Myles Talbert Hylton v. Cheryl Ann Price Hylton ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
MYLES TALBERT HYLTON
MEMORANDUM OPINION * BY
v. Record No. 2307-96-3 JUDGE DONALD W. LEMONS
MARCH 16, 1999
CHERYL ANN PRICE HYLTON
FROM THE CIRCUIT COURT OF THE CITY OF SALEM
Kenneth E. Trabue, Judge Designate
Jim H. Guynn, Jr. (Myles T. Hylton, on
briefs), for appellant.
Charles B. Phillips (Phillips & Swanson, on
brief), for appellee.
Myles T. Hylton contends that the trial court erred in
failing to calculate the presumptive amount of child support;
imputing income to him; neglecting to provide a written
explanation for a deviation from the child support guidelines;
failing to grant his motion for a reduction in child support; and
ordering him to pay child support arrearage. In addition, Hylton
argues that the court was biased against him, and abused its
discretion. We hold that the trial court erred in failing to
calculate the presumptive amount of child support and neglecting
to provide a written explanation for a deviation from the child
support guidelines and remand for the purposes of compliance with
Code § 20-108.1(B).
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
BACKGROUND
The parties, Myles T. Hylton and Cheryl P. Tilley (formerly
Cheryl P. Hylton), were divorced on September 29, 1990. The
parties have one child born of the marriage, Jessica K. Hylton,
born April 2, 1986, whose support is the subject of this appeal.
Pursuant to an order of the Circuit Court of the City of
Radford on September 29, 1990, Tilley was granted primary custody
of Jessica, and Hylton was ordered to pay child support in the
amount of $75 per week. On January 12, 1995, Tilley sought an
increase in child support. On April 4, 1995, Hylton, a licensed
attorney in the Commonwealth of Virginia, filed a pro se petition
seeking a reduction of his child support obligation.
At the hearing on August 23, 1995, Tilley introduced
evidence that Hylton had been terminated from a job with an
annual salary of $50,000 at the law firm Kalbaugh, Pfund and
Messersmith. Evidence was introduced to show that Hylton's
termination was due to unexcused absences from work.
Additionally, Tilley testified that she and Hylton had agreed to
increase the amount of child support by $50 per month. Hylton
did not appear at the hearing.
The court found an arrearage in child support payments in
the amount of $825, and found Hylton in contempt of court for his
failure to pay. The court took his punishment for the contempt
under advisement, pending his payment of the arrearage. The court
increased the amount of the child support payments from $75 per
week to $625 per month. The court did, however, state that the
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increase was to be without prejudice for Hylton to appear and
present evidence to show the court that he was terminated from
his $50,000 per year position through no fault of his own.
Finally, the court assessed attorney's fees against Hylton in the
amount of $1,000.
A second hearing was held on February 27, 1996. At this
hearing, Hylton testified that he was currently self-employed and
using office space in the law firm of Parvin, Wilson, Barnett &
Guynn, where he had formerly been employed. He stated that he
continued to actively seek employment, in both legal and
non-legal positions. Hylton testified that his income for the
previous nine months was $5,500, a monthly amount of $611.11.
Hylton also argued that he was not in arrears for child support,
submitting into evidence copies of cancelled checks and summary
sheets that he alleged showed that he had paid $29,045 in
support. He claimed that this amount constituted an overpayment
of $3,395, not the $825 arrearage alleged by Tilley. The court
did not rule on the issue of the support arrearage, instead
"granting leave to the plaintiff and her attorney to review the
copies of the defendant's cancelled checks and summary sheets
submitted into evidence to determine if an overpayment had been
made."
On May 2, 1996, Hylton filed a Petition for Modification of
Support and Visitation. The order for the February 27, 1996
hearing was entered on June 6, 1996. In the order, the court
confirmed the arrearages of $825 determined on August 23, 1995
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and found that Hylton was in default on his $625 monthly payments
in the amount of $3,425 for a total arrearage of $4,250. Finding
that Hylton "is capable of earning sufficient income with which
to pay the child support," the court ordered the $625 monthly
support obligation to remain in effect. The court also ordered
that the $1,000 award for attorney's fees be docketed as a
judgment against Hylton.
Hylton filed objections in which he argued that he was not
in arrears on his child support, that the court erred in failing
to determine the presumptive amount of child support under Code
§ 20-108.1(B), and that the court erred further in failing to
explain its deviation from the presumptive amount of the
guidelines.
