COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, Haley and Petty Argued at Alexandria, Virginia

DEBORAH CLARE OLSON MEMORANDUM OPINION * BY v. Record No. 2089-06-4 JUDGE D. ARTHUR KELSEY JULY 17, 2007 SCOTT CHARLES OLSON

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Rossie D. Alston, Jr., Judge David M. Levy (Surovell Markle Isaacs & Levy PLC, on brief), for appellant. Timothy W. Graves (A Attorney LLC, on brief), for appellee.

The trial court ordered Scott Olson to pay ch ild support to his former wife, Deborah Clare Olson. She appeals, arguing the trial court abused its discretion by departing downward from the statutory guidelines without provi ding a sufficient explanation fo r doing so. She also contends the downward departure, however it may be expl ained, was plainly wrong and without evidence to support it. Agreeing with the first propos ition, we remand wit hout ruling upon the second. “Code §§ 20-108.1 and 20-108.2 govern the method by which a trial court makes a child support determination and awar d.” Princiotto v. Gorrell , 42 Va. App. 253, 258, 590 S.E.2d 626, 629 (2004). Code § 20-108.1(B) applie s a “rebuttable presumption” that the correct amount of a child support award is determined pursuant to guidelines laid out in Code § 20-108.2. To rebut the presumption, the trial court “s hall make written findings in th e order, which findings may be incorporated by reference, that the applica tion of such guidelines would be unjust or inappropriate in a particular case.” Code § 20-108.1(B).

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - The trial court’s findings must “give a jus tification of why the or der varies from the guidelines,” id. , in sufficient “detail and exactness to al low for effective appellate review of the findings,” Pharo v. Pharo , 19 Va. App. 236, 238, 450 S.E.2d 183, 184 (1994) (citation omitted). The degree of specificity required depends on the c ontext of the dispute and our ability to discern

with confidence the basis of the trial cour t’s decision. As we have explained: The statutory requirement of “wr itten findings” was enacted by the legislature for a reason. By includi ng this provision, the legislature intended that the trial courts would do something more than simply make a conclusory written statement of its findings. We conclude that the legislature intended that the trial courts would make explicit findings of fact amenable to appe llate review. . . . Specifically, these findings must identify the factors t hat justified deviation from the guidelines, and explain why and to what extent the fa ctors justified the adjustment.

Richardson v. Richardson , 12 Va. App. 18, 22, 401 S.E.2d 894, 896-97 (1991) (footnote and citations omitted) (emphasis added); see also Princiotto , 42 Va. App. at 260, 590 S.E.2d at 630; Herring v. Herring , 33 Va. App. 281, 289-90, 532 S.E.2d 923, 927-28 (2000).

The final divorce decree in this case ordere d Scott Olson to pay $827 per month in child support, an amount the parties agree is $300 pe r month less than the presumptive award under Code § 20-108.2’s guidelines. 1 The decree incorporated by refere nce the trial court’s ruling from the bench that “a $300 deviation is appropriate unde r 20-108.1 (14, 15, 18).” When counsel questioned whether the downward de parture related to Scott Olson’ s earlier agreement to fund a college investment fund for the children at a rate of $300 per month, th e court replied: Actually I’m giving him – I reflected a lot of things, and if you look at the code provisions I cited, I think it was 20-108.1 (14, 15, 18). . . .

1 Scott Olson asserts his former wife waiv ed this issue under Rule 5A:18 by failing to object to the final decree her c ounsel drafted. We would agree we re it not for her later, timely motion to reconsider which addressed th e issue in considerable detail. See Newsome v. Newsome , 18 Va. App. 22, 25, 441 S.E.2d 346, 347-48 (1994); Lee v. Lee , 12 Va. App. 512, 515-16, 404 S.E.2d 736, 738 (1991) ( en banc ). The trial court de nied the motion without elaboration.- 3 - One of them was the tax consid erations. One was a catch-all provision. I believe 18 is a catch-all. Provisions made with regards to marital property, that was 14. Tax consequences, that was 15 and 18, the catch-all.

The trial court added “that the reason for the de viation was because of th e other considerations specifically the college payment.” These findings are insufficiently specific for us to conduct effective appellate review. The trial court mentioned three topics: tax cons iderations, the equitabl e distribution award, and the catch-all provision. We do not know, however, what tax c onsiderations justified the reduction, which aspect of the e quitable distribution award rebutte d the presumptive award, or to what degree the catch-all provisi on caught some unspecified equita ble reason for departing from the guidelines. 2 The “college payment” (an agreed m onthly contribution by Scott Olson to a college fund) was one of “a lot of things” take n into account by the tria l court, but we do not know why and to what extent the trial court relied upon either the college payment or the “other considerations” to justify the $300 per month adjustment. Under Code § 20-108.1(B), the departure findings “must identify the factors that justified deviation from the guidelines, and explain why and to what exte nt the factors justified the adjustment.” Princiotto , 42 Va. App. at 260, 590 S.E .2d at 630 (quoting Richardson , 12 Va. App. at 22, 401 S.E.2d at 897). Finding the trial court’s explan ation inadequate under this standard, we remand this case w ith instructions to enter an order in compliance with Code § 20-108.1(B). 3

Remanded.

2 The trial court’s reference to statutory factors 14, 15, and 18 comes from the version of Code § 20-108.1 applicable at the time of the hear ing. Statutory amendments effective after the hearing, but before the entry of final j udgment, renumbered these factors. See 2006 Va. Acts chs. 785, 798 (effective July 1, 2006).

3 Given our ruling, we deny Scott Olson’s motion for an award of attorney fees on appeal.