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Milam v. Milam

Court of Appeals of Virginia

November 17, 2015


Page 536

[Copyrighted Material Omitted]

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J. Burns Earle, III (Miller, Earle & Shanks, PLLC, on briefs), for appellant.

Peter W. Buchbauer (Buchbauer & McGuire, P.C., on brief), for appellee.

Present: Judges Petty, Alston and Senior Judge Felton.


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[65 Va.App. 446] WILLIAM G. PETTY, JUDGE.

Kirk T. Milam (" father" ) assigns nine errors to the circuit court's award of increased child support. He assigns errors to the court's factual finding of income for Sheila J. Milam (" mother" ), to the court's factual finding of his income, and to the court's resulting determination of his child support obligation. Father argues, among other things, that the circuit court erred in increasing his child support obligation because his motion was entitled " Motion to Reduce Child Support" and mother did not expressly present a request for an increase. [65 Va.App. 447] He additionally argues that the circuit court erred in including his adult son in mother's household for purposes of calculating the applicable

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poverty level pursuant to Code § 20-108.2(G)(3)(d). He also argues that the court erred in failing to include in mother's income the spousal support he was obligated to pay, though she did not receive it all. He argues further that the circuit court erred in setting the conditions for the suspension of his sentence after the court found him guilty of contempt. For the reasons set forth below, we affirm in part and reverse and vacate in part the circuit court's ruling.


On appeal, we view the evidence " 'in the light most favorable to the prevailing party below and its evidence is afforded all reasonable inferences fairly deducible therefrom.'" Bristol Dep't of Soc. Servs. v. Welch, 64 Va.App. 34, 40, 764 S.E.2d 284, 287 (2014) (quoting Logan v. Fairfax Cty. Dep't of Human Dev., 13 Va.App. 123, 128, 409 S.E.2d 460, 462, 8 Va. Law Rep. 783 (1991)). In this case, mother prevailed below.

Mother and father were married in 1994 and had five children together. At the time of the modified final divorce decree on April 9, 2012, three of the children were minors. One son was over eighteen years old but had not yet graduated from high school. These four children continued to live with mother during the period relevant to this appeal.

On May 3, 2012, father appealed to this Court the final divorce decree. On June 29, 2012, after his son graduated from high school, father filed " Defendant's Motion to Reduce Child Support and Spousal Support." This Court issued its opinion regarding the final divorce decree on April 30, 2013, affirming in part, reversing in part, and remanding. Milam v. Milam, No. 0837-12-4, (Va. Ct.App. Apr. 30, 2013). After oral argument by the parties, the circuit court issued an order upon remand on July 25, 2014. In that order, the court found that the shared custody guidelines were not presumptive under the circumstances of this case because mother's income was less than [65 Va.App. 448] 150% of the federal poverty guidelines. The court further found that use of the sole custody guidelines was more just and appropriate pursuant to Code § 20-108.2(G)(3)(d). The court calculated the presumptive amount of $1169 for the four children father was obligated to support as of the date of the final divorce decree. It then " rounded up" and established father's child support obligation in the amount of $1170. This obligation had a commencement date of January 1, 2012. The order noted that father's motion to reduce child support would be addressed at a subsequent hearing.

The hearing on father's motion to reduce child support was held on September 24, 2014. The court issued a letter opinion dated November 17, 2014, which was incorporated into the final order dated December 23, 2014.[1] In that letter opinion, the court calculated father's income to be $11,199 per month. The court rejected father's argument that his 2012 income tax return provided the best estimate of his current income. The court concluded it need not rely on the 2012 tax return because it " heard no evidence in support of [father's] inability to file his 2013 tax return." In part, the court reasoned that father's argument was rebutted by father's " own witness's testimony." Specifically, the court noted that father's " Certified Public Accountant testified that he only needed [father's] bank statements in order to file [father's] 2013 tax return." The record indicates, however, that the witness was called by mother, not father. Further, contrary to the court's description, the record indicates that the witness was female, rather than male, and described herself as a tax preparer rather than a Certified Public Accountant. Nonetheless, the court concluded from the witness' testimony that " there was no reason why [father's] 2013 tax return could not be filed." As a result, it rejected the argument that the court should rely on the 2012 tax return, which was the most recently filed one.

