Crabtree v. Crabtree

Opinion

COLEMAN, J.

Clara E. Crabtree (mother) appeals from the circuit court’s decree denying her motion for an increase in child support and modifying the child visitation schedule for Billy Jack Crabtree (father), her former husband. She contends that (1) the circuit court could not reinstate the case on its docket after it had transferred the matters of child support and custody to the juvenile and domestic relations district court, and (2) the circuit court erred by not specifying in writing, as required by Code § 20-108.1, why the amount of child support should continue to deviate from the presumptively correct amount according to the guidelines. For the reasons that follow, we affirm the decisions of the trial court.

The parties were divorced by an April 15, 1991, divorce decree entered by the Circuit Court of Tazewell County. The mother was granted custody of their two children and, based on a verbal agreement between the parents, the court awarded her $400 per month child support. The father was granted “reasonable,” as well as specified, child visitation rights. According to the mother, the support that the father presumptively would have been required to pay according to the guidelines at the time of the award and now, based on the parents’ combined gross income, is $514.70. The trial judge did not make a written finding as to the presumptive amount of child support according to the guidelines and did not explain in writing why the amount of child support ordered to be paid by the father should deviate from the guidelines. See Code § 20-108.1(B). The divorce decree also transferred “all matters . . . pertaining to child support, visitation rights [and] custody ... to the Juvenile and Domestic Relations [District] Court of appropriate jurisdiction, for enforcement or modification or revision thereof as the circumstances may require, as provided by [Code §] 20-79.” Neither party appealed that decree.

Five months after entry of the divorce decree, the Juvenile and Domestic Relations District Court of Tazewell County, over the father’s objection, transferred the case to the Juvenile and Domestic Relations District Court of Chesterfield County, the jurisdiction where the mother and children resided. The mother filed a motion in the Chesterfield juvenile court for an increase in child support. Several days later, the father filed a motion in the Tazewell County Circuit Court, pursuant to Code § 20-121.1, to reinstate the case on its docket and to enforce his visitation rights. After a hearing, the Tazewell County Circuit Court reinstated the case on its docket “to fully and completely define the visitation granted” to the father. Over the mother’s objection, a hearing was conducted on November 4, 1991, in the Tazewell County Circuit Court. The court considered the father’s motion to modify his visitation with the children and the mother’s motion filed in the matter in the Chesterfield juvenile court to increase child support. The circuit court judge denied the mother’s motion to increase child support and, on the father’s motion, modified the father’s child visitation schedule. In the decree denying the mother an increase in child support, the trial judge made no written findings as to the presumptive amount of child support, nor did he explain in writing why the amount of child support should continue to deviate from the presumptive amount under the guidelines.

I.

We first consider whether the circuit court had authority to reinstate the case on its docket and to entertain the parties’ motions to enforce visitation rights and to modify child support after having transferred “all matters ... pertaining to child support, visitation rights [and] custody of the minor children” to the juvenile and domestic relations district court pursuant to Code § 20-79(c). The mother contends that once the circuit court transferred those matters to the juvenile and domestic relations court, it divested itself of any continuing jurisdiction and that it could not thereafter entertain the motions to increase child support or enforce its visitation order, except by appeal as provided in Code § 20-79(c).

We hold that a “transfer” of “any other matters pertaining to support and maintenance . . . and custody” to the juvenile and domestic relations district court pursuant to Code § 20-79(c) conveys concurrent jurisdiction on the juvenile and domestic relations district court to hear those matters, but the transfer does not divest the circuit court of its continuing jurisdiction to consider those issues, should it exercise its discretion to do so. Accordingly, the circuit court had authority to reinstate the case on its docket and to consider the motions to modify child support and visitation.

The resolution of the question of what effect a “transfer” under Code § 29-79(c) has upon the jurisdiction of the circuit court to consider those “matters” depends upon the effect of several statutes which define the powers and jurisdictions of the two courts. Although this is a question which repeatedly confronts the circuit and juvenile and domestic relations district courts, we address the question for the first time. The resolution of the question depends upon whether a “transfer” of “matters” under Code § 20-79(c) divests a court of record of its continuing jurisdiction as provided by Code § 20-108 to also address those issues “transferred to the juvenile and domestic relations district court.”

