COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia
JESSICA HERRING
OPINION BY
v. Record No. 2867-99-2 JUDGE LARRY G. ELDER
AUGUST 22, 2000
JOHN L. HERRING
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
Douglas H. Hilton (Rappahannock Legal
Services, on briefs), for appellant.
Gerald F. Daltan (Scott, Daltan and Van Lear,
on brief), for appellee.
Jessica Herring (mother) appeals from a final order
directing that John L. Herring (father) pay $484 per month in
child support for the parties' two minor children. On appeal,
mother contends the trial court erroneously (1) failed to
calculate and state the presumptive amount of child support
pursuant to the child support guidelines; (2) failed to give
sufficient justification supporting its deviation from the
guidelines; and (3) considered that mother shared household
expenses with a roommate. Father contends that Rule 5A:18 bars
mother's appeal because she failed properly to present her
objections to the trial court. We hold that the ends of justice
exception to Rule 5A:18 permits our consideration of mother's
assignments of error. We also hold that the trial court's
deviation from the child support guidelines without first
calculating and stating the presumptive amount of support due
constituted reversible error, and we remand to the trial court
for further proceedings consistent with this opinion.
I.
BACKGROUND
The parties separated in October 1997. Mother maintains
custody of the parties' two minor children, who are currently
four and six years old, respectively. On September 22, 1998,
the Department of Social Services, Division of Child Support
Enforcement, issued an administrative order requiring father to
pay $319 per month in child support. On January 28, 1999,
mother petitioned the juvenile and domestic relations district
court for an increase in support. On April 27, 1999, the
district court calculated the presumptive amount of support
based on mother's gross income of $1,600 per month and father's
gross income of $1,300 per month-a distribution of fifty-five
and forty-five percent, respectively-at $675. After adding
expenses of $667 per month for child care and $154 per month for
health insurance coverage, the district court determined that
father's forty-five percent share of the total was $673 and
ordered father to pay that amount each month.
Father appealed to the circuit court. The court heard
testimony, which included evidence of the parties' almost
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identical gross monthly incomes 1 and costs for child care and
health insurance premiums. It also included evidence of
father's and mother's respective living expenses and other
financial obligations. At the time of the hearing, father
rented living space in his sister's basement and claimed various
outstanding debts. Mother shared a house with a roommate with
whom she evenly divided the rent and other household bills,
excepting food and telephone costs.
After hearing this evidence "ore tenus in open court and
argument of counsel," the court found as follows:
1. That the mother's child care expenses
are approximately $700 a month.
2. That 50% of the mother's household
expenses are paid by the person with whom
she lives;
3. that the parties' incomes are such that
the mother makes approximately 55% and the
father makes approximately 45%.
For the above reasons, the court finds
that application of the guidelines would be
unjust or inappropriate in this case; and
that the above facts are necessary to
consider the equities for the parents and
the children.
THEREFORE, IT IS ADJUDGED, ORDERED AND
DECREED that [father] pay to [mother] the
sum of $484.00 per month in child support
beginning November 1, 1999 . . . .
The trial court did not calculate or state the presumptive
amount of child support due under the guidelines. It did not
1
Father earned $9.00 per hour and worked full-time, which
provided a gross monthly income of $1,560. Mother reported an
annual income of $18,800, which provided a gross monthly income
of $1,566.
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provide any additional explanation for its conclusion that
application of the guidelines was unjust or inappropriate or
detail how it arrived at the amount of the award.
Wife's counsel endorsed the court's order "Seen and
Objected to:" and did not particularize the basis for her
objection. The parties' written statement of facts also
contains no information regarding the basis for wife's objection
to the order.
II.
ANALYSIS
Father contends that mother failed properly to preserve her
objection for appeal. Mother contends that her endorsement of
the final order was sufficient to alert the trial court to
potential error and to preserve the issues for appellate review.
