COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Overton 

Argued at Richmond, Virginia 

GARY M. ZIENTEK 

 MEMORANDUM OPINION* BY 

v. Record No. 1358-97-2 JUDGE LARRY G. ELDER 

 MARCH 3, 1998 

FRANCINE Y. ZIENTEK 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

L. A. Harris, Jr., Judge 

 Andrea R. Stiles (Williams, Mullen, 

Christian & Dobbins, P.C., on briefs), for 

appellant. 

 Janet E. Brown for appellee. 

 Gary M. Zientek ("father") appeals an order of the trial 

court granting his motion to modify his child support obligation 

to Francine Y. Zientek ("mother"). He contends that the trial 

court abused its discretion when it (1) reduced his child support 

obligation to an amount that exceeded the presumptively correct 

amount set forth by Code § 20-108.2 and (2) declined to make this 

reduction retroactive to the date that mother was served with 

notice of his motion. For the reasons that follow, we affirm. 

 I. 

DEVIATION FROM THE PRESUMPTIVELY CORRECT AMOUNT OF CHILD SUPPORT 

 When determining a party's child support obligation at a 

modification hearing, "the court must begin by computing the 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

presumptive amount using the schedule found in Code 

§ 20-108.2(B)." Head v. Head, 24 Va. App. 166, 178, 480 S.E.2d 

780, 786 (1997). "The presumptive amount is rebuttable, however, 

and the court may deviate from the presumptive amount if such 

amount is unjust or inappropriate." Watkinson v. Henley, 13 Va. 

App. 151, 158, 409 S.E.2d 470, 473-74 (1991); see also Code 

§§ 20-108.1, 20-108.2. If the presumptive amount is found to be 

unjust or inappropriate, "any variation from that amount must be 

calculated by adding or subtracting a just and appropriate amount 

from the presumptive amount reflected in Code § 20-108.2, and not 

to or from a previously determined child support award." 

Richardson v. Richardson, 12 Va. App. 18, 19, 401 S.E.2d 894, 895 

(1991); see also Watkinson, 13 Va. App. at 158, 409 S.E.2d at 

474. 

 Whenever a child support award varies 

from the guidelines, Code § 20-108.2(A) 

requires the trial court to make written 

findings of fact "as determined by relevant 

evidence pertaining to the factors set out in 

Code §§ 20-107.2 and 20-108.1" explaining why 

one or more of these factors would make it 

"unjust or inappropriate" to apply the 

guidelines to the case. 

Richardson, 12 Va. App. at 21-22, 401 S.E.2d at 896; see also

Code §§ 20-108.1, 20-108.2. 

 [T]o rebut the presumption of correctness of 

the guidelines, a trial court must make 

written findings of enough detail and 

exactness to allow for effective appellate 

review of the findings. Specifically, these 

findings must identify the factors that 

justified deviation from the guidelines, and 

explain why and to what extent the factors 

justified the adjustment. 
 3 

Richardson, 12 Va. App. at 22, 401 S.E.2d at 897; see also

Solomond v. Ball, 22 Va. App. 385, 391, 470 S.E.2d 157, 159-60 

(1996); Pharo v. Pharo, 19 Va. App. 236, 238, 450 S.E.2d 183, 184 

(1994). 

 "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. 

 We hold that the trial court did not abuse its discretion 

when it reduced father's child support obligation to an amount 

that still exceeded the presumptively correct amount under Code 

§ 20-108.2. The trial court followed the procedural requirements 

of Code §§ 20-108.1 and 20-108.2, and its decision to deviate 

from the guidelines is supported by evidence in the record. 

 First, the trial court followed the procedures required by 

Code §§ 20-108.1 and 20-108.2. The trial court began by 

determining the current presumptively correct amount of father's 

child support obligation. Based on the parties' testimony 

regarding their new custody arrangement, the trial court 

concluded that the shared custody rules of Code § 20-108.2(G)(3) 

applied to this case.1

 It accepted father's calculation that the 

 

 1Mother argues that the trial court erred when it concluded 

that the shared custody rules applied to this case. Although 

mother did not file either a notice of appeal or an opening 

brief, this argument is preserved for our review because mother 

complied with Rules 5A:21(b) and (e) in presenting this question 

and specifying the relief sought. See D'Auria v. D'Auria, 1 Va. 
 4 

presumptively correct amount of his child support obligation 

under the shared custody rules was $1,773 per month.2

 It then 

concluded that the presumptively correct amount of father's 

support obligation was not "appropriate" and explained its 

decision by referring to several of the statutory factors. 

Although the trial court's explanation of its deviation from the 

presumptively correct amount is brief, when read in context with 

the record, it is sufficiently detailed and exact to allow for 

effective appellate review. Richardson, 12 Va. App. at 22, 401 

S.E.2d at 897. Although the trial court stated in its reasoning 

 

App. 455, 460-61, 340 S.E.2d 164, 167 (1986). Nevertheless, we 

disagree with mother's contention. Under Code § 20-108.2(G)(3), 

the shared custody rules apply "when each parent has physical 

custody of [their child or children] for more than 110 days of 

the year." Pursuant to the parties' new custody arrangement, 

father is entitled to custody of the children for "114 24-hour 

periods over the year." Despite the evidence in the record 

regarding father's history of missed visitation, we conclude that 

the evidence regarding their new arrangement was sufficient to 

support the trial court's conclusion that father now has physical 

custody of the children for at least 110 days per year. 