Code § 16.1-244 provides that circuit courts and juvenile and domestic relations district courts have concurrent jurisdiction over “custody, guardianship, visitation or support of children when such [an issue] is incidental to the determination of causes pending in such courts.” See Peple v. Peple, 5 Va. App. 414, 418, 364 S.E.2d 232, 235 (1988). Code § 20-79(c) provides in pertinent part:

After the entry of a decree of divorce a vinculo matrimonii the court may transfer to the juvenile and domestic relations district court any other matters pertaining to support and maintenance for the spouse, maintenance, support, care and custody of the child or children on motion by either party, and may so transfer such matters before the entry of such decree on motion joined in by both parties. In the transfer of any matters referred to herein, the court may, upon the motion of any party, or on its own motion, and for good cause shown, transfer any matters covered by said decree or decrees to any juvenile and domestic relations district court within the Commonwealth that constitutes a more appropriate forum. An appeal of an order by such juvenile and domestic relations district court which is to enforce or modify the decree in the divorce suit shall be as provided in § 16.1-296.

Nevertheless, Code § 20-121.1 authorizes a circuit court to reinstate a suit that has been stricken from the docket in order to grant complete relief. Code § 20-108 provides that a circuit court, after entry of a final decree of divorce, has continuing jurisdiction to change or modify its decree as to matters affecting custody, support, and visitation of minor children. Thus, although a final divorce decree had been entered, when the case was reinstated on the docket of the circuit court, the case was “pending” for consideration of those matters over which the circuit court had continuing jurisdiction.

Where statutes are in potential conflict with one another, they must be construed consistently with one another, if possible, so as to give full force and effect to each. Nelson v. County of Henrico, 10 Va. App. 558, 561, 393 S.E.2d 644, 646 (1990); Cooper v. Occoquan Land Dev. Corp., 8 Va. App. 1, 6, 377 S.E.2d 631, 633 (1989), rev'd

on other grounds, 239 Va. 363, 389 S.E.2d 464 (1990); ACB Trucking, Inc. v. Griffin, 5 Va. App. 542, 547-48, 365 S.E.2d 334, 337-38 (1988).

Code § 20-79(c), providing for a transfer, of “enforcement” of “any other matters” after the final divorce to the juvenile and domestic relations district court, and Code § 20-108, providing for continuing jurisdiction in the circuit court, are not incompatible. The former does not mandate, nor does it explicitly state, that a circuit court is “divested” of its “jurisdiction” to consider those matters over which it had concurrent jurisdiction when it transferred all issues pertaining to enforcement or modification of child support and custody to the juvenile and domestic relations court. If the jurisdiction of the circuit court was to “cease” when it re-empowered the juvenile and domestic relations district court to consider those issues after transferring those matters, Code § 20-79(c) would have so provided, as is the case with Code § 20-79(a). By transferring “all matters” to the juvenile and domestic relations district court after the divorce, both courts had concurrent jurisdiction to adjudicate those issues. The jurisdiction of the juvenile and domestic relations district court had simply been preempted by virtue of Code § 20-79(a) after the divorce court decreed upon those issues.

Code § 20-79(c) does not place a limitation on the circuit courts’ concurrent and continuing jurisdiction to decide the recurring issues of child support, custody and visitation in domestic relations cases. To the contrary, Code § 20-79(c) was intended to expand the means available to circuit courts to enforce or modify support and custody matters, rather than to limit such options. The purpose of Code § 20-79(c) was to provide another forum to expedite matters of enforcement and modification by referring those issues to juvenile and domestic relations courts, where the dockets and procedures usually enable the parties to obtain earlier hearings and decisions on issues that frequently demand expedited consideration. Code § 20-79(c), which authorizes the circuit court to transfer certain issues over which it has jurisdiction to the juvenile and domestic relations district court, does not transfer or divest jurisdiction nor does it provide that jurisdiction “ceases.” We will not read such a provision into the statute.