We agree that the objection was insufficient to preserve the
issues for appeal but hold that the "ends of justice" exception
to Rule 5A:18 applies to permit our review.
Rule 5A:18 provides that "[n]o ruling of the trial court
. . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the
time of the ruling, except for good cause shown or to enable the
Court of Appeals to attain the ends of justice." The purpose of
the rule is to allow the trial court to cure any error called to
its attention, thereby avoiding unnecessary appeals and
retrials. See, e.g., Lee v. Lee, 12 Va. App. 512, 514, 404
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S.E.2d 736, 737 (1991) (en banc). Ordinarily, endorsement of an
order "Seen and objected to" is not specific enough to meet the
requirements of Rule 5A:18 because it does not sufficiently
alert the trial court to the claimed error. See id. at 515, 404
S.E.2d at 738. Such an endorsement is sufficient to satisfy
Rule 5A:18 only if "the ruling made by the trial court was
narrow enough to make obvious the basis of appellant's
objection." Mackie v. Hill, 16 Va. App. 229, 231, 429 S.E.2d
37, 38 (1993).
We reject mother's contention that our holding in Mackie
applies to the facts of this case. In Mackie, the sole issue
before the court was whether a property settlement agreement
required the husband to maintain health insurance coverage for
his former wife. See id. The only finding the trial court made
was that the property settlement agreement was not incorporated
into the final decree. See id. Under those circumstances, we
held that the trial court's ruling was "narrow enough to make
obvious the basis of appellant's objection." Id.
Here, mother contends that the only issue raised by her
appeal is what level of child support father should be required
to pay. However, she articulates three distinct issues which
fall under this broad canopy: whether the trial court
erroneously (1) failed to calculate and state the amount of
child support pursuant to the presumptive child support
guidelines; (2) failed to give sufficient justification
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supporting its deviation from the guidelines; and (3) considered
that mother shared household expenses with a roommate. Thus,
mother alleges errors in the court's findings of fact and
conclusions of law as well as in its interpretation and
application of the relevant statutes. The trial court's final
order is not limited to a single finding or conclusion and,
therefore, Mackie does not apply.
Although mother failed properly to preserve her assignments
of error for appeal, we hold that the ends of justice exception
to Rule 5A:18 applies to permit our consideration of the alleged
errors. Application of the ends of justice exception requires
proof of an error that was "clear, substantial and material."
Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11
(1989). The record "must affirmatively show that a miscarriage
of justice has occurred, not that a miscarriage might have
occurred." Redman v. Commonwealth, 25 Va. App. 215, 221, 487
S.E.2d 269, 272 (1997). Ordinarily, in the criminal context,
application of the ends of justice exception is appropriate
where "[the accused] was convicted for conduct that was not a
criminal offense" or "the record . . . affirmatively prove[s]
that an element of the offense did not occur." Id. at 221-22,
487 S.E.2d at 272-73. However, some procedures are so crucial
that a court's failure to adhere to them constitutes error that
is clear, substantial and material even in the absence of
affirmative proof of error in the result. For example, a trial
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court in a criminal case has an affirmative duty properly to
instruct the jury on the elements of the charged offense, even
if the accused does not object or proffer a properly worded jury
instruction, and the ends of justice exception permits the
accused to raise this issue for the first time on appeal. See
Johnson v. Commonwealth, 20 Va. App. 547, 553-54, 458 S.E.2d
599, 602 (1995) (en banc); see also Jimenez v. Commonwealth, 241
Va. 244, 250, 402 S.E.2d 678, 681 (1991). We hold, pursuant to
Code § 20-108.1(B), that when determining child support, a court
has an affirmative duty to calculate expressly the presumptive
amount of child support under the guidelines and, if it deviates
from that presumptive amount, to explain adequately the basis
for such deviation. 2 This affirmative duty is required to ensure
that the award meets the requirements of the statute, including
"the best interests of the child." Code § 20-108.1(B).
