COURT OF APPEALS OF VIRGINIA

Present: Judg es Bray, Annunz iata and Frank

ROBERT WILLIAM LYFORD HUTCHINS MEMORANDUM OPINION * v. Record No. Record No. 2674-98 -4 PER CURIAM JUNE 22, 1999 ROSANA LILLY CARRILLO

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Richard B. Potter, Judge (Robert William Lyford Hutchins, pro se , on brief). No brief for appellee.

Robert William Lyford Hutchins (father) appeal s the decision of the circuit court granting his motion to modify the child support paid to Rosana L. Carril lo (mother). In a previous appeal, this Court reve rsed the order of the circuit cour t denying Hutchins' appe al for failure to timely post the appeal bond and remanded this ma tter to the circ uit court "with in structions to proceed as if fa ther timely sati sfied the appeal bond requirement of Code § 16 .1-296(H)." Hutchins v. Carrillo , 27 Va. App. 595, 614, 500 S.E.2d 277, 286 (1998). In the current ap peal, father contends that th e trial court erre d by (1) failing to proceed as if father timely sati sfied the appeal bond requir ement of the earlier appeal; (2 ) failing to backdate th e final decr ee to the

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.time of the July 17 , 1997 appeal; (3) im properly adjusting father's child support obligation for moneta ry support provided for other children ; (4) failing to adjust father's child support obligation for tool bi lls generated for the production of income; (5) finding orthod ontic care constituted an extraordin ary medical or dental expense unde r Code § 20-108.1(B)(8) ; (6) failin g to find that portions of th e child suppor t that deviated from the presumptive am ount paid to date were earmarked fo r specific expenses and continuing those payments ; and (7) fail ing to find that ordering the no n-custodial pare nt to pay fo r orthodontic expenses was unconstitu tional and a violation of equal pr otection. Upon reviewing the record and openin g brief, we conc lude that this appeal is withou t merit. Accord ingly, we summar ily affirm the decision of the trial court. See Rule 5A:27. Effective Date for Mo dified Child Support In his first two issu es, father contends that the trial court failed to implem ent 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 de nied father's previous appe al. We find no error. Code § 20-108 provides "[n]o support order may be retroactively modified, but may be modified with respect to any period during which th ere is a pending petiti on for modi fication, but only from the date that notice of such petition has been given to the responding part y." (Emphasis added.) The tr ial court was

- 2 -authorized, but no t required, to ma ke the modified support order effective as of a date no earlier th an when mother received notice of the pending pe tition. However, the effe ctive date was a matter left to the discretion of the trial court. Th e trial court's decision to make the modified child support effective as of the start of the month foll owing entry of its fina l decree was not an abuse of discretion. Ther efore, we fi nd no error. Determination of Child Support 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 § 20-108.1(B)(1) and (5). As the party seeking to modify support, father was required to prove a materi al change in ci rcumstances and th at the change justified alteri ng 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 § 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

- 3 -overall circumstances of both parties and the impact on the needs of the children. Id. In addition, "aft er determining the pr esumptive am ount of support accord ing to the schedule , the trial court may adjust the amount based on the factors found in Code §§ 20-107.2 and 20-108.1." Richardson v. Richardson , 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991) (emphasis in orig inal deleted; emphasis added). Code § 20-108 .1(B)(1) authorizes a trial court to deviate from the amount of ch ild support comp uted pursuant to the Code § 20-108.2 statutory gu idelines when it find s applicatio n of the guidelines "would be unjust or inap propriate in a particular case." Code § 20-108.1 (B). The deviat ion "shall be determined by relevant evidence" pert aining to cert ain factors se t out in the statute. "If th e applicability of the factors is supported by the evidence and the trial judge has not ot herwise abused his or her discretion, the de viation from the presumpt ive support obligation will be upheld on appeal." Richardson , 12 Va. App. at 21, 401 S.E.2d at 896. Father contends th at the trial court fa iled to adequately consider the monetary support he pays for th e daughter of his new marriage. Evidence re lating to the "actual monetary support for other children" is a factor that the tria l court may co nsider as warranting a deviation from the child support guidelines. Whether to grant any devi ation is a matter left to the discreti on of the trial court. Th e trial court gran ted father a $200 reduction in

- 4 -gross monthly inco me as a deviatio n from the statut ory guidelines based upon his "actua l monetary support fo r other chil dren." See Code § 20-108.1(B)(1). The evidence suppor ts 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 § 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 § 20-108.1(B)(8) or § 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.

- 5 -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 § 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.

- 6 -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 protecti on because similarly situated married pa rents could no t be ordered to pay for orthodontia. So lely for purposes of th is analysis, we will assume, though not decide , father’s underlying premise is correct.
See generally Morris v. Co mmonwealth ex rel. Morris , 13 Va. App. 77, 83, 408 S. E.2d 588, 59 2 (1991). "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

- 7 -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 obliga tion owed to the infa nt child . . . [which] duty arises from principl es of natura l 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. Affirmed.

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