Solomond v. Ball

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Overton
Argued at Alexandria, Virginia

JOHN P. SOLOMOND
OPINION BY
v. Record No. 0953-95-4 JUDGE SAM W. COLEMAN III
MAY 7, 1996
C. LOUISE BALL

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Paul F. Sheridan, Judge Designate

John P. Solomond, pro se.

C. Louise Ball, pro se.

This domestic relations appeal involves the obligation of a

noncustodial parent to pay an amount of child support in excess

of the amount provided by the presumptive guidelines under Code

§ 20-108.2. The trial court ordered the increase in the

noncustodial parent's child support, which deviated from the

guidelines, to enable the parents' two children to transfer from

one private school to a more expensive private school of the

custodial parent's choice. We hold that the trial court erred by

increasing the noncustodial parent's monthly support obligation

because no showing was made on the record of an adequate reason

to further deviate from the presumptive amount of support.

In addition, the father appeals the trial court's holding

that he was $100 in arrears for his January 1995 support payment.

We affirm that holding.
 FACTS AND PROCEEDINGS

John Paul Solomond and C. Louise Ball were divorced in 1988.

The divorce decree granted Ball custody of their two sons,

Phillip McCown Solomond and Matthew Brady Solomond. In 1994,

Ball filed a motion to increase child support because Phillip and

Matthew had been accepted at Corpus Christi School, a private

Catholic school. Prior to the fall of 1994, both children had

attended public school, where they had performed well

academically.
As a result of the 1994 modification hearing, the trial

court held that Phillip's and Matthew's acceptances to attend

Corpus Christi were material changes in circumstances that

justified modifying the existing child support order. The court

determined that the presumptive amount of child support that

Solomond was expected to pay according to the guidelines was

$1,171 per month, based upon Solomond's actual monthly income and

Ball's actual and imputed income of $1,952 per month. However,

because the children incurred substantial additional educational

expenses by attending Corpus Christi, and because Ball's actual

annual income was only $18,000, the trial court held that the

presumptive guideline amount would be "unjust and inappropriate."

Specifically, the court stated that it was deviating from the

guidelines because it would be in the children's "best interests

to take advantage of th[e] educational opportunity" offered by

attending Corpus Christi. Consequently, the court ordered that

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Solomond "should pay 70% of all school-related costs, including

but not limited to expenses of tuition, uniforms, books,

transportation, supplies, registration and testing fees, and

field trips as such expenses and costs are due." In addition,

the court held that "if the children succeed in gaining entrance

to another school whose tuition is higher, this would constitute

a sufficient change in circumstances to re-evaluate the

percentage each parent would be required to contribute."

Solomond objected to the court's 1994 modification order, but he

did not appeal from it.
In March 1995, Ball filed a motion to increase child support

by adjusting the percentage of tuition that Solomond would be

required to pay because Phillip had been accepted to St.

Stephen's, another private school, for the 1995-96 school year

and Matthew had been placed on the school's waiting list. 1

Because the tuition at St. Stephen's is "considerably higher"

than the tuition at Corpus Christi, Ball petitioned the court to

increase the percentage of the children's educational expenses to

be paid by Solomond.

Solomond responded by requesting that the trial court vacate

the August 1994 modified child support order that required him to

pay seventy percent of the children's educational expenses, and

he also requested that the court enter an order limiting his

child support obligation to the presumptive amount under the
1
Matthew was subsequently admitted to St. Stephen's.

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guidelines. Solomond argued that the evidence did not show that

it was necessary or justified for the children to attend private

school, much less to transfer from Corpus Christi to St.

Stephen's. Furthermore, he asserted that his income and

financial resources were inadequate to send the children to

private school, particularly to pay the increased expenses to

attend St. Stephen's.

The trial court held that Phillip's admission to St.