Code § 20-108.1(B) provides in relevant part as follows:
[T]here shall be a rebuttable presumption in
any judicial or administrative proceeding
for child support . . . that the amount of
the award which would result from the
application of the guidelines set out in
2
To make clear our holding, we note that our application of
the ends of justice exception in this case, as set out in the
text, applies only to the court's failure in child support cases
to expressly calculate the guideline amount or to make the
written findings required to justify its deviation from that
amount. We do not consider whether the ends of justice
exception would apply to issues such as an erroneous application
of the guidelines, erroneous evaluation of the circumstances
justifying deviation, or a related mathematical error.
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§ 20-108.2 is the correct amount of child
support to be awarded. . . .
In order to rebut the presumption, the
court shall make written findings in the
order, which findings may be incorporated by
reference, that the application of such
guidelines would be unjust or inappropriate
in a particular case. The finding that
rebuts the guidelines shall state the amount
of support that would have been required
under the guidelines, shall give a
justification of why the order varies from
the guidelines, and shall be determined by
relevant evidence pertaining to [certain
enumerated statutory factors] affecting the
obligation, the ability of each party to
provide child support, and the best
interests of the child . . . .
See also Farley v. Liskey, 12 Va. App. 1, 4, 401 S.E.2d 897, 899
(1991). The judge's written findings must explain why the
amount according to the guidelines would be inappropriate or
unjust and must justify the amount of support awarded. See,
e.g., Richardson v. Richardson, 12 Va. App. 18, 22, 401 S.E.2d
894, 896 (1991).
Here, although the court's support award is not necessarily
erroneous, the entry of a support order which does not expressly
determine the presumptive amount of support due or fully explain
the basis for deviating from that amount does not provide an
adequate basis for future modifications of support. Our
application of Rule 5A:18 to allow the non-conforming support
award to stand without adequate explanation as to how the amount
of support was determined would seriously handicap a court
overseeing future modification proceedings because that court
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would have an insufficient understanding of the manner in which
the existing award was set and the extent to which a change in
circumstances might warrant a change in the amount of support.
See Hiner v. Hadeed, 15 Va. App. 575, 580-81, 425 S.E.2d 811,
814-15 (1993) (holding that res judicata prevents relitigation
of an erroneous post-guidelines child support award even where
judge making previous award failed to determine guideline amount
or explain basis for deviation).
Thus, we apply the ends of justice exception to Rule 5A:18
to reach mother's assignment of error, and we reverse and remand
to the trial court to expressly calculate the presumptive amount
of support due. Although Code § 20-108.1(B) permits the court
to incorporate its written findings by reference, the circuit
court's order did not purport to incorporate the district
court's guideline calculations. Further, the evidence contained
in the parties' written statement of facts on appeal suggests
that the parties' respective gross incomes had changed following
the district court proceedings. We also note, for purposes of
remand, the court's duty to "'identify the factors that
justified deviation . . . and explain why and to what extent the
factors justified the adjustment' in 'enough detail and
exactness to allow for effective appellate review of the
findings.'" Pharo v. Pharo, 19 Va. App. 236, 238, 450 S.E.2d
183, 194 (1994) (quoting Richardson, 12 Va. App. at 22, 401
S.E.2d at 896) (holding explanation for deviation insufficiently
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detailed where trial court observed merely that application of
shared custody support guidelines "would seriously impair [the
mother's] ability to maintain minimal adequate housing and
provide other basic necessities for the child" and made award
consistent with sole custody support guidelines). Although we
do not reach the merits of mother's final assignment of error,
we note that proper factors which may support deviation from the
guidelines include "the obligations and needs . . . of each
parent" as well as "[s]uch other factors . . . as are necessary
to consider the equities for the parents and children." Code
§ 20-108.1(B)(11), (18).
For these reasons, we reverse the ruling of the trial court
and remand for further proceedings consistent with this opinion.
Reversed and remanded.
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