HYLTON v. HYLTON


HYLTON v. HYLTON

(unpublished)


MARCH 16, 1999
Record No. 2307-96-3

MYLES TALBERT HYLTON

v.

CHERYL ANN PRICE HYLTON

FROM THE CIRCUIT COURT OF THE CITY OF SALEM
Kenneth E. Trabue, Judge Designate
Argued at Salem, Virginia
Present: Judges Coleman, Bumgardner and Lemons
MEMORANDUM OPINION[1] BY JUDGE DONALD W. LEMONS
Jim H. Guynn, Jr. (Myles T. Hylton, on briefs),
for appellant.

Charles B. Phillips (Phillips & Swanson, on
brief), for appellee.


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 Sect. 20-108.1(B).

BACKGROUND

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 Sect. 20-108.1(B), and that the court erred
further in failing to explain its deviation from the presumptive
amount of the guidelines.

At the next hearing, held on June 6, 1996,
Hylton again testified about what he claimed constituted a full
disclosure of his current income and his ability to pay. He
testified that his income for the first five months of 1996 was
$5,000. The court noted that no payments had been made since the
September 10, 1995 adjudication of an arrearage of $825. Tilley’s
counsel informed the court that he had reviewed the child support
checks admitted into evidence on February 27, 1996 and that the
arrearages remained.

The order for the June 6, 1996 hearing was
entered on August 20, 1996. The court ordered payment of an
arrearage of $5,975 as of May 25, 1996. The court ordered that
the $625 per month be paid and that Hylton pay the attorney’s
fees of $1,000 as stated in its June 6 order.

Hylton filed objections to the August 20 order,
arguing that the court erred in failing to consider evidence he
claims proved that he was not in arrears. Hylton again objected
to the court’s failure to determine the presumptive amount of
child support, and its related failure to explain its deviation
from the presumptive amount. Hylton argued that the court
improperly imputed income to him, when his income had been
involuntarily reduced. Hylton also objected to the imposition of
the attorney’s fees, and argued that the failure of the judge to
recuse himself was motivated by a bias against him.

On appeal, Hylton argues that because his
income was involuntarily reduced from $50,000 per year to
approximately $1,000 per month, the court erred in failing to
calculate the presumptive child support amount based upon his
current income. Hylton argues that the trial court also erred in
imputing income to him in the amount of $50,000 per year.

Hylton maintains that the "actions of the
trial court constitute an abuse of discretion in the determining
[of] the child support obligation, holding the defendant in
contempt, and the awarding attorney’s fees to [Tilley]."
Hylton contends that although the court allowed him to appear and
present evidence following its September 10, 1995 order at the
hearings of February 27, 1996, and June 6, 1996, the court did
not consider his evidence. He states that the court’s failure to
consider his evidence resulted in a child support award not based
upon his "then current earnings," which amounted to an
abuse of its discretion. Finally, he alleges that the court’s
order that he pay attorney’s fees and be held in contempt for his
failure to pay the arrearage was similarly an abuse of its
discretion.

I. STATUTORY GUIDELINES

In determining the amount of child support, a
trial court must first apply the child support guidelines of Code
Sect. 20-108.2 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
Sects. 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 Sect. 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 from 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
Sect. 20-108.1(B)(3). A 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).

At the hearing on August 23, 1995, the court
heard evidence that Hylton had been terminated from his
employment as a practicing attorney due to absenteeism. Tilley
introduced uncontroverted evidence that at the time he was fired,
Hylton was earning a salary of $50,000 per year. In its order
dated September 10, 1995, the court ordered the amount of child
support to increase from $325 per month to $625 per month, but
ordered that the increase be made "without prejudice"
for Hylton to "appear and present evidence that he was
discharged from his former employment of $50,000 per year without
fault on his part . . . ." At the hearing on February
27, 1996, the court heard testimony from Hylton about his current
income as a self-employed attorney and his attempts to find
employment in both legal and non-legal fields.

