COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Bray and Senior Judge Duff
Argued at Alexandria, Virginia
JACK KENT COOKE
OPINION BY
v. Record No. 2289-95-4 JUDGE RICHARD S. BRAY
AUGUST 20, 1996
SUZANNE MARTIN COOKE
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
William Shore Robertson, Judge
Edwin A. Williams (Kellogg, Williams & Lyons,
on briefs), for appellant.
Mark A. Barondess (Milissa R. Spring; Sandground,
Barondess & West, P.C., on brief), for appellee.
Acting on petition of Suzanne Martin Cooke (wife), the trial
court increased previously ordered child support payable by Jack
Kent Cooke (husband) and awarded wife attorney's fees incidental
to the proceedings. Husband appeals, complaining that the
support order did not comply with applicable statutory guidelines
and that the fees were excessive. Finding that the trial court
did not adhere to the appropriate guideline, we reverse the
support award.
The pertinent facts are uncontroverted. The parties were
divorced in November 1988, and husband was ordered, by decree
entered on January 23, 1990, to pay wife $2,420 per month for the
support and maintenance of the child born of the marriage. On
July 21, 1994, wife petitioned for an increase, pleading a
material change in circumstances arising from both the economic
status of the parties and the child's needs. Following several
ore tenus hearings, the trial court concluded that a review of
the earlier order was warranted and conducted a further hearing
on July 14, 1995 to ascertain an appropriate modification and
attendant attorney's fees. In accordance with correspondence to
counsel dated August 1, 1995, the court, by order entered
September 26, 1995, increased husband's monthly child support
obligation from $2,420 to $3,845.66, retroactive to the date he
received notice of wife's motion, July 28, 1994, and awarded wife
attorney's fees of $18,512.50.
This increase comported with the presumptive child support
prescribed by Code § 20-108.2, as amended in 1992, the statute
which controlled when wife filed her petition. However, during
the pendency of the proceedings, Code § 20-108.2 was amended,
effective July 1, 1995, reducing from two percent to one percent
the presumptive support due from gross monthly income in excess
of $50,000. Husband, therefore, urged the court to apply the
amended guideline, effective at the time of its ruling. In
overruling husband's motion, the trial court relied upon our
decision in Gaynor v. Hird, 11 Va. App. 588, 400 S.E.2d 788
(1991), as authority for applying the statute which existed at
the inception of this cause.
Application of Child Support Guidelines
Child support guidelines were enacted by the General
Assembly in furtherance of national policy intended to "assure
that both the child's needs and the parent's ability to pay are
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considered in determining the amount of support awards and to
decrease the disparity in . . . awards . . . ." Richardson v.
Richardson, 12 Va. App. 18, 20, 401 S.E.2d 894, 895 (1991).
Thus, "[i]n determining child support, there is a rebuttable
presumption that the amount determined in accordance with the
statutory guidelines, Code § 20-108.2, is the correct award."
Brooks v. Rogers, 18 Va. App. 585, 591, 445 S.E.2d 725, 728
(1994). Should the trial judge conclude that "application of
[such] guidelines would be unjust or inappropriate in a
particular case as determined by relevant evidence pertaining to
the factors set out in §§ 20-107.2 and 20-108.1," the court may
depart from the statutory schedule, provided the attendant order
adequately explains the deviation. Code § 20-108.2(A); Brooks,
18 Va. App. at 591, 445 S.E.2d at 728.
It is also well established in our jurisprudence that trial
courts may "adjust child support . . . when the petitioning party
has proven by a preponderance of the evidence a material change
in circumstances." Kaplan v. Kaplan, 21 Va. App. 542, 547, 466
S.E.2d 111, 113 (1996); see also Code § 20-108. Once a party has
demonstrated a material change, the court must "'determine
whether that change justifies a modification in the support award
by considering "the present circumstances of both parties and the
benefit of the children."'" Kaplan, 21 Va. App. at 547, 466
S.E.2d at 113 (citation omitted) (emphasis added). A
"substantive guideline amendment which result[s] in a significant
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disparity in the parties' support obligations" constitutes a
material change in circumstances created by the Code itself.
