COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata 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) 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 § 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 

 

 *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) 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 § 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 5A:27. 

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 § 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 

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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 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 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 § 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 

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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 §§ 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 § 20-108.1(B)(1) authorizes a trial court to deviate 

from the amount of child support computed pursuant to the Code 

§ 20-108.2 statutory guidelines when it finds application of the 

guidelines "would be unjust or inappropriate in a particular 

case." Code § 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 

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gross monthly income as a deviation from the statutory guidelines 

based upon his "actual monetary support for other children." See

Code § 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 

§ 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. 

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 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. 

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 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 (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 

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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. 

Affirmed.

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