Robert William L. Hutchins v. Rosana L. Carrillo

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
ROBERT WILLIAM LYFORD HUTCHINS
MEMORANDUM OPINION *
v. Record No. Record No. 2674-98-4 PER CURIAM
JUNE 22, 1999
ROSANA LILLY CARRILLO
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard B. Potter, Judge
(Robert William Lyford Hutchins, pro se, on
brief).
No brief for appellee.
Robert William Lyford Hutchins (father) appeals the decision
of the circuit court granting his motion to modify the child
support paid to Rosana L. Carrillo (mother). In a previous
appeal, this Court reversed the order of the circuit court denying
Hutchins' appeal for failure to timely post the appeal bond and
remanded this matter to the circuit court "with instructions to
proceed as if father timely satisfied the appeal bond requirement
of Code § 16.1-296(H)." Hutchins v. Carrillo, 27 Va. App. 595,
614, 500 S.E.2d 277, 286 (1998). In the current appeal, father
contends that the trial court erred by (1) failing to proceed as
if father timely satisfied the appeal bond requirement of the
earlier appeal; (2) failing to backdate the final decree to the
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
time of the July 17, 1997 appeal; (3) improperly adjusting
father's child support obligation for monetary support provided
for other children; (4) failing to adjust father's child support
obligation for tool bills generated for the production of income;
(5) finding orthodontic care constituted an extraordinary medical
or dental expense under Code § 20-108.1(B)(8); (6) failing to find
that portions of the child support that deviated from the
presumptive amount paid to date were earmarked for specific
expenses and continuing those payments; and (7) failing to find
that ordering the non-custodial parent to pay for orthodontic
expenses was unconstitutional and a violation of equal protection.
Upon reviewing the record and opening brief, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
decision of the trial court. See Rule 5A:27.
Effective Date for Modified Child Support
In his first two issues, father contends that the trial court
failed to implement this Court's mandate on remand when the trial
court ordered the modified child support to begin as of October 1,
1998, rather than retroactive to July 17, 1997, the date the
circuit court denied father's previous appeal. We find no error.
Code § 20-108 provides "[n]o support order may be
retroactively modified, but 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 given
to the responding party." (Emphasis added.) The trial court was
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authorized, but not required, to make the modified support order
effective as of a date no earlier than when mother received notice
of the pending petition. However, the effective date was a matter
left to the discretion of the trial court. The trial court's
decision to make the modified child support effective as of the
start of the month following entry of its final decree was not an
abuse of discretion. Therefore, we find no error.
Determination of Child Support
Father also challenges the circuit court's decisions
concerning modification of the presumptive amount of child
support. Father contends that the trial court failed to
adequately consider his support for the child of his new
marriage and the expense he incurred to purchase tools needed in
his trade. See Code § 20-108.1(B)(1) and (5).
As the party seeking to modify support, father was required
to prove a material change in circumstances and that the change
justified altering the amount of support. See Yohay v. Ryan, 4
Va. App. 559, 566, 359 S.E.2d 320, 324 (1987).
A material change in circumstances, standing
alone, does not provide a basis for the
trial court to modify its support decree. A
modification is appropriate only after the
court has considered the material change in
circumstances in relation to the factors set
forth in Code § 20-108, namely, the present
circumstances of both parties and the
benefit of the children. Thus, in a
petition for reduction of support, the trial
court must assess whether the requested
reduction, based on a material change in
circumstances, is justified in light of the
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overall circumstances of both parties and
the impact on the needs of the children.
Id. In addition, "after determining the presumptive amount of
support according to the schedule, the trial court may adjust the
amount based on the factors found in Code §§ 20-107.2 and
20-108.1." Richardson v. Richardson, 12 Va. App. 18, 21, 401
S.E.2d 894, 896 (1991) (emphasis in original deleted; emphasis
added). Code § 20-108.1(B)(1) authorizes a trial court to deviate
from the amount of child support computed pursuant to the Code
§ 20-108.2 statutory guidelines when it finds application of the
guidelines "would be unjust or inappropriate in a particular
case." Code § 20-108.1(B). The deviation "shall be determined by
relevant evidence" pertaining to certain factors set out in the
statute. "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.
Father contends that the trial court failed to adequately
consider the monetary support he pays for the daughter of his new
marriage. Evidence relating to the "actual monetary support for
other children" is a factor that the trial court may consider as
warranting a deviation from the child support guidelines. Whether
to grant any deviation is a matter left to the discretion of the
trial court. The trial court granted father a $200 reduction in
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gross monthly income as a deviation from the statutory guidelines
based upon his "actual monetary support for other children." See
Code § 20-108.1(B)(1). The evidence supports the trial court's
decision, and we find no abuse of discretion.
