E. Anthony Shields v. Barbara R. Shields ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued at Alexandria, Virginia
E. ANTHONY SHIELDS
MEMORANDUM OPINION * BY
v. Record No. 1277-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 2, 1998
BARBARA R. SHIELDS
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Ted Kavrukov (Kavrukov, Mehrotra & DiJoseph,
on brief), for appellant.
No brief or argument for appellee.
E. Anthony Shields (father) appeals the trial court's order
modifying his child support obligation to Barbara R. Shields
(mother). Father contends the trial court erred in: (1)
recognizing and enforcing the parties' oral agreement to increase
child support payments; and (2) ordering the modification to
apply retroactively. For the following reasons, we reverse.
I.
Father and mother were married in New York on October 29,
1986 and divorced in Virginia on January 9, 1992. One child was
born of the marriage on July 7, 1989. Under the parties'
separation and property settlement agreement dated January 16,
1991, they shared joint custody of the child, whose primary
residence was with mother, and father had "liberal visitation."
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Father agreed to pay mother $525 per month in child support as
well as to provide health insurance and a portion of certain
related expenses. Additionally, the parties "shall be entitled
to re-negotiate the amount of child support for a change to
commence on September 1, 1992."
Each party signed the agreement before a Notary Public, and
Article XV provided that "No modification or waiver of any of the
terms of this Agreement shall be valid unless in writing and
executed with the same formality as this Agreement."
Mother subsequently filed a petition for child support in
the District of Columbia Superior Court, and, on April 2, 1996,
father filed a verified answer requesting dismissal on the ground
that URESA prohibited a Washington, D.C. court from awarding
child support that was already awarded in Virginia. The District
of Columbia Superior Court dismissed the petition. On the same
day, father also filed a verified statement for enrollment of the
Virginia child support decree. In both his verified answer and
his verified statement, father stated:
Since the execution of the Agreement in
January of 1992, the parties have agreed to
an initial increase of the support amount to
Six Hundred dollars ($600.00) and, more than
one year ago, again agreed to increase the
support amount to Eight Hundred dollars
($800.00) per month. [Father] is not
delinquent in his payments of support and is
currently continuing to pay $800.00 each
month per agreement of the parties.
(Emphasis added). Additionally, father's verified statement
prays [the Superior] Court to [sic]: (1)
That the clerk register the Final Judgment of
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Divorce incorporating the Property Settlement
Agreement of the parties as a foreign child
support order in the District of Columbia
. . . [and] (2) That child support shall
remain payable to [mother] directly in the
amount of eight hundred dollars ($800.00) per
month.
The record does not reveal the outcome of the action in the
District of Columbia Superior Court.
On November 29, 1996, mother filed a motion for
redetermination of child support and clarification of visitation
rights in the Virginia trial court. Mother stated that the
child's financial needs had changed, as had the ability of father
to provide increased support. She also stated that father had
failed to make payments in April 1995, June 1995, and August
1996. Mother requested that she be awarded child support in
accordance with the statutory guidelines.
At a hearing on February 28, 1997, mother presented evidence
of the parties' renegotiated agreement, including father's
verified statement filed in the District of Columbia Superior
Court. Father denied that the renegotiation had taken place.
The trial court found "the parties renegotiated the amount
[father] is required to pay for child support from $525.00 per
month to $800.00 per month," and awarded mother $800 per month in
child support. The trial court ordered father to pay the
shortage of $275 per month for November 1996, December 1996,
January 1997, and February 1997, when he paid only $525 per
month. After the parties offered evidence on the arrearage, the
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court also ordered father to pay $800 per month for April and
June 1995, and $400 for August 1996. Father's motion for
reconsideration was denied on April 9, 1997.
II.
Father contends the trial court erroneously recognized and
enforced the parties' agreement to modify the child support
amount because the agreement did not meet the formality
requirements of their property settlement agreement and also
failed to determine the presumptive guideline amount under Code
§ 20-108.2. We hold that father's verified answer was a
sufficiently formal writing to establish a material change in
circumstances. However, the trial court erred when it accepted
the modification without first determining the presumptive
guideline amount.
"'The trial court's decision, when based on an ore tenus
hearing, is entitled to great weight and will not be disturbed
unless plainly wrong or without evidence to support it.'"
Orlandi v. Orlandi, 23 Va. App. 21, 28, 473 S.E.2d 716, 719
(1996) (quoting Venable v. Venable, 2 Va. App. 178, 186, 342
S.E.2d 646, 651 (1986)). "In cases involving . . . a property
settlement agreement providing for child support, the court's
continuing authority to modify child support may be exercised
only upon a showing of a material change in circumstances."
Orlandi, 23 Va. App. at 26, 473 S.E.2d at 718-19.
In the instant case, the trial court found the parties had
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renegotiated the amount of monthly child support from $525 to
$800. Father's contention to the contrary notwithstanding, this
finding was supported by the evidence, including mother's
testimony and father's sworn statements submitted to the District
of Columbia Superior Court. Father's signed statement of April
2, 1996 indicated that he was "currently continuing to pay $800
each month per agreement of the parties" and that the agreement
was reached "more than one year ago." The parties' renegotiation
constituted a material change in circumstances and justified
modification of the child support award. Consequently, the trial
court properly recognized the parties' agreement and determined
that modification of the support award was warranted.
"[W]hen a judge determines that a material change in
circumstance has occurred . . . the initial step to determine how
to modify the support award is to calculate the amount presumed
to be correct according to the guidelines." Hiner v. Hadeed, 15
Va. App. 575, 579, 425 S.E.2d 811, 813 (1993). "Thus the
starting point is the presumptive amount of child support under
the guidelines, not the agreed amount of child support."
Orlandi, 23 Va. App. at 29, 473 S.E.2d at 720.
Should the trial judge conclude that
"application of such guidelines would be
unjust or inappropriate in a particular case
as determined by relevant evidence pertaining
to the factors set out in [Code] §§ 20-107.2
and 20-108.1," the court may depart from the
statutory schedule, provided the attendant
order adequately explains the deviation.
Cooke v. Cooke, 23 Va. App. 60, 63, 474 S.E.2d 159, 160 (1996)
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(quoting Code § 20-108.2(A)). "Because these factors may be
reflected in the [parties'] . . . agreement, the agreement may
therefore be the basis for deviating from the guidelines."
Moreno v. Moreno, 24 Va. App. 227, 234, 481 S.E.2d 482, 486
(1997).
Here, no evidence established that the trial court
calculated the presumptive amount of child support under the
guidelines. Instead, the trial court recognized the parties'
agreement and modified the award to reflect the agreed amount.
Although the agreement may have provided grounds for deviation
from the guideline amount, see id., the trial court's failure to
calculate the presumptive amount of support first was error.
Consequently, we reverse the award of child support and
remand the issue to the trial court for proceedings consistent
with this opinion. 1
Reversed and remanded.
1
Additionally, father contends the trial court erroneously
ordered retroactive modification of child support. Because we
reverse on other issues, it is unclear whether this question will
arise on remand. However, we note that any modification of a
child support award could become effective "only from the date
that notice of [mother's] petition has been given to the
responding party." Code § 20-74.
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