expressly
reserving “any ruling on . . . child support until further
hearing.”
A “Statement of Facts, Testimony and Other Incidents of
Trial,” dated October 26, 1998, prepared and presented by
husband, was certified by the court on November 13, 1998. The
statement recites that, following the August, 1997, proceeding,
[t]he case was next heard December 3, 1997
with regard to the issue of child support.
At that time, Complainant did not appear.
Her attorney advised the Court that she was
not working because of a back injury, and
that it was not known if she would be able
to return to work. Based upon that
representation, the Court ordered
Complainant to pay the minimum amount of
child support, $65.00 per month beginning
January 1, 1998.
The statement does not address circumstances between the August
and December hearings, and no provision for retroactive child
support for the period was included in the order.
- 2 -
On April 1, 1998, husband provided notice to wife that he
would appear before the court on June 3, 1998, and “move . . .
for entry of an Order requiring [her] to pay child support for
the support, maintenance and education” of the infant. At the
scheduled hearing, the court “received additional evidence
related to child support,” and, upon subsequent “documentation”
of wife’s expenses, entered the disputed decree on September 1,
1998, ordering her to pay husband “the sum of $75.00 per week,”
a “departure from the statutory guidelines,” effective January
1, 1998. The court expressly found the deviation “appropriate,”
noting that wife “has a child not born of the marriage of the
parties who has certain medical needs” and related expenses.
Husband appeals, arguing that the trial court erroneously
failed to award child support retroactive to August 5, 1997, the
date of the hearing which resulted in the award of custody to
him, and departed from the child support guidelines without
sufficient justification or explanation.
In “determining child support . . . the court shall
consider all evidence presented relevant to any issues joined in
[the] proceeding” and “relevant to each individual case,” guided
by those factors specified in Code § 20-108.1 and subject to the
guidelines of Code § 20-108.2. Code § 20-108.1. “Any child
support award must be based on circumstances existing at the
time the award is made.” Sargent v. Sargent, 20 Va. App. 694,
703, 460 S.E.2d 596, 600 (1995) (citation omitted).
- 3 -
“In reviewing these [issues], we are guided by the
principle that decisions concerning child support rest within
the sound discretion of the trial court and will not be reversed
on appeal unless plainly wrong or unsupported by the evidence.”
Barnhill v. Brooks, 15 Va. App. 696, 699, 427 S.E.2d 209, 211
(1993) (citation omitted). “The trial court’s judgment is
presumed to be correct, and ‘the burden is on the appellant to
present to us a sufficient record from which we can determine
whether the lower court has erred.’” Twardy v. Twardy, 14 Va.
App. 651, 658, 419 S.E.2d 848, 852 (1992) (citations omitted).
The evidence at the June 3, 1998 hearing disclosed that
wife was then receiving gross monthly income of $2,762. In
contrast, she was disabled at the time of the December 3, 1997
hearing, prompting the court to order “mimi[mal]” child support
of $65 per month, beginning January 1, 1998. Accordingly, the
court substantially increased wife’s support obligation in the
subject decree, properly responding to contemporary
circumstances, retroactive to January 1, 1998. However, the
record is silent for the months August through December, 1997,
the period embraced by husband’s retroactivity claim. We are,
therefore, unable to properly consider on review the factors
relevant to a proper support order for such period, and the
disputed decree remains presumptively correct.
- 4 -
DEVIATION FROM PRESUMPTIVE AMOUNT
“The starting point . . . for determining the child support
obligation of a party, whether initially or at a modification
hearing, is to compute the presumptive amount using the schedule
found in Code § 20-108.2(B).” Watkinson v. Henley, 13 Va. App.
151, 158, 409 S.E.2d 470, 473 (1991) (citation omitted); see
Code §§ 20-108.1, -108.2. However, “a trial court need not
award child support in the statutorily presumptive amount if a
deviation from such an amount is justified.” Scott v. Scott, 12
Va. App. 1245, 1249, 408 S.E.2d 579, 582 (1991); see Code
§§ 20-108.1, -108.2. “Actual monetary support for other
children, other family members or former family members” is a
factor recognized by statute that may support deviation. Code
§ 20-108.1(B)(1).
“Deviations from the presumptive support obligation must be
supported by written findings which state why the application of
the guidelines in the particular case would be unjust or
inappropriate.” Head v. Head, 24 Va. App. 166, 179, 480 S.E.2d
780, 787 (1997) (citations and internal quotations omitted); see
Code §§ 20-108.1, -108.2; Pharo v. Pharo, 19 Va. App. 236,
238-39, 450 S.E.2d 183, 184 (1994). However, “‘[a] trial court
may not avoid the statutory mandate by simply concluding that
circumstances’ warrant a guideline departure.” Pharo, 19 Va.
App. at 239-40, 450 S.E.2d at 184 (citation omitted).
- 5 -
Relying on Pharo, husband contends that the instant decree
was conclusory and without sufficient detail to satisfy the
statutory prerequisites to a guideline departure. 1 In Pharo, we
reversed a deviation from the presumptive amount because “[t]he
statutory considerations which supported the deviation, and
their effect on the court’s decision [were] neither identified
nor explained.” 19 Va. App. at 240, 450 S.E.2d at 185. Here,
however, the court recited in the decree that departure from the
guidelines was “appropriate . . . because [wife] has a child not
born of the marriage of the parties who has certain medical
needs . . . and [wife] spends $98.00 per week on a mentor for
that child,” a factor in justification of deviation specifically
enumerated in Code § 20-108.1(B)(1) and supported by the record.
Accordingly, we affirm the decree.
Affirmed.
1
Husband also relies on Farley v. Liskey, 12 Va. App. 1,
401 S.E.2d 897 (1991). In Farley, we reversed the trial court
because it failed to determine the presumptive support
obligation prior to the deviation. Id. at 4, 401 S.E.2d at 899.
Further, evidence of the “actual monetary support” to other
children was limited to a “statement that [wife] spent $45 a
month for clothing.” Id. Here, “[d]ocumentation from the
mentor indicated that his hourly charge is $14.00 per hour and
that he was with the child 6-8 hours per week.”
- 6 -