JUNE 22, 1999

Record No. 2674-98-4





Richard B. Potter, Judge

Present: Judges Bray, Annunziata and Frank


(Robert William Lyford Hutchins, pro se,
on brief).

No brief for appellee.

Robert William Lyford Hutchins (father) appeals
the decision of the circuit court granting his motion to modify
the child support paid to Rosana L. Carrillo (mother). In a
previous appeal, this Court reversed the order of the circuit
court denying Hutchins’ appeal for failure to timely post the
appeal bond and remanded this matter to the circuit court
"with instructions to proceed as if father timely satisfied
the appeal bond requirement of Code Sect. 16.1-296(H)." Hutchins
v. Carrillo
, 27 Va. App. 595, 614, 500 S.E.2d 277, 286
(1998). In the current appeal, father contends that the trial
court erred by (1) failing to proceed as if father timely
satisfied the appeal bond requirement of the earlier appeal; (2)
failing to backdate the final decree to the time of the July 17,
1997 appeal; (3) improperly adjusting father’s child support
obligation for monetary support provided for other children; (4)
failing to adjust father’s child support obligation for tool
bills generated for the production of income; (5) finding
orthodontic care constituted an extraordinary medical or dental
expense under Code Sect. 20-108.1(B)(8); (6) failing to find
that portions of the child support that deviated from the
presumptive amount paid to date were earmarked for specific
expenses and continuing those payments; and (7) failing to find
that ordering the non-custodial parent to pay for orthodontic
expenses was unconstitutional and a violation of equal
protection. Upon reviewing the record and opening brief, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. See Rule

Effective Date for Modified
Child Support

In his first two issues, father contends that
the trial court failed to implement this Court’s mandate on
remand when the trial court ordered the modified child support to
begin as of October 1, 1998, rather than retroactive to July 17,
1997, the date the circuit court denied father’s previous appeal.
We find no error.

Code Sect. 20-108 provides "[n]o
support order may be retroactively modified, but may be
modified with respect to any period during which there is a
pending petition for modification, but only from the date that
notice of such petition has been given to the responding
party." (Emphasis added.) The trial court was authorized,
but not required, to make the modified support order effective as
of a date no earlier than when mother received notice of the
pending petition. However, the effective date was a matter left
to the discretion of the trial court. The trial court’s decision
to make the modified child support effective as of the start of
the month following entry of its final decree was not an abuse of
discretion. Therefore, we find no error.

Determination of Child

Father also challenges the circuit court’s
decisions concerning modification of the presumptive amount of
child support. Father contends that the trial court failed to
adequately consider his support for the child of his new marriage
and the expense he incurred to purchase tools needed in his
trade. See Code Sect. 20-108.1(B)(1) and (5).

As the party seeking to modify support, father
was required to prove a material change in circumstances and that
the change justified altering the amount of support. See Yohay
v. Ryan
, 4 Va. App. 559, 566, 359 S.E.2d 320, 324 (1987).

A material change in
circumstances, standing alone, does not provide a
basis for the trial court to modify its support
decree. A modification is appropriate only after
the court has considered the material change in
circumstances in relation to the factors set
forth in Code Sect. 20-108, namely, the present
circumstances of both parties and the benefit of
the children. Thus, in a petition for reduction
of support, the trial court must assess whether
the requested reduction, based on a material
change in circumstances, is justified in light of
the overall circumstances of both parties and the
impact on the needs of the children.

Id. In addition, "after 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." Richardson
v. Richardson
, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991)
(emphasis in original deleted; emphasis added). Code
Sect. 20-108.1(B)(1) authorizes a trial court to deviate
from the amount of child support computed pursuant to the Code
Sect. 20-108.2 statutory guidelines when it finds
application of the guidelines "would be unjust or
inappropriate in a particular case." Code
Sect. 20-108.1(B). The deviation "shall be determined
by relevant evidence" pertaining to certain factors set out
in the statute. "If the applicability of the factors is
supported by the evidence and the trial judge has not otherwise
abused his or her discretion, the deviation from the presumptive
support obligation will be upheld on appeal." Richardson,
12 Va. App. at 21, 401 S.E.2d at 896.

Father contends that the trial court failed to
adequately consider the monetary support he pays for the daughter
of his new marriage. Evidence relating to the "actual
monetary support for other children" is a factor that the
trial court may consider as warranting a deviation from the child
support guidelines. Whether to grant any deviation is a matter
left to the discretion of the trial court. The trial court
granted father a $200 reduction in gross monthly income as a
deviation from the statutory guidelines based upon his
"actual monetary support for other children." See
Code Sect. 20-108.1(B)(1). The evidence supports the trial
court’s decision, and we find no abuse of discretion.

