COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
CYNTHIA LUNETTE AVEY
MEMORANDUM OPINION *
v. Record No. 3045-96-4 PER CURIAM
JULY 8, 1997
THOMAS GREGG AVEY
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James G. Haley, Jr., Judge
(Nicholas D. Capousis, on brief), for
appellant.
(Polly B. Knight; McCrary & Knight, on
brief), for appellee.
Cynthia Lunette Avey (mother) appeals the decision of the
circuit court setting child support payable by Thomas Gregg Avey
(father). Mother contends the trial court erred by (1) failing
to provide sufficient written justification for its deviation
from the statutory child support guidelines; and (2) ordering a
one month's abatement of child support during the children's
summer visitation with father. 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. Rule 5A:27.
Deviation from Guidelines
"The starting point for a trial court in determining the
monthly child support obligation of a party is the amount as
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
computed by the schedule found in Code § 20-108.2(B)."
Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896
(1991).
[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.
Id. (emphasis deleted). The trial court's written findings must
be "of enough detail and exactness to allow for effective
appellate review of the findings." Id. at 22, 401 S.E.2d at 897.
In this case, evidence was heard by the commissioner in
chancery. The commissioner computed the presumptive amount of
$1,296 in child support pursuant to the guidelines, but
determined that the statutory amount would be unjust in the
current case and reduced the award to $1,000.
The commissioner's report detailed the factors which were
considered in connection with the deviation from the presumptive
guideline amount. In particular, the commissioner noted that
father paid $96 monthly for life insurance and that the evidence
suggested a lower cost of living in Minnesota, where mother and
the children now lived, than in Virginia. The commissioner also
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considered the parties' income and related tax consequences,
based upon the evidence presented by the parties, and the
pendente lite support payment of $800 agreed to by the parties
after wife had established herself in her new location. After a
hearing on the parties' exceptions, the trial court affirmed the
commissioner's recommendation.
The commissioner's written findings were detailed and
addressed specific statutory factors. In considering the tax
consequences, the commissioner noted that he used the evidence
presented by the parties and related it to current, not future,
tax consequences. While it is clear that the commissioner's
discussion was based in part on certain assumptions, those
assumptions were conservative estimates based upon the evidence
designed to quantify, in some manner, the possible tax
consequences to the parties.
Father concedes that the monthly life insurance payment of
$96 was not pursuant to court order. The evidence presented to
the commissioner indicated that this payment was an expense
father incurred for the benefit of the children. Mother did not
refute father's evidence before the commissioner and does not
contest the fact of this payment on appeal. Mother argues,
however, that the commissioner erred by considering the payment
as a grounds for deviation. Code § 20-108.1(B)(6) expressly
directs the court to consider "[d]irect payments ordered by the
court for . . . maintaining life insurance coverage . . . ." The
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commissioner erroneously believed that father was obligated by
court order to make this payment. However, because the
commissioner properly considered this payment as discretionary,
not mandatory, we do not find that the error tainted the
commissioner's findings so as to amount to reversible error.
The written findings were sufficiently detailed to provide a
basis for review on appeal and were supported by the evidence.
We do not find an abuse of discretion in the trial court's award
of child support.
Abatement for Summer Visitation
In their "Outline of Settlement," dated May 10, 1995, the
parties agreed that child support would abate during the month
each summer when father had visitation with the children. This
provision was included in the commissioner's recommendations and
incorporated into the final decree. In neither mother's
exceptions to the commissioner's report nor to the final decree
did mother contest this provision. The parties did not file a
transcript of the hearing on exceptions held before the trial
court. Therefore, the record does not indicate that this
objection was preserved for appeal, and we do not address it
further. Rule 5A:18. See Dukelow v. Dukelow, 2 Va. App. 21,
24-25, 341 S.E.2d 208, 209-10 (1986).
Accordingly, the decision of the circuit court is
summarily affirmed.
Affirmed.
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