COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Haley
TIMOTHY MARTIN BARRETT
MEMORANDUM OPINION*
v. Record No. 0992-05-3 PER CURIAM
NOVEMBER 15, 2005
VALERIE JILL RHUDY BARRETT
FROM THE CIRCUIT COURT OF GRAYSON COUNTY
Barnard F. Jennings, Judge Designate
(Timothy M. Barrett, pro se, on brief). Appellant submitting on
brief.
No brief for appellee.
Timothy Martin Barrett (husband), appeals from the circuit court’s March 30, 2005 order
requiring him to pay Valerie Jill Rhudy Barrett (wife) child support in the amount of $1,950 per
month. On appeal, husband contends the trial court erred (1) in failing to make a denial of spousal
support retroactive to September 1, 2002, and (2) “in not following the statutory guidelines for the
determination of child support.” For the reasons stated below, we affirm the trial court’s refusal to
make the denial of spousal support retroactive and reverse and remand on the child support issue.
BACKGROUND
On appeal, we view the evidence and all reasonable inferences in the light most favorable
to appellee as the party prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250, 391
S.E.2d 344, 346 (1990).
So viewed, the evidence established that husband and wife were married on July 28,
1990. During the eleven years of marriage, six children were born to the parties. On July 21,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
2001, wife left the marital residence in Virginia Beach with the six children and moved to
Grayson County where her parents resided. She subsequently filed for divorce, alleging
husband’s cruelty as ground for divorce.
On August 16, 2002, the Circuit Court of the City of Virginia Beach entered a final
decree granting wife a divorce on the amended ground that the parties had lived separate and
apart without interruption for more than a year. Code § 20-91(A)(9)(a). It awarded wife custody
of the six children, then ranging in age from sixteen months to nine years, child support, and
temporary spousal support. The decree of divorce also deferred any additional determination of
spousal support and equitable distribution until a later proceeding.
In September 2002, husband filed a petition in the Grayson County juvenile court seeking
a support determination. Husband also filed a bill of complaint in the Virginia Beach Circuit
Court on September 9, 2002 asking for a determination, inter alia, of spousal support. The case
was then transferred to the Grayson County juvenile court on December 6, 2002. On June 30,
2003, the juvenile court ordered husband to pay support to wife in the amount of $500 per month
beginning September 1, 2002 and ordered him to pay monthly child support in the amount of
$1,853. Both parties appealed that order to the circuit court.
In a March 30, 2005 order, the trial court granted husband’s motion for summary
judgment with respect to the issue of spousal support. The order precluded wife from offering
evidence in the matter due to her failure to respond to discovery, thus “leaving her unable to
prove her need for spousal support or the Petitioner’s ability to pay.” The court eliminated the
existing support obligation effective as of the date of the order.
The court heard evidence regarding child support. Wife, who was unemployed, asserted she
had expenses of $1,900 per month attributable to the children. Husband presented evidence
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regarding his income, his expenses, and wife’s potential income. In its ruling, the court announced
husband was required to pay wife $325 per child per month for a total of $1,950 per month.
ANALYSIS
I.
Husband argues “the trial court erred in failing to make the denial of spousal support
retroactive to September 1, 2002,” the effective date of the juvenile court’s order. He argues by
appealing the juvenile court order, that court’s determination was vacated and when no spousal
support was ordered by the circuit court, its order was required to be made retroactive. He also
contends that wife failed to seek spousal support in her pleadings.
In pertinent part, Code § 16.1-298(A) provides that “a petition for or the pendency of an
appeal or writ of error shall not suspend any judgment, order or decree of the district court . . . .”
However, husband reasons that once the circuit renders its opinion, the prior district court order
is vacated retroactively to the time of that court’s order. Husband provides no support for this
contention, and we know of none. On the contrary, “[o]rders of the district court requiring
support of a spouse remain in full force and effect until reversed or modified by the court to
which an appeal has been perfected . . . .” Martin v. Bales, 7 Va. App. 141, 145-46, 371 S.E.2d
823, 826 (1988). The district court order was a valid, enforceable order that remained in effect
until the time of the circuit court’s March 30, 2005 decision. Accordingly, we find no error in
the circuit court’s refusal to retroactively terminate the previously ordered spousal support.
Husband correctly notes that “[f]undamental rules of pleading provide that no court can
base its judgment or decree upon a right which has not been pleaded and claimed.” Boyd v.
Boyd, 2 Va. App. 16, 18, 340 S.E.2d 578, 580 (1986) (citation omitted). While we noted in Reid
v. Reid, 24 Va. App. 146, 149, 480 S.E.2d 771, 772 (1997), that a trial court adjudicating a
divorce has jurisdiction “to ‘provide in its decree for the . . . support and maintenance [of] the
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spouse,’ upon the ‘requests’ of ‘either party to the proceedings,’” we held that in a divorce
proceeding the relief being sought must be “specifically pled.” Id. at 150, 480 S.E.2d at 773
(citation omitted). Similarly, we have held that Code § 20-107.1 “grants to the divorce court the
power to award maintenance and support, but [that] the exercise of such power remains
dependent upon the pleadings having raised the issue.” Boyd, 2 Va. App. at 19, 340 S.E.2d at
580; see also Fleming v. Fleming, 32 Va. App. 822, 826, 531 S.E.2d 38, 40 (2000) (reversing an
award of “spousal support [where] the pleadings contained no request for it”).
It is also fundamental that an appellant bears the burden of submitting a record sufficient
for this Court’s consideration of the issues presented. Smith v. Commonwealth, 16 Va. App.
630, 635, 432 S.E.2d 2, 6 (1993). Wife initiated the divorce proceedings in 2001, at which time
she was represented by counsel. The record submitted by husband fails to include the initial
pleadings in this action. Thus, we are unable to determine from the record whether wife
specifically raised the issue of spousal support in her pleadings. Because husband failed to
provide a record sufficient for this Court to consider this question, we need not address it.
II.
Husband also argues “the trial court erred in not following the statutory guidelines for the
determination of child support.” We agree.
Code § 20-108.2 provides “guidelines” for the determination of child support. A court
may deviate from the guidelines upon a finding that the “guidelines would be unjust or
inappropriate in a particular case.” Code § 20-108.2(A). The deviation “shall be determined by
relevant evidence” pertaining to certain factors set out in the statute. Id.
[A]fter 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.
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
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inappropriate. 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 v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991).
In this case, it appears the trial court failed to first determine the presumptive amount of
support and failed to support any deviation from the guidelines with written findings. We hold
that the trial court erred in failing to calculate the presumptive amount of child support and
failing to provide a written explanation in the order or by reference for a deviation from the child
support guidelines, and we remand for the purposes of compliance with Code §§ 20-108.1 and
20-108.2.
Affirmed in part,
reversed in part,
and remanded.
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