Slonka v. Pennline, 17 Va. App. 662, 664-65, 440 S.E.2d 423, 425
(1994) (emphasis in original); Milligan v. Milligan, 12 Va. App.
982, 988, 407 S.E.2d 702, 705 (1991). Thus, an amended guideline
may at once justify review of a prior order and specify the
presumptively correct amount of child support due under existing
circumstances. Hiner v. Hadeed, 15 Va. App. 575, 578-79, 425
S.E.2d 811, 813 (1993).
Here, the trial court initially concluded that a material
change in circumstances unrelated to a guideline amendment
justified review of the prior order. Subsequently, while the
court contemplated an appropriate modification, the General
Assembly amended the statutory guideline schedule, decreasing the
presumptive amount of child support for monthly gross incomes in
excess of $50,000, which resulted in a substantial reduction to
husband's obligation. 1 Thus, an additional material change in
circumstances occurred which necessitated the attention and
compliance of the court in properly adjudicating the petition.
When the trial court declined to apply the amended guideline to
that portion of the award which accrued subsequent to July 1,
1995, without a written explanation for a deviation from the
presumptive amount, the original order was modified contrary to
1
The existence of a "significant variance" between the
former and amended schedules is not in dispute. Milligan, 12 Va.
App. at 988, 407 S.E.2d at 705.
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statute.
The wife and the trial court mistakenly rely on Gaynor v.
Hird, 11 Va. App. 588, 400 S.E.2d 788 (1991), to support the
contention that the instant award is controlled by the guidelines
which pertained when wife filed her petition. In Hird, we
concluded that, in the absence of a contrary legislative intent,
the authority of a trial court to order the transfer of property
in equitable distribution was limited by the statute in effect at
the commencement of that action. Id. at 590-91, 400 S.E.2d at
789. In contrast, the statutory scheme established by Code
§§ 20-107.2, -108, -108.1, and -108.2, and related enactments,
manifest a clear legislative intent that the courts of this
Commonwealth determine the issue of child support with
contemporaneity, in consideration of prevailing circumstances and
consistent with existing guidelines. The application of a
repealed guideline schedule to ascertain a current award would
subvert this legislative design.
Similarly, contrary to husband's argument, trial courts may
not retroactively apply amended guidelines to fix awards for
periods governed by prior guidelines, absent written findings
justifying a departure from the former statute.
Accordingly, we find that the trial court erred in its
determination of husband's required monthly child support payment
for the period subsequent to July 1, 1995, and remand for the
proper application of the amended guidelines.
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Attorney's Fees
"An award of attorney's fees is a matter submitted to the
trial court's sound discretion and is reviewable on appeal only
for an abuse of discretion." Graves v. Graves, 4 Va. App. 326,
333, 357 S.E.2d 554, 558 (1987). The "key to a proper award of
counsel fees" is "reasonableness under all of the circumstances."
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985). To promote this determination, "evidence in the record
[must] explain or justify the amount of the award." Westbrook v.
Westbrook, 5 Va. App. 446, 458, 364 S.E.2d 523, 530 (1988).
"Where the trial judge finds that a fee award is justified,
evidence of time expended and services rendered is a proper basis
upon which to fix an award." Id.
Wife submitted an affidavit which detailed counsel fees
totaling $31,572.52, together with related costs of $1,511.77,
all attributable to these proceedings. The court, noting that
the "animus between the parties" and "their procedural posturing"
had generated "extensive hearings" involving "numerous issues,"
awarded a fee of $18,512.50 and costs, an amount deemed
consistent "with the charges prevailing in [the] jurisdiction."
Upon a review of the record, we find no abuse of discretion in
this award.
Accordingly, the order of the trial court is affirmed in
part, and reversed in part, and the cause is remanded for further
proceedings consistent with this opinion.
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Affirmed in part,
reversed in part,
and remanded.
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