Stephen's and Matthew's placement on the waiting list constituted

a material change in circumstances, and that it would be in the

"best interests" of the children "to take advantage of this

educational opportunity." Accordingly, the court modified the

child support order to require Solomond to pay, in addition to

the presumptive amount provided by the guidelines, the children's

yearly educational expenses in the amount of seventy percent of

the first $8,000 in expenses and fifty percent of expenses

exceeding $8,000.
PRIVATE SCHOOL EXPENSES

Solomond asked the trial court to vacate its 1994 support

order, which deviated from the guidelines and ordered him to pay

a percentage of all private school expenses. A trial court may

modify or vacate a final order within "twenty-one days after the

date of entry, and no longer." Rule 1:1. Here, because the

twenty-one day period had elapsed, the trial court had no

authority to vacate the August 1994 order requiring Solomond to

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pay seventy percent of Phillip's and Matthew's private school

expenses. Because Solomond did not appeal the August 1994 order

and because it now constitutes a final decree, the findings of

fact and conclusions of law contained in that decree are binding

and become the law of the case insofar as the 1994 support award

is concerned. See Hall v. Hall, 9 Va. App. 426, 429, 388 S.E.2d

669, 670 (1990). Therefore, we cannot disturb the trial court's

finding that it was in Phillip's and Matthew's "best interest" to

leave the public school system to attend private school, although

the record does not show a special need for either of them to

attend private school. Furthermore, we cannot disturb the trial

court's holding that the changed circumstance justified deviating

from the guidelines to require the father to pay an additional

sum for the children's private schooling. As the following

discussion demonstrates, however, we are not bound by the

anticipatory language in the August 1994 order that the

children's admission to another school would constitute a

material change in circumstance that would justify a reevaluation

of the father's support obligation.
In Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269 (1994),
we held that "[i]mplicit in the [child support] statutory scheme

is that educational expenses are included in the presumptive

amount of child support as calculated under the Code." Id. at

435, 444 S.E.2d at 275. Code § 20-108.1(B) expressly provides

that when a trial court deviates from the presumptive amount

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recommended by the guidelines, it must provide written findings

of fact that "shall give a justification of why the order varies

from the guidelines." Id. Furthermore, "a conclusory written

statement of [the trial court's] findings" is not sufficient to

justify deviating from the presumptive guideline amount.

Richardson v. Richardson, 12 Va. App. 18, 22, 401 S.E.2d 894, 896

(1991).

In determining whether a noncustodial parent should be

required to pay support to provide for a child's private

educational expenses, other jurisdictions have held that two

conditions must exist: "demonstrated need of the child, and the

parent's ability to pay." See In re Marriage of Stern, 789 P.2d

807, 813 (Wash. Ct. App.), review denied, 797 P.2d 513 (Wash.

1990). These courts have considered factors such as the

availability of satisfactory public schools, the child's

attendance at private school prior to the separation and divorce,

the child's special emotional or physical needs, religious

training, and family tradition. See, e.g., In re Marriage of

Aylesworth, 165 Cal. Rptr. 389, 394 (Cal. Ct. App. 1980); In re

Marriage of Eaton, 894 P.2d 56, 59-60 (Colo. Ct. App. 1995);

Cleveland v. Cleveland, 289 A.2d 909, 913 (Conn. 1971); Rucks v.

Nugent, 594 N.Y.S.2d 379, 381 (N.Y. App. Div. 1993); Evans v.

Craddock, 300 S.E.2d 908, 911-12 (N.C. Ct. App. 1983); Hurley v.

Hurley, 610 A.2d 80, 87 (R.I. 1992); In re Marriage of Stern, 789

P.2d at 814. We find these factors relevant not only for

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determining whether a demonstrated need has been shown for the

child to attend private rather than public school, but also for

determining whether there is justification for requiring a parent

to pay for a child to transfer to a more expensive private

school. When a parent proposes to have a child transfer to

another private school and that change will have a significant

effect on the parents' support obligations, the trial court must

consider, together with each parent's ability to pay, whether a

reason or need is shown to justify a change of schools before

increasing a noncustodial parent's support obligation.
Here, the trial court's only stated reason for increasing

the amount of the father's child support obligation was the

conclusion "that it would be in [Phillip's and Matthew's] best

interest to be able to take advantage of this opportunity." The

court made no written findings of fact, as required by Code

§ 20-108.1, that justified further deviation from the guidelines

to require Solomond to pay an additional amount of child support.

