COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Bray and Senior Judge Duff 

Argued at Alexandria, Virginia 

JACK KENT COOKE 

 OPINION BY 

v. Record No. 2289-95-4 JUDGE RICHARD S. BRAY 

 AUGUST 20, 1996 

SUZANNE MARTIN COOKE 

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY 

William Shore Robertson, Judge 

 Edwin A. Williams (Kellogg, Williams & Lyons, 

on briefs), for appellant. 

 Mark A. Barondess (Milissa R. Spring; Sandground, 

Barondess & West, P.C., on brief), for appellee. 

 Acting on petition of Suzanne Martin Cooke (wife), the trial 

court increased previously ordered child support payable by Jack 

Kent Cooke (husband) and awarded wife attorney's fees incidental 

to the proceedings. Husband appeals, complaining that the 

support order did not comply with applicable statutory guidelines 

and that the fees were excessive. Finding that the trial court 

did not adhere to the appropriate guideline, we reverse the 

support award. 

 The pertinent facts are uncontroverted. The parties were 

divorced in November 1988, and husband was ordered, by decree 

entered on January 23, 1990, to pay wife $2,420 per month for the 

support and maintenance of the child born of the marriage. On 

July 21, 1994, wife petitioned for an increase, pleading a 

material change in circumstances arising from both the economic 

status of the parties and the child's needs. Following several 
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ore tenus hearings, the trial court concluded that a review of 

the earlier order was warranted and conducted a further hearing 

on July 14, 1995 to ascertain an appropriate modification and 

attendant attorney's fees. In accordance with correspondence to 

counsel dated August 1, 1995, the court, by order entered 

September 26, 1995, increased husband's monthly child support 

obligation from $2,420 to $3,845.66, retroactive to the date he 

received notice of wife's motion, July 28, 1994, and awarded wife 

attorney's fees of $18,512.50. 

 This increase comported with the presumptive child support 

prescribed by Code § 20-108.2, as amended in 1992, the statute 

which controlled when wife filed her petition. However, during 

the pendency of the proceedings, Code § 20-108.2 was amended, 

effective July 1, 1995, reducing from two percent to one percent 

the presumptive support due from gross monthly income in excess 

of $50,000. Husband, therefore, urged the court to apply the 

amended guideline, effective at the time of its ruling. In 

overruling husband's motion, the trial court relied upon our 

decision in Gaynor v. Hird, 11 Va. App. 588, 400 S.E.2d 788 

(1991), as authority for applying the statute which existed at 

the inception of this cause. 

Application of Child Support Guidelines

 Child support guidelines were enacted by the General 

Assembly in furtherance of national policy intended to "assure 

that both the child's needs and the parent's ability to pay are 
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considered in determining the amount of support awards and to 

decrease the disparity in . . . awards . . . ." Richardson v. 

Richardson, 12 Va. App. 18, 20, 401 S.E.2d 894, 895 (1991). 

Thus, "[i]n determining child support, there is a rebuttable 

presumption that the amount determined in accordance with the 

statutory guidelines, Code § 20-108.2, is the correct award." 

Brooks v. Rogers, 18 Va. App. 585, 591, 445 S.E.2d 725, 728 

(1994). Should the trial judge conclude that "application of 

[such] guidelines would be unjust or inappropriate in a 

particular case as determined by relevant evidence pertaining to 

the factors set out in §§ 20-107.2 and 20-108.1," the court may 

depart from the statutory schedule, provided the attendant order 

adequately explains the deviation. Code § 20-108.2(A); Brooks, 

18 Va. App. at 591, 445 S.E.2d at 728. 

 It is also well established in our jurisprudence that trial 

courts may "adjust child support . . . when the petitioning party 

has proven by a preponderance of the evidence a material change 

in circumstances." Kaplan v. Kaplan, 21 Va. App. 542, 547, 466 

S.E.2d 111, 113 (1996); see also Code § 20-108. Once a party has 

demonstrated a material change, the court must "'determine 

whether that change justifies a modification in the support award 

by considering "the present circumstances of both parties and the 

benefit of the children."'" Kaplan, 21 Va. App. at 547, 466 

S.E.2d at 113 (citation omitted) (emphasis added). A 

"substantive guideline amendment which result[s] in a significant 
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disparity in the parties' support obligations" constitutes a 

material change in circumstances created by the Code itself. 