Were we to limit the circuit court’s continuing jurisdiction when it might be the most appropriate forum to grant complete relief, we would be ruling in a manner contrary to the purpose of Code §§ 20-79 and 20-108. To so hold would undermine the purpose of those statutes by requiring parties to litigate issues in a court not of record, even when they know, or the circuit court determines, that the issues will ultimately be litigated in a court of record. A circuit court that transfers any matters to the juvenile and domestic relations district court pursuant to Code § 20-79(c) retains the power, in its discretion, to exercise its continuing jurisdiction over those matters. Statutes should not be construed in a manner that “would . . . enervate [and] impede . . . the administration of the . . . laws of the State.” Shilling v. Commonwealth, 4 Va. App. 500, 504, 359 S.E.2d 311, 313 (1987). We will not adopt a construction of the statutes that would needlessly require issues to be remanded to a court not of record before they can be heard in the circuit court. The circuit court had continuing jurisdiction, and, after it transferred issues of enforcement and modification of support and custody and visitation to the juvenile court, it retained the power, in its discretion, to reinstate the case on its docket and to adjudicate those issues.

II.

We next address the question whether a trial judge in a support modification proceeding is required to specify in writing why an earlier award of child support should continue to deyiate from the guidelines when the judge has determined that no material change in circumstances justifies a modification of the last child support award.

In all child support proceedings originating after July 1, 1989, courts must apply the provisions of Code §§ 20-107.2 and 20-108. See Barnhill v. Brooks, 15 Va. App. 696, 699, 427 S.E.2d 209, 212 (1993); Hiner v. Hadeed, 15 Va. App. 575, 578-79, 425 S.E.2d 811, 813 (1993). These statutes provide for the calculation of a presumptively correct amount of child support, which is based on a percentage of the parents’ combined gross monthly income. Id. If a trial judge determines that the amount of a child support award should deviate from the presumptive amount, the judge must make written findings of fact explaining the reasons for the deviation. Code § 20-108.2; Barnhill, 15 Va. App. at 699-700, 427 S.E.2d at 212; Hiner, 15 Va. App. at 579, 425 S.E.2d at 813-14. The statutory guidelines must be applied not only in the initial child support hearing, but also in hearings to modify support. Taylor v. Taylor, 10 Va. App. 681, 684, 394 S.E.2d 864, 866 (1990).

Once a child support award has been entered, only a showing of a material change in circumstances will justify modification of the support award. The moving party has the burden of proving a material change by a preponderance of the evidence. Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 118-19 (1991). If the initial support award was made before July 1, 1989, the effective date of the guidelines under Code § 20-108, the moving party may satisfy the material change in circumstances requirement by showing that the amount of the award varies significantly from the presumptive amount under the guidelines. Milligan v. Milligan, 12 Va. App. 982, 988, 407 S.E.2d 702, 705 (1991). If, however, the initial award was made after the effective date of the Code § 20-108 guidelines, a significant variation between the presumptive amount and actual support amount is not sufficient to justify review of the award, and the moving party must prove a material change of circumstances. Barnhill, 15 Va. App. at 700, 427 S.E.2d at 212.

Here, the trial judge first decreed an amount of child support based on the agreement of the parties on April 15, 1991, after the guidelines had gone into effect on July 1, 1989, and presumably after having considered the presumptively correct amount according to the guidelines. Thus, the mother, in order to obtain an increase in child support, had the burden of proving that a material change in the parents’ ability to provide support or the children’s needs had occurred in the five-month period after the trial judge had awarded support.

The mother did not prove the threshold element that a material change in circumstance had occurred that would justify an increase in the amount of child support. Not only was the mother’s income the same in November, 1991, as in April, 1991, she received a larger percentage of take-home pay in November, 1991. The mother resided at the same home and paid the same rent. While some of her expenses, such as health insurance, had increased, other expenses, such as day care, had decreased. The father’s ability to provide support had not changed. The fact that the initial amount of child support was less than the presumptive amount under the guidelines does not constitute a “material change in circumstances,” because the initial support award was entered after the effective date of the guidelines. Id.

Accordingly, without proof of a material change in circumstance, the trial judge was not required to calculate the presumptive amount under the guidelines or to justify by written findings of fact why the previous child support award should continue to deviate from the presumptive amount. See id.; Hiner, 15 Va. App. at 579, 425 S.E.2d at 813.

Affirmed.

Baker, I, concurred.