In its order dated June 6, 1996, the court
ordered Hylton to pay child support in the amount of $625 per
month, finding that he is "capable of earning sufficient
income with which to pay the child support." By its final
order of August 20, 1996, the court again ordered child support
of $625 per month. The trial court’s finding that Hylton’s
absenteeism resulted in his termination and that, consequently,
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 to support its deviation from
the guidelines. 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, therefore, reverse and remand this case to
the trial court for compliance with Code Sects. 20-108.1
and 20-108.2. If the

evidence before the court is sufficient, no
additional evidence need be taken to make appropriate findings in
the order.

II. ARREARAGES

Hylton argues that the trial court erred in
finding that he was in arrears in his child support payments.
Because the arrearages in the court’s August 20, 1996 order are
based upon the trial court’s calculation of Hylton’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 Sects. 20-108.1 and 20-108.2. Tilley may be
entitled to support pursuant to her petition for modification
retroactive to the date that such petition has been given to
Hylton. See Code Sects. 20-74, 20-108.

III. CONTEMPT

[A]ny order of court requiring support of a
spouse or children shall remain in full force and effect
until reversed or modified by judgment of a superior court,
and in the interim the order shall be enforceable by the
court entering it and the court may punish for violation of
the order as for contempt. . . .

Code Sect. 20-68.

Obviously the power to decide includes the
power to decide wrong, and an erroneous decision is as
binding as one that is correct until set aside or corrected
in a manner provided by law. Consequently . . . where the
court has jurisdiction of the parties and of the subject
matter of the suit and the legal authority to make the order,
a party refusing to obey it, however erroneously made, is
liable for contempt. Such order, though erroneous, is lawful
within the meaning of contempt statutes until it is reversed
by an appellate court. . . . Of course a party cannot be
guilty of contempt of court for disobeying an order which the
court had no authority of law to make, but if a court has
jurisdiction of the parties and legal authority to render the
order, then it must be obeyed even though it was erroneous or
improvidently entered.

Robertson v. Commonwealth, 181 Va. 520,
537, 25 S.E.2d 352, 359 (1943) (citations omitted); see also
Potts v. Commonwealth, 184 Va. 855, 861, 36 S.E.2d 529,
531 (1946) ("[a] dissatisfied litigant should challenge the
correctness of an adverse judgment or ruling by an appeal and not
by disobedience of such order or by interfering with or
obstructing the judicial processes").

By its orders of June 6, 1996 and August 20,
1996, the court ordered Hylton to pay child support of $625 per
month. Although we remand for the purpose of calculation of the
presumptive amount of support and written justification of
deviation from that amount, Hylton was not permitted to ignore
the court’s support order. Hylton’s failure to comply was in
violation of both orders, and the court did not abuse its
discretion in finding him in contempt.

IV. ATTORNEY’S FEES

Similarly, it was not an abuse of discretion to
order Hylton to pay attorney’s fees to Tilley in the amount of
$1,000. The awarding of attorney’s fees is a matter within the
sound discretion of the trial court. See Graves v.
Graves
, 4 Va. App. 326, 357 S.E.2d 554 (1987); D’Auria v.
D’Auria
, 1 Va. App. 455, 340 S.E.2d 164 (1986). There has
been no showing of an abuse of the trial court’s discretion.

V. JUDICIAL BIAS

Upon review of this record, we find absolutely
nothing to support a claim of judicial bias.

VI. CONCLUSION

Based upon the foregoing, we affirm the trial
court’s finding that Hylton’s termination from his employment was
voluntary, and we affirm the trial court’s award of attorney’s
fees. We hold that the trial court erred in failing to calculate
the presumptive amount of child support and in failing to provide
a written explanation for a deviation from the child support
guidelines, and we reverse and remand with directions to comply
with Code Sects. 20-108.1 and 20-108.2.

Affirmed in part,

reversed and remanded,

in part.

 

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.