Terrence M. Hackett v. Shirley A. Hackett ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
TERRENCE M. HACKETT
MEMORANDUM OPINION * BY
v. Record No. 2640-97-2 JUDGE DONALD W. LEMONS
MARCH 23, 1999
SHIRLEY A. HACKETT
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Terrence M. Hackett, pro se.
No brief or argument for appellee.
Terrence M. Hackett contends that the trial court erred in
failing to calculate the presumptive amount of child support;
imputing income to him; failing to provide a written explanation
for a deviation from the child support guidelines; and ordering
him to pay child support arrearage. We hold that the trial
court erred in failing to calculate the presumptive amount of
child support and failing to provide a written explanation in
the order or by reference for a deviation from the child support
guidelines and remand for the purposes of compliance with Code
§§ 20-108.1 and 20-108.2 and recalculation of arrearages, if
any.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
BACKGROUND
The parties, Terrence M. Hackett (husband) and Shirley A.
Hackett (wife), were divorced on September 24, 1997. The
parties have one child born of the marriage, Erin Colleen
Hackett, born October 20, 1983, whose support is the subject of
this appeal.
The parties were separated on December 1, 1995. On January
29, 1996, a pendente lite hearing was held in the Circuit Court
of the County of Henrico. Evidence introduced at the hearing
related only to the amount of temporary child support to be
awarded. The wife testified that the husband "was terminated
from his job because he used drugs at work and he was placed on
disability and lost his nursing RN license and anesthesia
license from the State Board of Nursing." The husband testified
that he was currently unemployed and that the disability
payments he had been receiving from his insurance company
terminated on December 23, 1995. The husband also introduced
evidence relating to his employment search both in and outside
of the Richmond area.
In the order for pendente lite relief, the court found that
the husband was voluntarily unemployed. The court imputed
income to him in the amount of $3,500 per month, and ordered the
husband to pay child support of $464.73 per month. The husband
noted his objection to the order, asserting that although he had
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been unemployed for two years prior to the date of the hearing
and had been receiving disability payments, the payments had
terminated. The husband also stated that he had been actively
seeking employment and that income had been improperly imputed
to him.
On January 1, 1997, the husband became a member of the
full-time faculty at Commonwealth College, with an annual salary
of $22,500. On May 11, 1997, the husband sought a reduction in
his child support obligation. This motion was heard on May 19,
1997. By letter dated May 20, 1997, the court imputed income to
the husband in the amount of $13,500 per year stating, "a
realistic income for Mr. Hackett is $36,000 annually." 1 The
court ordered the wife’s counsel to calculate child support
payments based on a gross monthly income of $3,000 per month for
the husband and $3,833 per month for the wife, with an effective
date of July 1, 1997.
On July 3, 1997, the husband filed a pro se "Motion to
Rehear, Reconsider, and Reverse its Order of May 20, 1997." On
September 9, 1997, the wife filed a motion to "Establish
Arrearage and for Presentation of Final Decree of Divorce and a
Payroll Deduction Order."
1
This new figure was $7,000 less per annum than the figure
utilized by the court one year earlier.
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On September 22, 1997, a third hearing was held. The
husband presented evidence that he alleged showed a material
change in circumstances. The husband stated that he suffered
from a drug dependency and that treatment for his illness had
resulted in the loss of his professional nursing license.
On September 24, 1997, the final decree of divorce was
entered. Pursuant to its order, the court found that the
husband was voluntarily underemployed and that he had the
ability to earn $3,000 per month. The husband was earning
$1,875 gross per month; consequently the court imputed $1,125
per month to him. The husband was ordered to pay child support
in the amount of $300 per month. The court also found that as
of September 22, 1997, the husband was in arrears in the payment
of previously ordered pendente lite child support in the amount
of $2,711. The court ordered that the husband pay an additional
$100 per month until the arrearage was satisfied.
On appeal, the husband argues that the trial court erred in
failing to calculate the presumptive amount of child support
according to the statutory guidelines. The husband also argues
that the court erred in failing to provide written findings in
the order or incorporated by reference that would rebut the
presumptive award under the guidelines. The husband contends
that because his income was involuntarily reduced due to his
addiction and loss of his professional nursing license, the
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court abused its discretion in imputing income to him. Finally,
the husband maintains that the court improperly ordered him to
pay arrearages.
I. STATUTORY GUIDELINES
In determining the amount of child support, a trial court
must first apply the child support guidelines 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 of 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).
By letter dated May 20, 1997, the court stated that it
"fe[lt] that a realistic income for . . . [the husband] is
$36,000 annually. This takes into account his present mental
and physical condition, his past ability to earn, and what the
Court feels he can realistically earn in the present market."
The court ordered the wife’s counsel to recalculate the support
payments based upon "$3,000 for Mr. Hackett and $3,833 for Mrs.
Hackett."
At the hearing on September 22, 1997, the husband presented
evidence that he alleged showed a material change in his
circumstances, including his drug dependency and subsequent
treatment that resulted in the loss of his professional nursing
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license. In the final divorce decree entered on September 24,
1997, the court found that the husband was "voluntarily
underemployed" with an earning capacity of "$3,000 per month."
The court ordered the husband to pay child support of $300 per
month. The court stated that this amount was "in accordance
with the provisions of §§ 20-108.1 and 20-108.2 of the Code of
Virginia and the child support guidelines worksheet attached
hereto." Although we recognize the efforts made by the husband
to overcome his addiction and his success in having his license
to practice nursing restored, because there is no evidence that
his addiction resulted from a medically prescribed course of
treatment or some other non-voluntary cause, the trial court’s
finding that 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 or incorporated by reference to
support its deviation from the guidelines. Although in its
final decree of divorce the court referred to "child support
guidelines worksheet attached hereto" as the basis for its
award, the only child support guidelines worksheet contained in
the record is that used to calculate the pendente lite award.
From the record of the case it is clear that the information in
that guidelines worksheet was outdated and could not have formed
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the basis of the award in the final decree. 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 reverse and remand this case to the trial court for
compliance with Code §§ 20-108.1 and 20-108.2.
II. ARREARAGES
The husband argues that the trial court erred in finding
that he was in arrears in his child support payments. Because
the arrearages calculated by the court in its final divorce
decree as of September 22, 1997 are based upon the trial court's
calculation of the husband'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.
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III. CONCLUSION
Based upon the foregoing, we affirm the trial court's
finding that the husband’s termination from his employment was
voluntary. We hold that the trial court erred in failing to
calculate the presumptive amount of child support and in failing
to provide written findings in the order or incorporate written
findings by reference 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 and determination of
arrearages if any.
Affirmed in part,
reversed and
remanded in part.
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