COURT OF APPEALS OF VIRGINIA Present: Chief Judge Felton, Judg e Kelsey and Senior Judge Bumgardner Argued at Richmond, Virginia WALTER EDWARD SAXON, JR. MEMORANDUM OPINION * BY v. Record No. 0516-13-2 JUDGE D. ARTHUR KELSEY DECEMBER 17, 2013 ANGELA LESUEUR

FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY Kimberly S. White, Judge Brian R. Moore (Phillips, Morrison, Johnson & Ferrell, on briefs), for appellant. Marshall L. Ellett (Marshall L. Ellett, P.C., on brief), for appellee.

Walter Edward Saxon, Jr. appeals a trial c ourt order modifying a prior child-support award. Saxon claims the trial court provided inadequate written findings to justify the modification and that, in any event, nothing in the evidentiary record could have justified the award. We disagree with both assertions and affirm.

I. On appeal, “we view the evidence in the lig ht most favorable to the prevailing party, granting it the benefit of any reasonable infe rences.” White v. White, 56 Va. App. 214, 216, 692 S.E.2d 289, 290 (2010) (quoting Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003)). “That principle require s us to discard the evidence of the appellant which conflicts, either directly or inferentially, with the eviden ce presented by the appellee at trial.” Hamad v. Hamad, 61 Va. App. 593, 596, 739 S.E.2d 232, 234 ( 2013) (internal quotation marks omitted). So viewed, the record in this case shows that the parties agreed prior to the entry of their final divorce decree that Saxon would pay LeSueu r child support at $750 per month beginning in

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - January 2011. Saxon and LeSueur have three sons , and, at the time of th e agreement, two of their sons were under the age of eighteen. The agreement authorized Saxon to seek a modification of the award any time after June 2011, when the middle son would turn eighteen. Absent such a request, Saxon was required to pay the $750 monthly sup port “even after the second child reaches the age of majority.” A pp. at 256. In calculating the agreed-upon childsupport award, the parties modified the presum ptive statutory amount by excluding LeSueur’s spousal-support award from the initial inco me calculation. Id. at 165, 193, 248, 298-99; see generally Code § 20-108.2(C) (requir ing that spousal-support awards be factored into the payee’s gross income and treated as a deduc tion in the payor’s gross income). The final divorce decree, entered in February 2012, restated and confirmed the parties’ prior agreement that Saxon would pay $750 in m onthly child support to LeSueur beginning in January 2011. Though the final decree does not me ntion it, Saxon had already filed a motion to modify support in September 2011. That motion remained inactive until the trial court heard

evidence on the matter in December 2012. At that hearing, Saxon requested a reduction in child support ba sed on the fact that only one of their three sons remained under the ag e of eighteen. Saxon argue d that the modification of child support should be cal culated using the child-support guidelines in Code §§ 20-108.1(B) and 20-108.2, with no deviation from the presump tive amounts. In reply, LeSueur agreed the

order should be modified but argued that she had incurred addi tional expenses justifying an upward departure from the presumptive amount of support under the guidelines. At the time of the modification hearing, Saxon, a dentist, earned over $16,000 in monthly gross income — more than twice as much as Le Sueur, who worked as a high school teacher. App. at 294. They shared legal and physical cu stody of their remaining minor son, who, at the time of the hearing, was seventeen-and-one-h alf years old and a se nior in high school.- 3 - LeSueur testified that she paid for unique expenses incurred for the benefit of their teenage son that, her counsel ar gued, were not fully compensated by the presumptive guideline amount. These expenses included costs associ ated with their son’s attendance at student organization conventions, a trip to Texas with a student organizati on, extra clothing and footwear, school supplies, lunch money, meals follo wing weekly football games, senior graduation announcements, standardized test registration f ees, college application fees, and gas money

for their son’s use of her vehicle. LeSueur a dded that Saxon contributed no additional money for any of these items and that these “extra” expe nses averaged $500 a month. Id. at 185-86. Saxon argued that the presumptive guideli ne amount should be enough to reimburse LeSueur for any reasonable expenses. Any expe nditure beyond that, he contended, should be deemed a gratuity on LeSueur’s part for which he should not be held responsible. Finding LeSueur’s testimony persuasive, the trial court ordered Saxon to pay $700 in monthly child support for their remaining son unt il he reached the age of eighteen. The court acknowledged that its award wa s considerably higher than th e presumptive guideline amount,

which the court calculated to be $285 monthly. The court explaine d that it took into account the relevant statutory factors and was particularly influenced by the “amount of reasonable monthly expenses covered by the Mother, mo stly associated with school, college application fees,” and the “prior agreement and very recent decree establishing the amount of child support at a higher amount, even in light of the payment of spousal support.” Id. at 295, 354.