At the next hearing, held on June 6, 1996, Hylton again
testified about what he claimed constituted a full disclosure of
his current income and his ability to pay. He testified that his
income for the first five months of 1996 was $5,000. The court
noted that no payments had been made since the September 10, 1995
adjudication of an arrearage of $825. Tilley's counsel informed
the court that he had reviewed the child support checks admitted
into evidence on February 27, 1996 and that the arrearages
remained.
The order for the June 6, 1996 hearing was entered on August
20, 1996. The court ordered payment of an arrearage of $5,975 as
of May 25, 1996. The court ordered that the $625 per month
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be paid and that Hylton pay the attorney's fees of $1,000 as
stated in its June 6 order.
Hylton filed objections to the August 20 order, arguing that
the court erred in failing to consider evidence he claims proved
that he was not in arrears. Hylton again objected to the court's
failure to determine the presumptive amount of child support, and
its related failure to explain its deviation from the presumptive
amount. Hylton argued that the court improperly imputed income
to him, when his income had been involuntarily reduced. Hylton
also objected to the imposition of the attorney's fees, and
argued that the failure of the judge to recuse himself was
motivated by a bias against him.
On appeal, Hylton argues that because his income was
involuntarily reduced from $50,000 per year to approximately
$1,000 per month, the court erred in failing to calculate the
presumptive child support amount based upon his current income.
Hylton argues that the trial court also erred in imputing income
to him in the amount of $50,000 per year.
Hylton maintains that the "actions of the trial court
constitute an abuse of discretion in the determining [of] the
child support obligation, holding the defendant in contempt, and
the awarding attorney's fees to [Tilley]." Hylton contends that
although the court allowed him to appear and present evidence
following its September 10, 1995 order at the hearings of
February 27, 1996, and June 6, 1996, the court did not consider
his evidence. He states that the court's failure to consider his
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evidence resulted in a child support award not based upon his
"then current earnings," which amounted to an abuse of its
discretion. Finally, he alleges that the court's order that he
pay attorney's fees and be held in contempt for his failure to
pay the arrearage was similarly an abuse of its discretion.
I. STATUTORY GUIDELINES
In determining the amount of child support, a trial court
must first apply the child support guidelines of Code § 20-108.2
to determine the presumptively correct amount of child support.
See Farley v. Liskey, 12 Va. App. 1, 401 S.E.2d 897 (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
amount must be supported by written findings
which state why the application of the
guidelines in that particular case would be
unjust or inappropriate.
Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896
(1991); Code § 20-108.1(B) ("[i]n order to rebut the presumption,
the court shall make written findings in the order, which
findings may be incorporated by reference, that the application
of such guidelines would be unjust or inappropriate in a
particular case"). A trial court's failure to provide sufficient
explanation for a deviation from the presumptive amount from the
guidelines is error. See Pharo v. Pharo, 19 Va. App. 236, 450
S.E.2d 183 (1994).
Income may be imputed to an obligor "who is voluntarily
unemployed or under-employed . . . ." Code § 20-108.1(B)(3). A
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parent's incarceration may constitute voluntary unemployment.
See Layman v. Layman, 25 Va. App. 365, 488 S.E.2d 658 (1997).
Termination from employment that was due to that
parent/employee's larceny from his employer may similarly be
considered voluntary unemployment. See Edwards v. Lowry, 232 Va.
110, 348 S.E.2d 259 (1986). An obligor/parent seeking a
reduction in the amount of his or her child support obligation
"must . . . make a full and clear disclosure about his ability to
pay, and he must show his claimed inability to pay is not due to
his own voluntary act or because of his neglect." Antonelli v.
Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991)
(citations omitted).
At the hearing on August 23, 1995, the court heard evidence
that Hylton had been terminated from his employment as a
practicing attorney due to absenteeism. Tilley introduced
uncontroverted evidence that at the time he was fired, Hylton was
earning a salary of $50,000 per year. In its order dated
September 10, 1995, the court ordered the amount of child support
to increase from $325 per month to $625 per month, but ordered
that the increase be made "without prejudice" for Hylton to
"appear and present evidence that he was discharged from his
former employment of $50,000 per year without fault on his part
. . . ." At the hearing on February 27, 1996, the court heard
testimony from Hylton about his current income as a self-employed
attorney and his attempts to find employment in both legal and
non-legal fields.
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In its order dated June 6, 1996, the court ordered Hylton to
pay child support in the amount of $625 per month, finding that
he is "capable of earning sufficient income with which to pay the
child support." By its final order of August 20, 1996, the court
again ordered child support of $625 per month. The trial court's
finding that Hylton's absenteeism resulted in his termination and
that, consequently, his unemployment was "voluntary," was not
error.
