COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia
TRACY L. CARMON
v. Record No. 1061-95-2 OPINION BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA, MARCH 5, 1996
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. HAZEL M. JONES
FROM THE CIRCUIT COURT OF CAROLINE COUNTY
J. Peyton Farmer, Judge
William L. Botts, III (Rappahannock Legal Services,
on briefs), for appellant.
Gary P. Webb, Senior Special Counsel (Betsy S.
Elliott, Senior Special Counsel, Division of Child
Support Enforcement; James S. Gilmore, III,
Attorney General; William H. Hurd, Deputy Attorney
General; Siran S. Faulders, Senior Assistant
Attorney General, on brief), for appellee.
Tracy L. Carmon appeals the trial court's order declaring
her to be $1,755.72 in arrears in child support. Carmon contends
that the trial court erred in determining that she had income of
$300 per month from November 1989 through August 1991. We hold
that the trial court did not err; therefore, we affirm the trial
court's order.
Hazel Jones, the appellant's mother, had custody of the
appellant's son, Linwood, for thirty-eight months from July 1988
through August 1991. Jones received benefits through the Aid to
Families With Dependent Children (AFDC) program for Linwood's
support while she had custody. The Virginia Department of Social
Services, Division of Child Support Enforcement (DCSE) entered an
administrative support order (ASO) on January 11, 1994, requiring
the appellant to reimburse $2,470 of the AFDC benefits paid to
Jones from July 1988 through August 1991. DCSE computed the
amount of $2,470 based upon the guideline schedule in Code
§ 20.108.2(B) showing $65 per month for a person with income from
$0 - $599 for thirty-eight months. DCSE based the $65 amount on
its administrative policy construing Code § 20-108.2(B) to impose
a mandatory minimum monthly child support obligation of $65 on
all debtor parents with monthly income at or below $599.
Appellant contested the ASO. After an administrative
hearing, DCSE held that the ASO was valid. The juvenile and
domestic relations district court heard the case de novo and
issued an order requiring appellant to pay $2,470. Appellant
appealed to the circuit court.
In the circuit court, appellant testified that from July 1,
1988, through October 31, 1989, she was employed as a housekeeper
at a motel in Richmond and that her earnings were approximately
$598 per month. In November 1989, her employer terminated her
employment. She unsuccessfully sought other employment in the
Richmond area immediately after losing her job and periodically
thereafter until August 1991.
After losing her job, appellant entered into an arrangement
with the rooming house where she resided to collect the weekly
rent from the other boarders and to clean the rooms that had been
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vacated in exchange for a free room for herself. This
arrangement began in November 1989 and continued through August
1991. The average monthly value of her room during this period
was approximately $300.
At the circuit court hearing, appellant challenged the
portion of the ASO covering the time period she was not employed
between November 1989 and August 1991, which amounted to
$1,406.17. The circuit court found that during that time,
appellant had "in kind income" of $300 per month based on the
agreement she had at the rooming house, and determined, based on
the guidelines in Code § 20-108.2(B), that her monthly support
obligation for the disputed time period was $32.50. Accordingly,
the court found the total support obligation to be $1,755.72,
rather than the $2,470 determined in the ASO.
I. Jurisdiction
DCSE contends that the trial court did not have jurisdiction
to decide appellant's claim, and that, consequently, this Court
does not have jurisdiction to decide this appeal. Although DCSE
did not raise the issue of jurisdiction in the circuit court, a
jurisdictional question may be raised on appeal for the first
time. See Owusu v. Commonwealth, 11 Va. App. 671, 672, 401
S.E.2d 431, 431 (1991).
According to DCSE, the hearing officer was barred under Code
§ 63.1-252.1 from conducting an administrative hearing because
appellant did not file an answer within ten days of receiving
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notice of the ASO. Code § 63.1-252.1 provides, in pertinent
part:
If no answer is received by the
Commissioner within ten days of the date of
service or acceptance, the administrative
support order shall be as provided in the
notice. The Commissioner may initiate
collection procedures pursuant to this
chapter. . . . If the debtor, within ten
days of the date of service of the notice,
files an answer, with the Commissioner
alleging defenses to the liability imposed
pursuant to § 63.1-251, the debtor shall have
the right to an administrative hearing.
Id. DCSE contends that the fact that the hearing officer
erroneously granted the appeal does not confer jurisdiction
because hearing officers, like courts, do not have the authority
to extend jurisdiction beyond that created by statute. See Nolde
Bros. v. Chalkley, 184 Va. 553, 560-61, 35 S.E.2d 827, 830
(1945).
"An important consideration in interpreting the meaning of a
statute is whether it is mandatory and jurisdictional or
directory and procedural." Cheeks v. Commonwealth, 20 Va. App.
578, 582, 459 S.E.2d 107, 109 (1995); see also Jamborsky v.
Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638 (1994). Code
§ 63.1-252.1 does not expressly mandate that all appeals of ASOs
be filed within ten days of receiving notice of the ASO. In
contrast, Code § 63.1-268.1, which grants the Juvenile and
Domestic Relations Court jurisdiction over appeals from
administrative hearings, provides that "[s]uch appeal[s] shall be
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taken within ten days of receipt of the hearing officer's
decision." Id. (emphasis added). See also Mayo v. Department of
Commerce, 4 Va. App. 520, 523, 358 S.E.2d 759, 761 (1987) ("It is
well settled that `[w]hen the word `shall' appears in a statute
it is generally used in an imperative or mandatory sense'"). The
only mandatory language in Code § 63.1-252.1 provides that the
debtor is entitled to an administrative hearing if he files an
answer within ten days of receiving notice.
