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.
Present: Judges Coleman, Bumgardner and Lemons Argued at Salem, Virginia
MEMORANDUM OPINION [*]
DONALD W. LEMONS JUDGE
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).
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 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 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 ...