Slonka v. Pennline, 17 Va. App. 662, 664-65, 440 S.E.2d 423, 425 

(1994) (emphasis in original); Milligan v. Milligan, 12 Va. App. 

982, 988, 407 S.E.2d 702, 705 (1991). Thus, an amended guideline 

may at once justify review of a prior order and specify the 

presumptively correct amount of child support due under existing 

circumstances. Hiner v. Hadeed, 15 Va. App. 575, 578-79, 425 

S.E.2d 811, 813 (1993). 

 Here, the trial court initially concluded that a material 

change in circumstances unrelated to a guideline amendment 

justified review of the prior order. Subsequently, while the 

court contemplated an appropriate modification, the General 

Assembly amended the statutory guideline schedule, decreasing the 

presumptive amount of child support for monthly gross incomes in 

excess of $50,000, which resulted in a substantial reduction to 

husband's obligation.1 Thus, an additional material change in 

circumstances occurred which necessitated the attention and 

compliance of the court in properly adjudicating the petition. 

When the trial court declined to apply the amended guideline to 

that portion of the award which accrued subsequent to July 1, 

1995, without a written explanation for a deviation from the 

presumptive amount, the original order was modified contrary to 

 

 1The existence of a "significant variance" between the 

former and amended schedules is not in dispute. Milligan, 12 Va. 

App. at 988, 407 S.E.2d at 705. 
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statute. 

 The wife and the trial court mistakenly rely on Gaynor v. 

Hird, 11 Va. App. 588, 400 S.E.2d 788 (1991), to support the 

contention that the instant award is controlled by the guidelines 

which pertained when wife filed her petition. In Hird, we 

concluded that, in the absence of a contrary legislative intent, 

the authority of a trial court to order the transfer of property 

in equitable distribution was limited by the statute in effect at 

the commencement of that action. Id. at 590-91, 400 S.E.2d at 

789. In contrast, the statutory scheme established by Code 

§§ 20-107.2, -108, -108.1, and -108.2, and related enactments, 

manifest a clear legislative intent that the courts of this 

Commonwealth determine the issue of child support with 

contemporaneity, in consideration of prevailing circumstances and 

consistent with existing guidelines. The application of a 

repealed guideline schedule to ascertain a current award would 

subvert this legislative design. 

 Similarly, contrary to husband's argument, trial courts may 

not retroactively apply amended guidelines to fix awards for 

periods governed by prior guidelines, absent written findings 

justifying a departure from the former statute. 

 Accordingly, we find that the trial court erred in its 

determination of husband's required monthly child support payment 

for the period subsequent to July 1, 1995, and remand for the 

proper application of the amended guidelines. 
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Attorney's Fees

 "An award of attorney's fees is a matter submitted to the 

trial court's sound discretion and is reviewable on appeal only 

for an abuse of discretion." Graves v. Graves, 4 Va. App. 326, 

333, 357 S.E.2d 554, 558 (1987). The "key to a proper award of 

counsel fees" is "reasonableness under all of the circumstances." 

McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 

(1985). To promote this determination, "evidence in the record 

[must] explain or justify the amount of the award." Westbrook v. 

Westbrook, 5 Va. App. 446, 458, 364 S.E.2d 523, 530 (1988). 

"Where the trial judge finds that a fee award is justified, 

evidence of time expended and services rendered is a proper basis 

upon which to fix an award." Id. 

 Wife submitted an affidavit which detailed counsel fees 

totaling $31,572.52, together with related costs of $1,511.77, 

all attributable to these proceedings. The court, noting that 

the "animus between the parties" and "their procedural posturing" 

had generated "extensive hearings" involving "numerous issues," 

awarded a fee of $18,512.50 and costs, an amount deemed 

consistent "with the charges prevailing in [the] jurisdiction." 

Upon a review of the record, we find no abuse of discretion in 

this award. 

 Accordingly, the order of the trial court is affirmed in 

part, and reversed in part, and the cause is remanded for further 

proceedings consistent with this opinion. 
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 Affirmed in part, 

 reversed in part, and remanded.