 2We disagree with father's argument that the trial court was 

required to calculate the presumptively correct amount of child 

support under Code § 20-108.2(G)(1) in addition to Code 

§ 20-108.2(G)(3). Code § 20-108.1 only requires a trial court to 

calculate "the amount of the award which would result from the 

application of the guidelines set out in § 20-108.2." Code 

§ 20-108.2(G) sets forth formulas to calculate the presumptively 

correct amount of support for three different factual scenarios: 

 sole custody, split custody, and shared custody. In order to 

satisfy the mandate of Code § 20-108.1, the trial court need only 

apply the formula among the three listed in Code § 20-108.2(G) 

that actually applies to the case at hand. Cf. Pharo, 19 Va. 

App. at 238-39, 450 S.E.2d at 184-85. In this case, the trial 

court determined that the parties shared custody of the children. 

 As such, it did not err when it calculated the presumptively 

correct amount of child support by applying only the shared 

custody formula and no other. 
 5 

 

that "a reduction of $500 per month in [father's] child support 

is appropriate," the trial court's overall methodology indicates 

that it calculated its award by adding to the presumptively 

correct amount rather than by subtracting from the prior award. 

 In addition, the trial court's decision to deviate from the 

guidelines is supported by the evidence in the record. The trial 

court reasoned that its decision to order father to pay more than 

the presumptively correct amount was justified by (1) the 

standard of living established by the family during the marriage, 

(2) father's prior record of not exercising his full visitation 

with the children, and (3) the amount of child support to which 

the parties agreed in their separation agreement. 

 Regarding the family's standard of living during the 

marriage,3

 the record established that, during the year prior to 

the parties' divorce, father's annual income was $274,794.96 

while mother had no income and apparently "stay[ed] at home with 

the children." Mother testified that she "presently enjoys a 

standard of living slightly less than what she enjoyed when the 

parties were married." She also testified that a reduction in 

the amount of father's child support obligation would force her 

to either move to a new home or seek outside employment. This 

evidence supports the trial court's conclusion that setting 

 3Under Code § 20-108.1(B)(10), the "[s]tandard of living for 

the family established during the marriage" is a factor that a 

trial court may consider when determining whether the presumptive 

amount of child support is unjust or inappropriate. 
 6 

 

father's child support obligation above the presumptively correct 

amount was necessary to ensure that mother and the children would 

continue to enjoy the relatively high standard of living 

established by the family during the marriage. 

 Regarding the parties' arrangements for custody of the 

children,4

 the record established that father had yet to exercise 

all of the visitation allowed to him under the parties' 

agreements. Specifically, father had yet to exercise "the full 

two week summer vacation." Mother also testified that father 

"had taken two to three week-long trips without the children in 

the past 12 months [and] . . . did not make up the visitation 

missed due to those trips." Although father testified that he 

intended to exercise all of his visitation in 1997, the evidence 

that mother historically has had additional, unplanned days of 

custody of the children supports the trial court's decision to 

require father to pay more child support than the presumptively 

correct amount under the shared custody rules. 

 Regarding the parties' separation agreement, we agree with 

father that the evidence in the record regarding this factor does 

not support the trial court's decision to deviate upward from the 

presumptively correct amount.5

 Because the amount of child 

 4Under Code § 20-108.1(B)(2), "[a]rrangements regarding 

custody of the children" is another factor that the trial court 

may consider when determining whether to deviate from the 

presumptively correct amount. 

 5Under Code § 20-108.1(B)(16), any "written agreement 

between the parties which includes the amount of child support" 

is yet another factor that the trial court may consider when 
 7 

 

support set forth in the parties' agreement did not constitute a 

significant deviation from the presumptively correct amount at 

the time of their divorce, it does not follow that the agreement 

justifies a substantial upward deviation at a later point in 

time. However, despite this deficiency in the trial court's 

analysis, we conclude that the evidence in the record regarding 

the other two factors was more than sufficient to support the 

trial court's decision to award mother an amount of child support 

that was $727 more than the presumptively correct amount. As 

such, we cannot say that the trial court's decision was an abuse 

of discretion. 

 II. 

 RETROACTIVE APPLICATION OF REDUCED CHILD SUPPORT OBLIGATION 

 Father contends that the trial court abused the discretion 

afforded to it under Code § 20-112 when it declined to make its 

modification of his child support obligation retroactive to the 

date that mother received notice of his motion. We disagree. 

 We hold that the trial court did not err when it decided 

that the modification of father's child support obligation would 

take effect on May 1, 1997. Under Code § 20-112, an order to 

decrease child support "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 

deciding whether a deviation from the presumptively correct 

amount is justified. See also Watkinson, 13 Va. App. at 158, 409 

S.E.2d at 474. 
 8 

given to the responding party." Within the statutory limits, 

determining the effective date of a modification in support is 

committed to the sound discretion of the trial court. In this 

case, mother was served with notice of father's motion on 

February 10, 1997. On April 28, 1997, the trial court ordered 

that the reduction in father's child support obligation take 

effect three days later, on May 1, 1997. Nothing in the record 

indicates that this decision was an abuse of discretion. 

 For the foregoing reasons, we affirm the order of the trial 

court reducing father's child support obligation. 

 Affirmed.