II. A. S TATUTORY “W RITTEN F INDINGS ” R EQUIREMENT On appeal, Saxon contends the trial court’s explanation for its ruling was insufficient to satisfy the statutory requirement that the court make “written findings” supporting any departure from the presumptively valid award based upon the guidelines. See Code §§ 20-108.1(B),- 4 - 20-108.2(A). This statutory requirement obligates the trial court to “ide ntify the factors that justified deviation from the guidelines” and to “explain why and to wh at extent the factors justified the adjustment.” Richardson v. Richardson, 12 Va. App. 18, 22, 401 S.E.2d 894, 897 (1991); cf. Pilati v. Pilati, 59 Va. App. 176, 182, 717 S.E.2d 807, 810 (2011) (interpreting the analogous “written findings” requirement for spousa l-support orders and st ating the need for the trial court to explain “its reso lution of any significant underlying factual disputes”). This is because there must be “enough detail and exactness to allow for effective a ppellate review of the findings.” Princiotto v. Gorrell, 42 Va. App. 253, 260, 590 S.E.2d 626, 630 (2004) (internal quotation marks omitted). In this case, the trial court’s letter opinion and order stated that the court considered the relevant statutory factors and identified several matters dese rving emphasis, including the “amount of reasonable monthly expenses covered by the Mother, mostly associated with school, college application fees,” and the “prior agr eement and very recent decree establishing the amount of child support at a high er amount, even in light of the payment of spousal support.” App. at 295, 354. This explanation adequately in formed the parties that the court accepted LeSueur’s testimony about the additional expenses and took into account the parties’ earlier child-support agreement. Though the court could ha ve said more, it was unnecessary to do so. We sufficiently understand the court’s decision to review it on appeal. 1

B. U PWARD D EPARTURE F ROM S TATUTORY G UIDELINES “Code §§ 20-108.1 and 20-108.2 govern the method by which a trial court makes a child support determination and award.” Princiott o, 42 Va. App. at 258, 590 S.E.2d at 629. Code

1 In this respect, we appreciate and agree w ith Saxon’s concession that “a remand seeking additional explanation may not be th e most efficient method of dealing with this particular case.” Appellant’s Br. at 6.- 5 - § 20-108.1(B) applies a “rebuttabl e presumption” that the am ount of a child-support award determined pursuant to the guidelines laid out in Code § 20-108.2 is correct. The guidelines guide , but do not impair, the trial court’s exerci se of discretion. If the court believes the presumptive amount would be “unjust or ina ppropriate,” Code §§ 20-108.1(B), 20-108.2(A), the court may order a greater or lesser award of child support. “The language is in the alternative and does not require a finding of both an ‘unjust’ or harsh result and an in appropriate result.” Peter N. Swisher, Lawrence D. Diehl, & James R. Cottrell, Family Law: Theory, Practice, and Forms § 10:9, at 472 (2013). In the end, the deci sion rests within the “sound discretion” of the trial court. Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994). An abuse of discretion occurs only when “reaso nable jurists” could not disagree as to the proper decision. Brandau v. Brandau, 52 Va. App. 632, 641, 666 S.E.2d 532, 537 (2008) (quoting Robbins v. Robbins, 48 Va. App. 466, 482, 632 S.E.2d 615, 623 (2006)). This highly deferential standard of review “necessarily implie s that, for some decisions, conscientious jurists

could reach different conclusions based on exactly the same facts — yet still remain entirely reasonable.” Hamad, 61 Va. App. at 607, 739 S.E .2d at 239. The trial co urt “has a range of choice, and its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” Lawlor v. Commonwealth, 285 Va. 187, 212-13, 738 S.E.2d 847, 861 (2013) (alteration and intern al quotation marks omitted). We apply this “bell-shaped curve of reasonability” based on our “venerable belief that the judge closest to the contest is the judge best able to discern wh ere the equities lie.” Hamad, 61 Va. App. at 607, 739 S.E.2d at

239. In this appeal, Saxon has not shown that the tr ial court abused its di scretion in issuing the modified child-support award of $700 per month. The court’s findings demonstrate that it accepted as credible LeSueur’s testimony about the unique expenses associat ed with their son’s- 6 - activities during his last year of high school. She estimated thes e additional expenses to be $500 per month. Saxon characterizes these expenses as wholly “voluntary expenditures,” which should not serve as a basis for an upward departure from the guidelines. Appella nt’s Br. at 11. That assertion, however, presupposes that the expenses improve the child’s standard of living above that established during the marriag e. If the expenses merely pr ovide for the standard of living the child was accustomed to during the marriag e, the court should consider them when determining an award. See Code § 20-108.1(B)(10). No evidence suggests that thes e expenses (student conventions and trips, gas money, fees for standardized test registrati on, fees for college applications, etc.) were extravagances that would not have been provided to the younge st son had the marriage remained intact. 2 Nor can it be inferred that the two older sons did not enjoy the same opportunities duri ng their last year of high school. Just the opposite infe rence is likely, particularly c onsidering the care the parents had previously given to their three sons a nd the combined incomes of both parents.