Instead, the court agreed with mother that the " most accurate estimation of [father's] income is reflected by his earnings [65 Va.App. 449] thus far in 2014." The earnings were evidenced

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by father's bank deposits and by reimbursement invoices for father's court-appointed work from January to July 2014.

Turning to mother's income, the parties agreed that mother's income from employment alone was about $745 per month. The court found no merit in father's argument that spousal support owed by father should be included in mother's income. The court reasoned that father " ha[d] not paid [spousal support]" and had arrearages in the amount of $23,559.94. The court therefore concluded that father's support obligations should not be included in determining mother's actual income. Further, the court rejected father's reasoning that mother must earn at least $3000 per month because she testified that she tries to tithe to her church 10% of her income, or $300. The court found " there [was] no evidence to support [father's] argument that [mother] actually tithes $300.00 per month."

Having found mother's income to be $745 per month, the court also found that mother's income was below 150% of the federal poverty level for purposes of Code § 20-108.2(G)(3)(d). In making that finding, the court included the parties' adult son in mother's household. The parties agreed that the son lived with mother. The court rejected father's argument that only those children whom he is obligated to support under Code § 20-124.2 should be included in household size. The court reasoned that the federal guidelines base the poverty level on number of persons in the household, without regard to whether those persons are dependents. Although it is undisputed that father has more than ninety days of visitation under the shared custody guidelines, the court found that application of the shared custody guidelines would seriously impair mother's ability to maintain minimal adequate housing and other necessities for her children. Accordingly, the court applied the sole custody guidelines. The court found that father's presumptive obligation was $1380 per month for the support of his three minor children. The court awarded mother that amount.

[65 Va.App. 450] During the same hearing, the court also addressed mother's rule to show cause based on father's failure to pay amounts already ordered by the court. The court found father in contempt and sentenced father to twelve months' incarceration. The court suspended the sentence with five enumerated conditions, including that father pay certain court-ordered payments and arrearages according to the payment plan in the court's December 23, 2014 order. The fifth condition stated,

5. Upon receipt of a sworn affidavit that any payments due are late or unpaid, or that Defendant failed to perform as set forth in these conditions, a [capias] shall issue and Defendant shall be remanded to the custody of the Sheriff of Rappahannock County, Virginia for service of his twelve month jail sentence.

Father appealed the final order to this Court.


" 'We begin our analysis by recognizing the well-established principle that all trial court rulings come to an appellate court with a presumption of correctness. Thus, we will not invalidate a court's decree unless the only reasonable interpretation thereof requires invalidation.'" Stiles v. Stiles, 48 Va.App. 449, 453, 632 S.E.2d 607, 609 (2006) (quoting Riggins v. O 'Brien, 263 Va. 444, 448, 559 S.E.2d 673, 675-76 (2002)). " The court's paramount concern when awarding child support is the best interest of the children." Id. at 456, 632 S.E.2d at 611. " The court must consider the basic needs of the child, the parent's ability to pay, and to the extent that the parent is able to provide more than the basic necessities of life, the degree to which the child should reasonably share in his or her parents' prosperity." Conway v. Conway, 10 Va.App. 653, 658, 395 S.E.2d 464, 466-67, 7 Va. Law Rep. 152 (1990).

A. An Increase In Child Support May Arise from Application of the Statutory Guidelines Even if a Parent Requests a Reduction Only

Father argues that the circuit court erred as a matter of law by increasing his child support obligation even though [65 Va.App. 451] the only motion before the court was entitled

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" Motion to Reduce Child Support." Father argues, " Fundamental rules of pleading provide that no court can base its judgment or decree upon a right which has not been pleaded and claimed." Fadness v. Fadness, 52 Va.App. 833, 843, 667 S.E.2d 857, 862 (2008). Father does not argue that the issue of child support was improperly before the court. Rather, he argues that the court was barred from increasing, instead of reducing, the child support amount because the only motion before the court was to reduce support. We disagree.

" The determination of child support is a matter of discretion for the circuit court, and therefore we will not disturb its judgment on appeal unless plainly wrong or unsupported by the evidence." Oley v. Branch, 63 ...

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