Father also contends that the trial court
failed to consider the costs he incurs to buy tools used in his
work as an auto mechanic. Among the factors which the trial court
may consider when deviating from the child support guidelines is
"[d]ebts incurred for production of income." See
Code Sect. 20-108.1(B)(5). Father testified that he pays an
average of $400 a month to buy tools. He produced bills for some
tool purchases and tax forms listing unreimbursed business
expenses. We cannot say that the trial court erred by refusing to
find that father’s work-related expense of purchasing tools
warranted further reduction in father’s gross income.

Orthodontic Expenses

Father also raises several issues related to
his payment of orthodontic expenses for the parties’ children.
Father contends that, because there was no evidence that the
orthodontia was medically necessary, the trial court erred by
classifying the orthodontic expenses as extraordinary medical or
dental expenses for purposes of Code Sect. 20-108.1(B)(8) or
Sect. 20-108.2(D). He noted that the orthodontic treatment
of the parties’ children was halted for approximately fifteen
months, although he continued to make the payments.

Mother testified that father urged her to begin
orthodontic treatment for the older child. She also testified
that she used father’s payments to pay approximately $1,500 as
deposits on the orthodontia. She further testified that the
anticipated additional expenses for the parties’ two sons were
$2,838 and $1,866, respectively, and that she continued to incur
$267 in monthly orthodontic costs. Both parties testified that
father’s insurance did not cover all orthodontic expenses.

Code Sect. 20-108.2(D) authorizes the
trial court to add to the child support calculation
"extraordinary medical and dental expenses," which are
defined in the statute as "uninsured expenses in excess of
$100 for a single illness or condition
. . . ." Based upon mother’s testimony that
she paid $267 each month for uninsured orthodontic expenses, the
trial court added that amount to the total amount of child
support. The trial court rejected father’s argument that
orthodontic expenses were not medically necessary, noting that
"orthodontics is a necessity for a child’s well-being,
for a child’s self-esteem, if not for the medical necessity
of being able to eat properly or growing up in the future with a
set of teeth that can work properly." Because the
orthodontic expenses satisfied the statutory definition, we find
no error in the trial court’s classification of the expenses as
extraordinary for purposes of inclusion in child support.

The trial court calculated current child
support based upon the current payments for orthodontics. While
father contended that previously paid funds intended to pay for
orthodontia were used by mother for living expenses, we find no
error in the trial court’s decision to incorporate into the child
support calculation proven current expenses.

Constitutional Challenges

Finally, father contends that the court’s order
requiring him, a non-custodial unmarried parent, to pay for
orthodontic expenses violated his right to equal protection
because similarly situated married parents could not be ordered
to pay for orthodontia. Solely for purposes of this analysis, we
will assume, though not decide, father’s underlying premise
is correct. See generally Morris v. Commonwealth
ex rel. Morris
, 13 Va. App. 77, 83, 408 S.E.2d 588, 592

"It is firmly established that all actions
of the General Assembly are presumed to be constitutional.
Therefore, the party assailing the legislation has the burden of
proving that it is unconstitutional . . . ." Etheridge v.
Medical Center Hospitals
, 237 Va. 87, 94, 376 S.E.2d 525, 528
(1989) (citations omitted). Father identified two classes of
similarly situated parents that he alleged were treated
differently, i.e., married parents and unmarried parents.
While illegitimacy is a classification which has been afforded
higher scrutiny, see, e.g., Pickett v. Brown,
462 U.S. 1 (1983), father has not demonstrated that the
classification he challenges must satisfy more than the rational
basis test. See Etheridge, 237 Va. at 103-04, 376
S.E.2d at 533-34.

"The rational basis test is satisfied ‘if
the legislature could have reasonably concluded that the
challenged classification would promote a legitimate state
purpose.’" Id. at 104, 376 S.E.2d at 534.
"’Child support has long been recognized as an obligation
owed to the infant child . . . [which] duty arises
from principles of natural law.’" Hur v. Department of
Soc. Servs.
, 13 Va. App. 54, 58, 409 S.E.2d 454, 457 (1991)
(citation omitted). The legislature reasonably could have
concluded that legitimate state purposes were served by ensuring
that children whose parents were not married continued to receive
adequate financial support, including payments for medical
expenses incurred. Therefore, father has failed to demonstrate
that the inclusion in the child support calculations of expenses
satisfying the definition of extraordinary medical expenses
violated his right to equal protection.

Accordingly, the decision of the circuit court
is summarily affirmed.


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