Saxon counters that the “income shares model,” which underlies the child-support guidelines, Farley v. Liskey, 12 Va. App. 1, 5, 401 S.E.2d 897, 899 (1991), estimates the child’s living expenses and then allocates them to the parties based upon th eir respective abilities to pay. From that premise, Saxon reasons that the tria l court should grant an upward departure only when the claimed expenses are specifically show n to be higher than the child-rearing costs

2 The record before us hardly justifies any a pplication of the so-called “three pony rule.” See generally Laura W. Morgan, Child Support and the Anomalous Cases of the High-Income and Low-Income Parent: The Need to Reconsid er What Constitutes “Support” in the American and Canadian Child Support Guideline Models , 13 Can. J. Fam. L. 161, 198 & n.69 (discussing the need to limit child support in high-income cas es to the “reasonable n eeds for the child of a wealthy parent,” an idea encompassed by the stat ement that “no child needs three ponies” (citing In re Marriage of Patterson, 920 P.2d 450, 455 (Kan. Ct. App. 1996))).- 7 - already factored into child-suppor t guidelines. We agree with th is principle, but disagree with Saxon’s overbroad application of it to this case. The guidelines adopted by the General Assembly reflect “the belief that parents have a duty to care for children to the best of their resources; this duty is dependent neither upon a successful marriage nor upon which parent has custody.” Rep. of the J. Subcomm. Studying Child Support Formulas, H. Doc. No. 34, at 6 (Va. 1988). The guidelines implement the “income shares model” to child support, which provide[s] a child of divorcing pa rents with the same proportion of parental income that he would have received had his parents remained together. Child support is calculated as the share of each parent’s income estimated to have been allocated to the child if the parents and child were living in an intact household, as shown from research and economic data.

Id. at 11. 3 The “research and economic data” predicate for the formula, id., involves statistical averaging and, of course, certain necessary assumptions. One of the most significant assumptions addresses “the obvious fact that child rais ing expenses increase as the child grows older.” 2 Homer H. Clark, Jr., The Law of Dome stic Relations in the United States § 18.1, at 363 (2d ed. 1987). Though the “income shares model” conceptually allows fo r the possibility of “age adjustments,” Robert G. Williams, Guidelines for Setting Levels of Child Support Orders,

3 The General Assembly initi ally enacted the Virginia Child-Support Guidelines in response to the federal Child Support Enforcement Amendments of 1984, Pub. L. No. 98-378, 98 Stat. 1305 (codified in scattered sections of 42 U.S.C. and 26 U.S.C. ), see also 45 C.F.R. § 302.56 (compliance regulations), which conditioned each state’s receipt of “federal funding for administrative costs of the child support enforc ement program,” Rep. of the J. Subcomm., H. Doc. No. 34, at 3, on the adoption and distribut ion of child-support guidelines. In 1989, the General Assembly revisited the Virginia Child-S upport Guidelines in response to the federal Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2343 (codified in scattered sections of 42 U.S.C. and 26 U.S.C. ), and “incorporate[d] the rebuttabl e presumption provision,” Dep’t of Soc. Servs. Div. of Child Support Enforcement, The Impact of Child-Support Guidelines on the Level of Child-support awards in Virginia, S. Doc. 4 (Va. 1990).- 8 - 21 Fam. L. Q. 281, 292 (1987), the “research and economic data” embedded in the Virginia

formula do not take into account th e child’s age, Rep. of the J. S ubcomm., H. Doc. No. 34, at 13. Instead, Virginia’s guidelines, like all non-age-adjusted guidelines, assume “the average cost of childrearing over the life of the child .” Laura W. Morgan, Child-support guidelines: Interpretation & Application § 7.05[A], at 7-81 (2d ed. 2013) (emphasis added); see also Rep. of the J. Subcomm., H. Doc. No. 34, at 13. It may seem odd to presuppose the cost of rear ing an infant to be about the same as a high-school senior. But it makes sense if one assumes, as we do, that “parents’ incomes generally rise as children age,” and thus “the increased cost of rearing older children will be accounted for in the income shares formula” adopt ed by the statute. Rep. of the J. Subcomm., H. Doc. No. 34, at 13. 4 In cases in which th e child-support award begins when the child is quite young and continues to the age of majority, the cost disparities balance out over the years of the award. The overestimate in the early years rough ly cancels out the underestimate in the latter

years. But in cases in which the child-support award begins and ends during the year or two before the child turns eighteen, as is the cas e here, the cost-averaging assumption may be inequitable. In such cases, a pure guideline-ba sed award can be adjusted if it appears to be “unjust or inappropriate.” Code §§ 20-108.1(B), 20-108.2(A). 5 Thus it is entirely reasonable, at

4 The formula also assumes that the “proportion of household income” devoted to children typically decreases as marital income increases. Williams, supra, at 286-89 (recognized as authoritative by the Rep. of the J. Subcomm ., H. Doc. No. 34, at 6, and by this Court in Farley, 12 Va. App. at 5, 401 S.E.2d at 899). The va lidity of the first assu mptions has been the subject of critical commentary. See generally Kathleen A. Hoga n, 17 J. Am. Acad. Matrim. Law 349, 351-52 (2001).