Id. (providing that the court "shall give a justification of why

the order varies from the guidelines"). Although Ball attended

St. Stephen's and testified that it is "the preferred

institution," the record does not demonstrate a need of either

child that was not being adequately met at Corpus Christi, and

that would be served by transferring to St. Stephen's. The only

fact the record establishes is that the tuition at St. Stephen's

is "considerably higher" than that at Corpus Christi.

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Accordingly, the record does not support the trial court's

finding and provides no "justification" for the holding that it

would be in the best interests of Phillip or Matthew to transfer

from Corpus Christi to St. Stephen's. Thus, we reverse the

modification order and remand the support issue for the court to

reinstate a support order at the amount previously established by

the August 1994 order.

"Determination of support awards must be based on

contemporary circumstances and modified in the future as changes

in circumstances occur." Keyser v. Keyser, 2 Va. App. 459, 461,

345 S.E.2d 12, 13 (1986). A trial court may not abrogate its

responsibility to determine that a material change of

circumstance justifies a modification of child support by

entering an order that results in an automatic increase in the

support obligation upon the occurrence of future events. See

Jacobs v. Jacobs, 219 Va. 993, 995-96, 254 S.E.2d 56, 58 (1979).

Here, the trial court set Solomond's support obligation as a

percentage of his children's educational expenses rather than at

a specific monetary amount. Thus, under the trial court's

formula, which is not in accordance with the holding in Jacobs,
Solomond's support obligation automatically increases or

decreases depending upon the changes in the children's actual

expenses. "The statutory scheme provided by the General Assembly

does not contemplate automatic changes or escalator clauses."

Keyser, 2 Va. App. at 461-62, 345 S.E.2d at 14. On remand, the

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trial court is directed to enter an order requiring Solomond to

pay the presumptive guideline amount and an additional amount

that is equivalent to seventy percent of the expenses for the

year that Phillip and Matthew began attending Corpus Christi.

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 JANUARY 1995 SUPPORT PAYMENT

Several days after Solomond sent Ball a check for the

October 1994 child support payment, he notified her that the

funds in his account were insufficient to honor the check and

that her bank would probably debit her account accordingly. When

Ball's bank thereafter notified her that her account would be

debited, she obtained funds from another source to avert the

deficiency. She did not incur a penalty with her bank as a

result of Solomond's defalcation. Thereafter, Solomond gave Ball

a second check for the amount due for the October support payment

plus an additional $100 to reimburse her for any "fees or

aggravation" that she had indicated she might incur. When

Solomond later learned that Ball had not incurred any expenses as

a consequence of his dishonored check, he deducted $100 from his

January 1995 child support payment. The trial court found that

Solomond was in arrears in the amount of $100 for failing to pay

the court ordered amount of support for January 1995.
Solomond may have grounds to recover the $100 in a separate

civil action because it appears that Ball accepted the money even

though she knew that she would not incur any expenses as a result

of the dishonored check Solomond tendered. Accepting Solomond's

contention, for purposes of this opinion, that he is legally

entitled to recoup the $100 he paid Ball on the mistaken belief

that she had incurred expenses, he was not entitled to

unilaterally deduct that amount from his monthly payment in

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disregard of his court ordered support obligation. See Newton v.

Newton, 202 Va. 515, 519, 118 S.E.2d 656, 659 (1961). Because

Solomond's January 1995 support payment did not conform to the

amount of child support that he was ordered to pay, we affirm the

trial court's finding that Solomond owes $100 in child support

arrearages for January 1995. See Sanford v. Sanford, 19 Va. App.

241, 243, 450 S.E.2d 185, 187 (1994) (holding that because the

husband was required to pay spousal support in accordance with

the terms of the support decree, "he was not entitled to credit

the amount he paid in excess of his court-ordered monthly support

against his future support obligations").
In summary, we affirm the trial court's order finding that

Solomond owes $100 in child support arrearages for January 1995.

We reverse the court's order finding that the children's

transfer to St. Stephen's was a change in circumstance that

justified a further deviation from the presumptive support

guidelines. Accordingly, we remand the case to the trial court

with instructions to enter a support order consistent with the

foregoing holding and directions.
Affirmed in part,
reversed in part,
and remanded.

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