Although Code § 63.1-252.1 provides that the ASO "shall
become effective unless [contested within ten days]," it does not
create a jurisdictional bar. If the ASO is not contested within
ten days of receipt, DCSE has discretion to conduct an
administrative hearing. Here, DCSE granted an administrative
hearing even though appellant did not file an answer within ten
days of receiving notice of the ASO. Therefore, the trial court
had jurisdiction over appellant's appeal.
II. Income
The trial court found that appellant "had no cash income
but in kind income of $300.00 a month in the form of room and
board, which the Court impute[d] to her as actual income pursuant
to VA Code § 20-108.1(B)(3)." Appellant contends the trial court
erred by applying Code § 20-108.1(B)(3) because the record does
not show that she was either "voluntarily unemployed or
underemployed." See Brooks v. Rogers, 18 Va. App. 585, 593, 445
S.E.2d 725, 729 (1994) (holding that the record must contain
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evidence sufficient "to support the trial court's implicit and
necessary finding that [the appellant] was either voluntarily
unemployed or underemployed"). We agree that Code
§ 20-108.1(B)(3) does not apply in the present case.
Nonetheless, we affirm the trial court's finding that appellant
had in kind income of $300 per month from November 1989 through
August 1991. See Dziarnowski v. Dziarnowski, 14 Va. App. 758,
762, 418 S.E.2d 724, 726 (1992) ("When a trial court reaches the
correct result for the wrong reason, its judgment will be upheld
on appeal").
Code § 20-108.2(C) defines "gross income" as "all income
from all sources . . . [including] income from salaries [and]
wages." Id. (emphasis added). We construe this broad statutory
language to include nonmonetary as well as cash income. Cf.
Commissioner v. Smith, 324 U.S. 177, 181 (1945) (holding that the
Internal Revenue Code "is broad enough to include in taxable
income any economic or financial benefit conferred on the
employee as compensation, whatever the form or mode by which it
is effected"); Virginia Employment Comm'n v. A.I.M. Corp., 225
Va. 338, 350, 302 S.E.2d 534, 541 (1983) (holding that "wages"
under Code § 60.2-229 includes noncash remuneration). To
construe Code § 20-108.2(C) otherwise would violate the obvious
purpose of the statute and would exclude income paid in a form
other than cash. See Turner v. Commonwealth, 226 Va. 456, 459,
309 S.E.2d 337, 338 (1983) ("the plain, obvious, and rational
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meaning of a statute is always to be preferred to any curious,
narrow, or strained construction").
Here, appellant was compensated in the form of room and
board in return for her services of collecting rent and cleaning
vacated rooms. The monthly rental value of the room and board
the appellant received for her services was $300. Therefore, the
trial court did not err in finding that appellant had in kind
income of $300.
III. Presumptive Support Obligations
DCSE, pursuant to its administrative policy, imposes a
mandatory minimum support obligation against a parent with income
from $0 to $599 of $65 "and leaves to the judiciary any
determination as to whether this use of the guideline is unjust
or inappropriate in a particular case." The appellant contends
that this policy violates Code §§ 20-108.2 and 63.1-264.2, as
well as federal law. 1 See 42 U.S.C. § 667(b)(2). Because the de
novo hearing before the trial court annulled the judgments of all
the prior proceedings, see Cox v. Cox, 16 Va. App. 146, 148, 428
S.E.2d 515, 516 (1993), we do not rule directly on the propriety
of DCSE's administrative policy. See Hankins v. Virginia Beach,
182 Va. 642, 643-44, 29 S.E.2d 831, 832 (1944) ("It is not the
office of courts to give opinions on abstract propositions of
1
"The Virginia General Assembly amended [Code] § 20-108.2
to mirror the federal law." Richardson v. Richardson, 12 Va.
App. 18, 20, 401 S.E.2d 894, 895 (1991).
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law, or to decide questions upon which no rights depend, and
where no relief can be afforded"). Nonetheless, we hold that the
trial court correctly applied Code § 20-108.2 and did not err in
determining the appellant's presumptive support obligation.
Code § 63.1-264.2 instructs DCSE to determine the amount of
support obligation arrearage pursuant to the schedule of monthly
child support obligations set forth in Code § 20-108.2. Code
§ 20-108.2(A) provides that
[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 forth in this section
is the correct amount of child support to be
awarded.
Id. (emphasis added). The schedule of monthly support obligation
establishes a maximum obligation of $65 for persons with combined
monthly gross income between $0 and $599. Code § 20-108.2(B).
"For combined monthly gross income amounts falling between
amounts shown in the schedule, basic child support obligation
amounts shall be extrapolated." Id.; see also Richardson, 12 Va.
App. at 21, 401 S.E.2d at 896 (holding that the trial court must
first compute the presumptive support obligation in accordance
with the guideline set forth in Code § 20-108.2(B)). The clear
import of this language and the guideline scheme is that the
presumptive support obligation shall be proportional to the
debtor's actual gross income. The guideline schedule is not
designed to impose a greater proportional burden of support upon
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the most impoverished parent.
Here, the trial court determined that the appellant's
presumptive support obligation under Code § 20-108.2(B) was
$32.50, and in reaching this determination, the court "note[d]
that the presumptive amount of support [was] determined by
extrapolation of the $65 line in [Code § 20-108.2]." This
approach is mandated by Code § 20-108.2. Therefore, the trial
court correctly rejected DCSE's mandatory $65 support obligation
in determining the presumptive support obligation but did not err
in computing the appellant's support obligation at $32.50 per
month. Accordingly, we affirm the trial court's order.
Affirmed.
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