5 We agree with those courts that have concluded that the increased expenses associated with older children may be taken into account wh en departing from child -support guidelines like those in Virginia, which do not include an age adju stment in the basic formula. See, e.g., Burson v. Burson, 608 So. 2d 739, 741 (Ala. Civ. App. 1992); In re Marriage of Boyden, 517 N.E.2d- 9 - least in Virginia, for a trial c ourt to take into acco unt a payee parent’s testimony about the agerelated costs associated with raising a seve nteen-and-one-half-year-old high-school senior. Infants, toddlers, and pre-teens, af ter all, do not drive ca rs or rent tuxedos fo r high school dances. This is not to say that trial courts can reflexivel y depart from the guidelines as a matter of course whenever they are addressing children at the thres hold of majority, but it is to say that expenses naturally related to a child of th at age can be taken into account when considering the standardof-living factor, Code § 20-108.1( B)(10), as a reason for departing from the presumptive guideline amount. 6 This observation, standing alone, might not be enough to warrant the $700 award made by the trial court in this case. In cases where, as here, proof of age-rela ted costs has been shown, the overage should ordinarily be allocated to the part ies based on the income shares model and then further adjusted in shared-custody situa tions. Two additional considerations, however, relieve us of the necessity of ruling solely on this ground.

The first is the trial court’s observation thatthe parties had earlier agreed to a childsupport award using a calculation that excluded LeSueur’s spousal-support award from her income baseline for purposes of calculating child s upport. The trial court could reasonably infer

1144, 1146 (Ill. App. Ct. 1987); In re Marriage of Smith, 501 N.W.2d 558 , 560 (Iowa Ct. App. 1993); Stevens Cnty. Soc. Servs. Dep’t ex rel. Banken v. Banken, 403 N.W.2d 693, 698 (Minn. Ct. App. 1987); Jamison v. Jamison, 845 S.W.2d 133, 136 (Mo. Ct. App. 1993); Zucker v. Zucker, 589 N.Y.S.2d 908, 910 (N.Y. App. Di v. 1992); McCarty v. McCarty, 863 S.W.2d 716, 721 (Tenn. Ct. App. 1992); In re Marriage of Hamer, 906 S.W.2d 263, 267 (Tex. App. 1995).

6 We acknowledge the cr iticism that this approach is flawed because, “Just as there should not be a deviation from the guidelines be cause a child’s needs might be less than the guidelines amount due to a child’s young age, ther e should not be a deviation from the guidelines because a child’s needs might be greater than the gui delines amount.” Morgan, supra , § 7.05[B],at 7-82 (emphasis added). However, this criticism is overbroad because it assumes a childsupport award that has a sufficien tly lengthy duration to balance out the age-related disparities embedded in the underlying cost assumptions. Indeed, an age-related “deviation or modification” may be appropriate “where a child’s actual, demonstrated needs are greater.” Id. (emphasis added).- 10 - that this fact suggested the parties understood the need for an upward departure from the guidelines and chose to effect it by adjusting the initial formula ra ther than by deviating from the

results of the normal formula after the fact. By taking this into account, the trial court considered the parties’ prior “agreement” concerning child support, a permissible co nsideration authorized by Code § 20-108.1(B)(14). Second, at the time of the hearing, the age-re lated costs incurred by LeSueur for her son were limited to a relatively short time-frame. The increased expenses of a high-school senior, a specific stage in the son’s life with unique cost s, would not be a recurring financial burden. Thus, the trial court imposed an award that, pr ospectively, would last only six months. This consideration belongs in the ca tegory of concerns encompassed by the catch-all factor, Code § 20-108.1(B)(15), which focuses the court’s atten tion on “[s]uch other factors as are necessary to consider the equities for the parents and ch ildren.” By including such a broad ground for individualized, case-specific equi table concerns, the statute rein forces the overarching principle that, if the evidence supports doi ng so, “a liberal approach to the granting of deviations should be taken by Virginia’s courts in their implementa tion of child support computations.” Swisher, Diehl, & Cottrell, supra , § 10:9, at 471.

III. Finding the trial court’s writt en explanation satisfactory a nd its award within its sound discretion, we affirm the modified child-suppo rt order requiring Saxon to pay $700 per month until his son reaches the age of majority.

Affirmed.