COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
JOHN DEAN COLLINS
MEMORANDUM OPINION *
v. Record No. 1984-98-3 PER CURIAM
APRIL 27, 1999
TAMMIE LEIGH HURLEY COLLINS
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge
(Barry M. Tatel; Neil E. McNally; Key &
Tatel, P.C., on brief), for appellant.
(Deborah Caldwell-Bono, on brief), for
appellee.
John Dean Collins (father) appeals the decision of the
circuit court denying his request to reduce the monthly child
support he pays to Tammie Leigh Hurley Collins (mother). Father
contends that the trial court erred by (1) deviating from the
child support guidelines set forth in Code § 20-108.2; (2)
refusing to reduce the amount of child support after finding a
material change in circumstances had occurred; and (3) assessing
a child support arrearage. Upon reviewing the record and briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
As the party seeking to modify the existing support order,
father was required to prove “both a material change in
circumstances and that such change justifies an alteration in
the amount of support.” Yohay v. Ryan, 4 Va. App. 559, 566, 359
S.E.2d 320, 324 (1987).
A material change in circumstances, standing
alone, does not provide a basis for the
trial court to modify its support decree. A
modification is appropriate only after the
court has considered the material change in
circumstances in relation to the factors set
forth in Code § 20-108, namely, the present
circumstances of both parties and the
benefit of the children.
Id.
Deviation from Presumptive Guidelines
Father contends that the trial court erred by deviating
from the presumptive guideline amount set out in Code
§ 20-108.2. We disagree.
[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
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).
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The trial court calculated child support pursuant to the
guidelines, then indicated, in writing, that it was deviating
from the guideline amount. The trial court ruled that, based
upon the evidence and the statutory factors, it would be unjust
to reduce the amount of child support paid by father from the
amount agreed upon by the parties in their post-separation
agreement. The trial court stated: “With knowledge, imputed or
actual, of the child support guidelines, the parties
intentionally and voluntarily chose to ignore them. Instead, as
parents, the parties determined that the particular needs of
their child, based on the manner in which they chose to raise
him, would require $125.00 per week be paid to the mother as
child support.” In this situation, we cannot say that in
deviating from the guidelines the trial court abused its
discretion.
Material Change in Circumstances
Father also contends that the trial court erred when it
found a material change of circumstances but refused to reduce
the amount of child support. A party seeking to modify child
support must not only prove a material change in circumstances
but also that that change warrants a modification of support.
See Yohay, 4 Va. App. at 21, 359 S.E.2d at 324. See also Layman
v. Layman, 25 Va. App. 365, 367, 488 S.E.2d 658, 659 (1997).
The trial court found that a material change in circumstances
had occurred because both parties had increased their incomes,
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but that the change did not warrant a reduction in father’s
child support payments.
Specifically, the court found “that the needs of the child
have drastically altered since” entry of the final decree.
However, the court agreed with mother that “she waived her
spousal support in return for the agreed child support figure.”
It is clear that the trial court considered the change in
circumstances, the positions of the parties, and the reasons for
their actions. We cannot say that its findings are without
support in the record.
Child Support Arrearage
The trial court ruled that father was $2,932.50, plus
interest, in arrears on his child support payments. Father
argues that, because he paid the presumptive amount of child
support during the time when his petition for modification was
pending before the juvenile and domestic relations district
court, he should not be assessed an arrearage. This argument is
without merit.
While a trial court may modify a support payment “from the
date that notice of such [modification] petition has been given
to the responding party,” Code § 20-108, “[w]hether to make
modification of a support order effective during a period when a
petition is pending is entirely within the discretion of the
trial court.” O'Brien v. Rose, 14 Va. App. 960, 965, 420 S.E.2d
246, 249 (1992). A litigant may not unilaterally reduce
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court-ordered child support payments. “Should circumstances
change requiring alteration in the amount of support, a party's
remedy is to apply to the court for relief.” Goodpasture v.
Goodpasture, 7 Va. App. 55, 58, 371 S.E.2d 845, 847 (1988).
Father had no authority to pay less child support from July
1997 through February 1998 than he was previously ordered to pay
by the unmodified decree of divorce. Therefore, the trial court
did not err in finding that father owed an arrearage of
$2,932.50.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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John Dean Collins v. Tammie Leigh Hurley Collins
Combined Opinion