COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Lemons and Senior Judge Cole 

Argued at Richmond, Virginia 

TERRENCE M. HACKETT 

 MEMORANDUM OPINION* BY 

v. Record No. 2640-97-2 JUDGE DONALD W. LEMONS 

 MARCH 23, 1999 

SHIRLEY A. HACKETT 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 Terrence M. Hackett, pro se. 

 No brief or argument for appellee. 

 *

Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 

 Terrence M. Hackett contends that the trial court erred in 

failing to calculate the presumptive amount of child support; 

imputing income to him; failing to provide a written explanation 

for a deviation from the child support guidelines; and ordering 

him to pay child support arrearage. We hold that the trial 

court erred in failing to calculate the presumptive amount of 

child support and failing to provide a written explanation in 

the order or by reference for a deviation from the child support 

guidelines and remand for the purposes of compliance with Code 

§§ 20-108.1 and 20-108.2 and recalculation of arrearages, if 

any. 
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BACKGROUND

The parties, Terrence M. Hackett (husband) and Shirley A. 

Hackett (wife), were divorced on September 24, 1997. The 

parties have one child born of the marriage, Erin Colleen 

Hackett, born October 20, 1983, whose support is the subject of 

this appeal. 

 The parties were separated on December 1, 1995. On January 

29, 1996, a pendente lite hearing was held in the Circuit Court 

of the County of Henrico. Evidence introduced at the hearing 

related only to the amount of temporary child support to be 

awarded. The wife testified that the husband "was terminated 

from his job because he used drugs at work and he was placed on 

disability and lost his nursing RN license and anesthesia 

license from the State Board of Nursing." The husband testified 

that he was currently unemployed and that the disability 

payments he had been receiving from his insurance company 

terminated on December 23, 1995. The husband also introduced 

evidence relating to his employment search both in and outside 

of the Richmond area. 

In the order for pendente lite relief, the court found that 

the husband was voluntarily unemployed. The court imputed 

income to him in the amount of $3,500 per month, and ordered the 

husband to pay child support of $464.73 per month. The husband 

noted his objection to the order, asserting that although he had 
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been unemployed for two years prior to the date of the hearing 

and had been receiving disability payments, the payments had 

terminated. The husband also stated that he had been actively 

seeking employment and that income had been improperly imputed 

to him. 

On January 1, 1997, the husband became a member of the 

full-time faculty at Commonwealth College, with an annual salary 

of $22,500. On May 11, 1997, the husband sought a reduction in 

his child support obligation. This motion was heard on May 19, 

1997. By letter dated May 20, 1997, the court imputed income to 

the husband in the amount of $13,500 per year stating, "a 

realistic income for Mr. Hackett is $36,000 annually."1 The 

court ordered the wife’s counsel to calculate child support 

payments based on a gross monthly income of $3,000 per month for 

the husband and $3,833 per month for the wife, with an effective 

date of July 1, 1997. 

 On July 3, 1997, the husband filed a pro se "Motion to 

Rehear, Reconsider, and Reverse its Order of May 20, 1997." On 

September 9, 1997, the wife filed a motion to "Establish 

Arrearage and for Presentation of Final Decree of Divorce and a 

Payroll Deduction Order." 

 1

This new figure was $7,000 less per annum than the figure 

utilized by the court one year earlier. 
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 On September 22, 1997, a third hearing was held. The 

husband presented evidence that he alleged showed a material 

change in circumstances. The husband stated that he suffered 

from a drug dependency and that treatment for his illness had 

resulted in the loss of his professional nursing license. 

On September 24, 1997, the final decree of divorce was 

entered. Pursuant to its order, the court found that the 

husband was voluntarily underemployed and that he had the 

ability to earn $3,000 per month. The husband was earning 

$1,875 gross per month; consequently the court imputed $1,125 

per month to him. The husband was ordered to pay child support 

in the amount of $300 per month. The court also found that as 

of September 22, 1997, the husband was in arrears in the payment 

of previously ordered pendente lite child support in the amount 

of $2,711. The court ordered that the husband pay an additional 

$100 per month until the arrearage was satisfied. 

 On appeal, the husband argues that the trial court erred in 

failing to calculate the presumptive amount of child support 

according to the statutory guidelines. The husband also argues 

that the court erred in failing to provide written findings in 

the order or incorporated by reference that would rebut the 

presumptive award under the guidelines. The husband contends 

that because his income was involuntarily reduced due to his 

addiction and loss of his professional nursing license, the 
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court abused its discretion in imputing income to him. Finally, 

the husband maintains that the court improperly ordered him to 

pay arrearages. 

I. STATUTORY GUIDELINES

 In determining the amount of child support, a trial court 

must first apply the child support guidelines to determine the 

presumptively correct amount of child support. See Farley v. 

Liskey, 12 Va. App. 1, 401 S.E.2d 897 (1991). 

