Wendy Collins (Alexander) v. Charles Alexander, IV ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia
WENDY COLLINS (ALEXANDER)
v. Record No. 0168-95-2 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
CHARLES ALEXANDER, IV OCTOBER 24, 1995
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Judge
Joan C. McKenna (Rae H. Ely; Rae H. Ely and
Associates, on briefs), for appellant.
John K. Taggart, III (Patricia D. McGraw;
Tremblay & Smith, on brief), for appellee.
This matter arises as a result of this Court's reversal and
remand in the case of Alexander v. Alexander, 12 Va. App. 691,
406 S.E.2d 666 (1991). The original case was initiated by Wendy
Collins (Alexander) (mother) who, in April 1989, filed a Motion
to Show Cause for Failure to Pay Child Support as ordered in the
final decree of divorce entered on May 2, 1986. Charles
Alexander, IV (father) in turn filed a Motion to Terminate
Support. On remand for further proceedings on the issue of child
support, the trial court was to determine the presumptive amount
of support and enter written findings explaining any deviation
made from the guidelines amount. Accordingly, a hearing ore
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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tenus on the issue of the 1989 child support obligation was held
in August 1994. By final order entered on September 12, 1994,
the court modified support, retroactive to July 1, 1989. Under
that order, neither party was obligated to pay child support to
the other. The mother subsequently filed a Motion to Rehear
alleging that the father had fraudulently misrepresented his
income for 1989; the motion was denied. Finding no error in the
proceedings, the trial court's decision as reflected in its order
of September 12, 1994 is affirmed.
The mother contends that the trial court erred in ordering a
modification of support retroactive to July 1, 1989. This claim
is without merit. The effect of this Court's reversal and remand
was to restore the parties to their original position. Nassif v.
The Board of Supervisors, 231 Va. 472, 480, 345 S.E.2d 520, 525
(1986). Under Code § 20-108, support "may be modified with
respect to any period during which there is a pending petition
for modification, but only from the date that notice of such
petition has been given to the responding party." "[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).
The record reveals that the husband filed his motion to
terminate child support on June 6, 1989 and served a copy on the
mother. She was provided with notice of the father's motion to
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terminate support as of July 1, 1989. Thus, the trial court did
not abuse its discretion in deciding to terminate support as of
the filing date of the father's petition. Id.
Moreover, the termination of support retroactive to July 1,
1989 is not barred by the doctrine of laches as the mother
asserts. "'Laches is such neglect or omission to do what one
should do as warrants the presumption that he has abandoned his
claim, and declines to assert his right.'" Pittman v. Pittman,
208 Va. 476, 479, 158 S.E.2d 746, 749 (1968) (citation omitted).
The father was under no obligation to reinstate the case on
remand within a specified time period. Indeed, either party
could have initiated the proceeding. Furthermore, the evidence
fails to show any material change which would justify the
application of the doctrine. See Pretlow v. Pretlow, 177 Va.
535, 552, 14 S.E.2d 381, 387 (1941).
The mother further assigns as grounds for reversal the
father's failure to produce evidence of his 1989 income to
support the trial court's determination of the presumptive amount
of support. She contends that the court therefore erred in
denying her motion to strike and in entering an order terminating
support. There is no merit in either position. It is clear that
the father produced evidence at both the October 1989 and August
1994 hearings that his 1989 income was approximately $5,200 a
month.
The mother next contends that the father's evidence of
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income was fraudulent and that the trial court erred in refusing
to conduct an additional hearing based on these allegations.
"After a court has concluded an evidentiary hearing 'during which
each party had ample opportunity to present evidence, it [is]
within the court's discretion to refuse to take further evidence
on this subject.' In order to demonstrate an entitlement to a
rehearing, a petitioner must show either an 'error on the face of
the record, or . . . some legal excuse for his failure to present
his full defense at or before the time of entry of the decree.'"
Holmes v. Holmes, 7 Va. App. 472, 480, 375 S.E.2d 387, 392
(1988) (citations omitted). Moreover, fraud must be established
"'not by doubtful and inconclusive evidence, but clearly and
conclusively.'" Aviles v. Aviles, 14 Va. App. 360, 366, 416
S.E.2d 716, 719 (1992) (citation omitted).
The record discloses that, while counsel for mother alleged
surprise at father's testimony concerning his income, she
cross-examined him using the 1989 income tax returns which she
had in her possession. When the father hesitated to verify one
of the unsigned tax returns, counsel failed to produce her copy
of the certification of authenticity signed by father's
accountant in response. Counsel also subpoenaed the father's
accountant as a witness for the August 1994 hearing, presumably
to testify to the father's income, but then released him without
calling him. On these facts, we cannot find that the trial court
abused its discretion in refusing to conduct the requested
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hearing.
The mother's last contention that the trial court failed to
justify its decision to deviate from the child support guidelines
and erroneously refused to enforce the parties' agreement as
incorporated into the divorce decree is likewise not supported in
the record.
It is well established that while parties may contract to
provide child support in a manner other than that provided by the
statutory guidelines, the trial court must determine "whether the
agreed provisions for the child would better serve the interest
or 'equities' for the parents and children." Watkinson v.
Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 474 (1991). A
court cannot be precluded by the parents' agreement from
exercising its power to decree child support. Kelley v. Kelley,
248 Va. 295, 298, 440 S.E.2d 55, 56 (1994).
It is also clear that because "there exists a rebuttable
presumption that the amount of the award as determined by the
application of the statutory child support guidelines is the
correct amount . . . [i]n [a] . . . proceeding [to determine
child support] . . . a trial court must first determine the
presumptive amount of child support before considering any other
factors." Alexander v. Alexander, 12 Va. App. 691, 695, 406
S.E.2d 666, 667 (1991).
Whenever a child support award varies from
the guidelines, Code § 20-108.2(A) requires
the trial court to make written findings of
fact "as determined by relevant evidence
pertaining to the factors set out in
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§§ 20-107.2 and 20-108.1" explaining why one
or more of these factors would make it
"unjust or inappropriate" to apply the
guidelines to the case.
Richardson v. Richardson, 12 Va. App. 18, 21-22, 401 S.E.2d 894,
896 (1991).
In accordance with these mandates and based upon the
parties' 1989 income, the trial court determined that the mother
was obligated under the guidelines to pay the father $242.83 a
month in child support. The trial court found it appropriate to
deviate from the guidelines and gave specific reasons for its
decision. He found that under the agreement the father paid
mother $1,000 a month as support so that she could maintain
housing and visit the children. However, the court also found
that the mother did not use the support for those purposes. The
court further found that, while the guidelines required the
mother to pay child support to the father for the last remaining
infant daughter, a deviation was justified to provide the mother
with funds to be used in her attempt to repair the relationship
with that child. The trial court is not required by law to
simply adopt the parties' agreement to provide child support;
such an agreement is but one factor, among many, for the court to
consider in making its award. See Richardson, 12 Va. App. at 20,
401 S.E.2d at 895.
As the justification for deviating from the guidelines and
child support amount is clearly set forth in the trial court's
ruling, the statutory requirements of Code § 20-108.1(B) were
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satisfied.
In accordance with the reasons set forth by this Court, the
decision of the trial court is affirmed.
Affirmed.
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