Father also contends that the trial court failed to
consider the costs he incurs to buy tools used in his work as an
auto mechanic. Among the factors which the trial court may
consider when deviating from the child support guidelines is
"[d]ebts incurred for production of income." See Code
§ 20-108.1(B)(5). Father testified that he pays an average of
$400 a month to buy tools. He produced bills for some tool
purchases and tax forms listing unreimbursed business expenses.
We cannot say that the trial court erred by refusing to find
that father's work-related expense of purchasing tools warranted
further reduction in father's gross income.
Orthodontic Expenses
Father also raises several issues related to his payment of
orthodontic expenses for the parties' children. Father contends
that, because there was no evidence that the orthodontia was
medically necessary, the trial court erred by classifying the
orthodontic expenses as extraordinary medical or dental expenses
for purposes of Code § 20-108.1(B)(8) or § 20-108.2(D). He
noted that the orthodontic treatment of the parties' children
was halted for approximately fifteen months, although he
continued to make the payments.
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Mother testified that father urged her to begin orthodontic
treatment for the older child. She also testified that she used
father's payments to pay approximately $1,500 as deposits on the
orthodontia. She further testified that the anticipated
additional expenses for the parties' two sons were $2,838 and
$1,866, respectively, and that she continued to incur $267 in
monthly orthodontic costs. Both parties testified that father's
insurance did not cover all orthodontic expenses.
Code § 20-108.2(D) authorizes the trial court to add to the
child support calculation "extraordinary medical and dental
expenses," which are defined in the statute as "uninsured
expenses in excess of $100 for a single illness or condition
. . . ." Based upon mother's testimony that she paid $267 each
month for uninsured orthodontic expenses, the trial court added
that amount to the total amount of child support. The trial
court rejected father's argument that orthodontic expenses were
not medically necessary, noting that "orthodontics is a
necessity for a child’s well-being, for a child’s self-esteem,
if not for the medical necessity of being able to eat properly
or growing up in the future with a set of teeth that can work
properly." Because the orthodontic expenses satisfied the
statutory definition, we find no error in the trial court's
classification of the expenses as extraordinary for purposes of
inclusion in child support.
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The trial court calculated current child support based upon
the current payments for orthodontics. While father contended
that previously paid funds intended to pay for orthodontia were
used by mother for living expenses, we find no error in the
trial court's decision to incorporate into the child support
calculation proven current expenses.
Constitutional Challenges
Finally, father contends that the court's order requiring
him, a non-custodial unmarried parent, to pay for orthodontic
expenses violated his right to equal protection because similarly
situated married parents could not be ordered to pay for
orthodontia. Solely for purposes of this analysis, we will
assume, though not decide, father’s underlying premise is correct.
See generally Morris v. Commonwealth ex rel. Morris, 13 Va. App.
77, 83, 408 S.E.2d 588, 592 (1991).
"It is firmly established that all actions of the General
Assembly are presumed to be constitutional. Therefore, the
party assailing the legislation has the burden of proving that
it is unconstitutional . . . ." Etheridge v. Medical Center
Hospitals, 237 Va. 87, 94, 376 S.E.2d 525, 528 (1989) (citations
omitted). Father identified two classes of similarly situated
parents that he alleged were treated differently, i.e., married
parents and unmarried parents. While illegitimacy is a
classification which has been afforded higher scrutiny, see,
e.g., Pickett v. Brown, 462 U.S. 1 (1983), father has not
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demonstrated that the classification he challenges must satisfy
more than the rational basis test. See Etheridge, 237 Va. at
103-04, 376 S.E.2d at 533-34.
"The rational basis test is satisfied 'if the legislature
could have reasonably concluded that the challenged
classification would promote a legitimate state purpose.'" Id.
at 104, 376 S.E.2d at 534. "'Child support has long been
recognized as an obligation owed to the infant child . . . [which]
duty arises from principles of natural law.'" Hur v. Department
of Soc. Servs., 13 Va. App. 54, 58, 409 S.E.2d 454, 457 (1991)
(citation omitted). The legislature reasonably could have
concluded that legitimate state purposes were served by ensuring
that children whose parents were not married continued to
receive adequate financial support, including payments for
medical expenses incurred. Therefore, father has failed to
demonstrate that the inclusion in the child support calculations
of expenses satisfying the definition of extraordinary medical
expenses violated his right to equal protection.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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