 [A]fter 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. Deviations from the presumptive 

amount must be supported by written findings 

which state why the application of the 

guidelines in that particular case would be 

unjust or inappropriate. 

Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 

896 (1991); Code § 20-108.1(B) ("[i]n order to rebut the 

presumption, the court shall make written findings in the order, 

which findings may be incorporated by reference, that the 

application of such guidelines would be unjust or inappropriate 

in a particular case"). A trial court's failure to provide 

sufficient explanation for a deviation from the presumptive 

amount of the guidelines is error. See Pharo v. Pharo, 19 Va. 

App. 236, 450 S.E.2d 183 (1994). 

 Income may be imputed to an obligor "who is voluntarily 

unemployed or under-employed . . . ." Code § 20-108.1(B)(3). A 
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parent's incarceration may constitute voluntary unemployment. 

See Layman v. Layman, 25 Va. App. 365, 488 S.E.2d 658 (1997). 

Termination from employment that was due to that 

parent/employee's larceny from his employer may similarly be 

considered voluntary unemployment. See Edwards v. Lowry, 232 Va. 

110, 348 S.E.2d 259 (1986). An obligor/parent seeking a 

reduction in the amount of his or her child support obligation 

"must . . . make a full and clear disclosure about his ability 

to pay, and he must show his claimed inability to pay is not due 

to his own voluntary act or because of his neglect." Antonelli 

v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991) 

(citations omitted). 

 By letter dated May 20, 1997, the court stated that it 

"fe[lt] that a realistic income for . . . [the husband] is 

$36,000 annually. This takes into account his present mental 

and physical condition, his past ability to earn, and what the 

Court feels he can realistically earn in the present market." 

The court ordered the wife’s counsel to recalculate the support 

payments based upon "$3,000 for Mr. Hackett and $3,833 for Mrs. 

Hackett." 

 At the hearing on September 22, 1997, the husband presented 

evidence that he alleged showed a material change in his 

circumstances, including his drug dependency and subsequent 

treatment that resulted in the loss of his professional nursing 
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license. In the final divorce decree entered on September 24, 

1997, the court found that the husband was "voluntarily 

underemployed" with an earning capacity of "$3,000 per month." 

The court ordered the husband to pay child support of $300 per 

month. The court stated that this amount was "in accordance 

with the provisions of §§ 20-108.1 and 20-108.2 of the Code of 

Virginia and the child support guidelines worksheet attached 

hereto." Although we recognize the efforts made by the husband 

to overcome his addiction and his success in having his license 

to practice nursing restored, because there is no evidence that 

his addiction resulted from a medically prescribed course of 

treatment or some other non-voluntary cause, the trial court’s 

finding that his unemployment was "voluntary" was not error. 

 However, the trial court failed to determine the 

presumptively correct amount of child support and did not make 

written findings in the order or incorporated by reference to 

support its deviation from the guidelines. Although in its 

final decree of divorce the court referred to "child support 

guidelines worksheet attached hereto" as the basis for its 

award, the only child support guidelines worksheet contained in 

the record is that used to calculate the pendente lite award. 

From the record of the case it is clear that the information in 

that guidelines worksheet was outdated and could not have formed 
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the basis of the award in the final decree. In Hiner v. Hadeed, 

15 Va. App. 575, 581-82, 425 S.E.2d 811, 815 (1993), we said, 

 [o]nly if trial judges follow the statutory 

requirements will Virginia child support 

awards conform to the federal and state 

legislative mandates designed to create 

uniformity in support awards between parents 

and children similarly situated. Trial 

judges must make the requisite specific 

written findings, not solely for the 

purposes of appellate review, but, more 

important, to enable trial judges in future 

hearings to decide whether and how to 

increase, decrease, or terminate support. 

Only by having specific written findings 

will trial judges in subsequent proceedings 

be able to make informed decisions on how a 

change in circumstances may justify 

modification or may justify continued 

deviation from the guidelines. 

 We reverse and remand this case to the trial court for 

compliance with Code §§ 20-108.1 and 20-108.2. 

II. ARREARAGES

 The husband argues that the trial court erred in finding 

that he was in arrears in his child support payments. Because 

the arrearages calculated by the court in its final divorce 

decree as of September 22, 1997 are based upon the trial court's 

calculation of the husband's monthly child support obligation, 

we remand the case to the trial court to determine if any 

arrearages are owed after it has complied with Code §§ 20-108.1 

and 20-108.2. 
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III. CONCLUSION

 Based upon the foregoing, we affirm the trial court's 

finding that the husband’s termination from his employment was 

voluntary. We hold that the trial court erred in failing to 

calculate the presumptive amount of child support and in failing 

to provide written findings in the order or incorporate written 

findings by reference for a deviation from the child support 

guidelines, and we reverse and remand with directions to comply 

with Code §§ 20-108.1 and 20-108.2 and determination of 

arrearages if any. 

 Affirmed in part,

reversed and 

 remanded in part.