COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Frank 

JOHN DEAN COLLINS 

 MEMORANDUM OPINION*

v. Record No. 1984-98-3 PER CURIAM 

 APRIL 27, 1999 

TAMMIE LEIGH HURLEY COLLINS 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Robert P. Doherty, Jr., Judge 

(Barry M. Tatel; Neil E. McNally; Key & 

Tatel, P.C., on brief), for appellant. 

(Deborah Caldwell-Bono, on brief), for 

appellee. 

 John Dean Collins (father) appeals the decision of the 

circuit court denying his request to reduce the monthly child 

support he pays to Tammie Leigh Hurley Collins (mother). Father 

contends that the trial court erred by (1) deviating from the 

child support guidelines set forth in Code § 20-108.2; (2) 

refusing to reduce the amount of child support after finding a 

material change in circumstances had occurred; and (3) assessing 

a child support arrearage. Upon reviewing the record and briefs 

of the parties, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the decision of the trial 

court. See Rule 5A:27. 

 

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

this opinion is not designated for publication.
 As the party seeking to modify the existing support order, 

father was required to prove “both a material change in 

circumstances and that such change justifies an alteration in 

the amount of support.” 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. 

Id.

Deviation from Presumptive Guidelines

 Father contends that the trial court erred by deviating 

from the presumptive guideline amount set out in Code 

§ 20-108.2. We disagree. 

[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 

support obligation must be supported by 

written findings which state why the 

application of the guidelines in the 

particular case would be unjust or 

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

896 (1991). 

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 The trial court calculated child support pursuant to the 

guidelines, then indicated, in writing, that it was deviating 

from the guideline amount. The trial court ruled that, based 

upon the evidence and the statutory factors, it would be unjust 

to reduce the amount of child support paid by father from the 

amount agreed upon by the parties in their post-separation 

agreement. The trial court stated: “With knowledge, imputed or 

actual, of the child support guidelines, the parties 

intentionally and voluntarily chose to ignore them. Instead, as 

parents, the parties determined that the particular needs of 

their child, based on the manner in which they chose to raise 

him, would require $125.00 per week be paid to the mother as 

child support.” In this situation, we cannot say that in 

deviating from the guidelines the trial court abused its 

discretion. 

Material Change in Circumstances

 Father also contends that the trial court erred when it 

found a material change of circumstances but refused to reduce 

the amount of child support. A party seeking to modify child 

support must not only prove a material change in circumstances 

but also that that change warrants a modification of support. 

See Yohay, 4 Va. App. at 21, 359 S.E.2d at 324. See also Layman 

v. Layman, 25 Va. App. 365, 367, 488 S.E.2d 658, 659 (1997). 

The trial court found that a material change in circumstances 

had occurred because both parties had increased their incomes, 

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but that the change did not warrant a reduction in father’s 

child support payments. 

 Specifically, the court found “that the needs of the child 

have drastically altered since” entry of the final decree. 

However, the court agreed with mother that “she waived her 

spousal support in return for the agreed child support figure.” 

 It is clear that the trial court considered the change in 

circumstances, the positions of the parties, and the reasons for 

their actions. We cannot say that its findings are without 

support in the record. 

Child Support Arrearage

 The trial court ruled that father was $2,932.50, plus 

interest, in arrears on his child support payments. Father 

argues that, because he paid the presumptive amount of child 

support during the time when his petition for modification was 

pending before the juvenile and domestic relations district 

court, he should not be assessed an arrearage. This argument is 

without merit. 

 While a trial court may modify a support payment “from the 

date that notice of such [modification] petition has been given 

to the responding party,” Code § 20-108, “[w]hether to make 

modification of a support order effective during a period when a 

petition is pending is entirely within the discretion of the 

trial court.” O'Brien v. Rose, 14 Va. App. 960, 965, 420 S.E.2d 

246, 249 (1992). A litigant may not unilaterally reduce 

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court-ordered child support payments. “Should circumstances 

change requiring alteration in the amount of support, a party's 

remedy is to apply to the court for relief.” Goodpasture v. 

Goodpasture, 7 Va. App. 55, 58, 371 S.E.2d 845, 847 (1988). 

 Father had no authority to pay less child support from July 

1997 through February 1998 than he was previously ordered to pay 

by the unmodified decree of divorce. Therefore, the trial court 

did not err in finding that father owed an arrearage of 

$2,932.50. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

Affirmed.

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