However, the trial court failed to determine the
presumptively correct amount of child support and did not make
written findings in the order to support its deviation from the
guidelines. In Hiner v. Hadeed, 15 Va. App. 575, 581-82, 425
S.E.2d 811, 815 (1993), we said,
[o]nly if trial judges follow the statutory
requirements will Virginia child support
awards conform to the federal and state
legislative mandates designed to create
uniformity in support awards between parents
and children similarly situated. Trial
judges must make the requisite specific
written findings, not solely for the purposes
of appellate review, but, more important, to
enable trial judges in future hearings to
decide whether and how to increase, decrease,
or terminate support. Only by having
specific written findings will trial judges
in subsequent proceedings be able to make
informed decisions on how a change in
circumstances may justify modification or may
justify continued deviation from the
guidelines.
We, therefore, reverse and remand this case to the trial
court for compliance with Code §§ 20-108.1 and 20-108.2. If the
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evidence before the court is sufficient, no additional evidence
need be taken to make appropriate findings in the order.
II. ARREARAGES
Hylton argues that the trial court erred in finding that he
was in arrears in his child support payments. Because the
arrearages in the court's August 20, 1996 order are based upon
the trial court's calculation of Hylton's monthly child support
obligation, we remand the case to the trial court to determine if
any arrearages are owed after it has complied with Code
§§ 20-108.1 and 20-108.2. Tilley may be entitled to support
pursuant to her petition for modification retroactive to the date
that such petition has been given to Hylton. See Code §§ 20-74,
20-108.
III. CONTEMPT
[A]ny order of court requiring support
of a spouse or children shall remain in full
force and effect until reversed or modified
by judgment of a superior court, and in the
interim the order shall be enforceable by the
court entering it and the court may punish
for violation of the order as for
contempt. . . .
Code § 20-68.
Obviously the power to decide includes the
power to decide wrong, and an erroneous
decision is as binding as one that is correct
until set aside or corrected in a manner
provided by law. Consequently . . . where
the court has jurisdiction of the parties and
of the subject matter of the suit and the
legal authority to make the order, a party
refusing to obey it, however erroneously
made, is liable for contempt. Such order,
though erroneous, is lawful within the
meaning of contempt statutes until it is
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reversed by an appellate court. . . . Of
course a party cannot be guilty of contempt
of court for disobeying an order which the
court had no authority of law to make, but if
a court has jurisdiction of the parties
and legal authority to render the order, then
it must be obeyed even though it was
erroneous or improvidently entered.
Robertson v. Commonwealth, 181 Va. 520, 537, 25 S.E.2d 352, 359
(1943) (citations omitted); see also Potts v. Commonwealth, 184
Va. 855, 861, 36 S.E.2d 529, 531 (1946) ("[a] dissatisfied
litigant should challenge the correctness of an adverse judgment
or ruling by an appeal and not by disobedience of such order or
by interfering with or obstructing the judicial processes").
By its orders of June 6, 1996 and August 20, 1996, the court
ordered Hylton to pay child support of $625 per month. Although
we remand for the purpose of calculation of the presumptive
amount of support and written justification of deviation from
that amount, Hylton was not permitted to ignore the court's
support order. Hylton's failure to comply was in violation of
both orders, and the court did not abuse its discretion in
finding him in contempt.
IV. ATTORNEY'S FEES
Similarly, it was not an abuse of discretion to order Hylton
to pay attorney's fees to Tilley in the amount of $1,000. The
awarding of attorney's fees is a matter within the sound
discretion of the trial court. See Graves v. Graves, 4 Va. App.
326, 357 S.E.2d 554 (1987); D'Auria v. D'Auria, 1 Va. App. 455,
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340 S.E.2d 164 (1986). There has been no showing of an abuse of
the trial court's discretion.
V. JUDICIAL BIAS
Upon review of this record, we find absolutely nothing to
support a claim of judicial bias.
VI. CONCLUSION
Based upon the foregoing, we affirm the trial court's
finding that Hylton's termination from his employment was
voluntary, and we affirm the trial court's award of attorney's
fees. We hold that the trial court erred in failing to calculate
the presumptive amount of child support and in failing to provide
a written explanation for a deviation from the child support
guidelines, and we reverse and remand with directions to comply
with Code §§ 20-108.1 and 20-108.2.
Affirmed in part,
reversed and remanded,
in part.
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