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COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Richmond, Virginia 

WENDY COLLINS (ALEXANDER) 

v. Record No. 0168-95-2 MEMORANDUM OPINION*

 BY 

 JUDGE ROSEMARIE ANNUNZIATA 

CHARLES ALEXANDER, IV OCTOBER 24, 1995 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Judge 

 Joan C. McKenna (Rae H. Ely; Rae H. Ely and 

 Associates, on briefs), for appellant. 

 John K. Taggart, III (Patricia D. McGraw; 

Tremblay & Smith, on brief), for appellee. 

 This matter arises as a result of this Court's reversal and 

remand in the case of Alexander v. Alexander, 12 Va. App. 691, 

406 S.E.2d 666 (1991). The original case was initiated by Wendy 

Collins (Alexander) (mother) who, in April 1989, filed a Motion 

to Show Cause for Failure to Pay Child Support as ordered in the 

final decree of divorce entered on May 2, 1986. Charles 

Alexander, IV (father) in turn filed a Motion to Terminate 

Support. On remand for further proceedings on the issue of child 

support, the trial court was to determine the presumptive amount 

of support and enter written findings explaining any deviation 

made from the guidelines amount. Accordingly, a hearing ore

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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tenus on the issue of the 1989 child support obligation was held 

in August 1994. By final order entered on September 12, 1994, 

the court modified support, retroactive to July 1, 1989. Under 

that order, neither party was obligated to pay child support to 

the other. The mother subsequently filed a Motion to Rehear 

alleging that the father had fraudulently misrepresented his 

income for 1989; the motion was denied. Finding no error in the 

proceedings, the trial court's decision as reflected in its order 

of September 12, 1994 is affirmed. 

 The mother contends that the trial court erred in ordering a 

modification of support retroactive to July 1, 1989. This claim 

is without merit. The effect of this Court's reversal and remand 

was to restore the parties to their original position. Nassif v. 

The Board of Supervisors, 231 Va. 472, 480, 345 S.E.2d 520, 525 

(1986). Under Code § 20-108, support "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." "[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). 

 The record reveals that the husband filed his motion to 

terminate child support on June 6, 1989 and served a copy on the 

mother. She was provided with notice of the father's motion to 
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terminate support as of July 1, 1989. Thus, the trial court did 

not abuse its discretion in deciding to terminate support as of 

the filing date of the father's petition. Id. 

 Moreover, the termination of support retroactive to July 1, 

1989 is not barred by the doctrine of laches as the mother 

asserts. "'Laches is such neglect or omission to do what one 

should do as warrants the presumption that he has abandoned his 

claim, and declines to assert his right.'" Pittman v. Pittman, 

208 Va. 476, 479, 158 S.E.2d 746, 749 (1968) (citation omitted). 

 The father was under no obligation to reinstate the case on 

remand within a specified time period. Indeed, either party 

could have initiated the proceeding. Furthermore, the evidence 

fails to show any material change which would justify the 

application of the doctrine. See Pretlow v. Pretlow, 177 Va. 

535, 552, 14 S.E.2d 381, 387 (1941). 

 The mother further assigns as grounds for reversal the 

father's failure to produce evidence of his 1989 income to 

support the trial court's determination of the presumptive amount 

of support. She contends that the court therefore erred in 

denying her motion to strike and in entering an order terminating 

support. There is no merit in either position. It is clear that 

the father produced evidence at both the October 1989 and August 

1994 hearings that his 1989 income was approximately $5,200 a 

month. 

 The mother next contends that the father's evidence of 
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income was fraudulent and that the trial court erred in refusing 

to conduct an additional hearing based on these allegations. 

"After a court has concluded an evidentiary hearing 'during which 

each party had ample opportunity to present evidence, it [is] 

within the court's discretion to refuse to take further evidence 

on this subject.' In order to demonstrate an entitlement to a 

rehearing, a petitioner must show either an 'error on the face of 

the record, or . . . some legal excuse for his failure to present 

his full defense at or before the time of entry of the decree.'" 

Holmes v. Holmes, 7 Va. App. 472, 480, 375 S.E.2d 387, 392 

(1988) (citations omitted). Moreover, fraud must be established 

"'not by doubtful and inconclusive evidence, but clearly and 

conclusively.'" Aviles v. Aviles, 14 Va. App. 360, 366, 416 

S.E.2d 716, 719 (1992) (citation omitted). 

 The record discloses that, while counsel for mother alleged 

surprise at father's testimony concerning his income, she 

cross-examined him using the 1989 income tax returns which she 

had in her possession. When the father hesitated to verify one 

of the unsigned tax returns, counsel failed to produce her copy 

of the certification of authenticity signed by father's 

accountant in response. Counsel also subpoenaed the father's 

accountant as a witness for the August 1994 hearing, presumably 

to testify to the father's income, but then released him without 

calling him. On these facts, we cannot find that the trial court 

abused its discretion in refusing to conduct the requested 
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hearing. 

 The mother's last contention that the trial court failed to 

justify its decision to deviate from the child support guidelines 

and erroneously refused to enforce the parties' agreement as 

incorporated into the divorce decree is likewise not supported in 

the record. 

 It is well established that while parties may contract to 

provide child support in a manner other than that provided by the 

statutory guidelines, the trial court must determine "whether the 

agreed provisions for the child would better serve the interest 

or 'equities' for the parents and children." Watkinson v. 

Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 474 (1991). A 

court cannot be precluded by the parents' agreement from 

exercising its power to decree child support. Kelley v. Kelley, 

248 Va. 295, 298, 440 S.E.2d 55, 56 (1994). 

 It is also clear that because "there exists a rebuttable 

presumption that the amount of the award as determined by the 

application of the statutory child support guidelines is the 

correct amount . . . [i]n [a] . . . proceeding [to determine 

child support] . . . a trial court must first determine the 

presumptive amount of child support before considering any other 

factors." Alexander v. Alexander, 12 Va. App. 691, 695, 406 

S.E.2d 666, 667 (1991). 

 Whenever a child support award varies from 

the guidelines, Code § 20-108.2(A) requires 

the trial court to make written findings of 

fact "as determined by relevant evidence 

pertaining to the factors set out in 
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§§ 20-107.2 and 20-108.1" explaining why one 

or more of these factors would make it 

"unjust or inappropriate" to apply the 

guidelines to the case. 

Richardson v. Richardson, 12 Va. App. 18, 21-22, 401 S.E.2d 894, 

896 (1991). 

 In accordance with these mandates and based upon the 

parties' 1989 income, the trial court determined that the mother 

was obligated under the guidelines to pay the father $242.83 a 

month in child support. The trial court found it appropriate to 

deviate from the guidelines and gave specific reasons for its 

decision. He found that under the agreement the father paid 

mother $1,000 a month as support so that she could maintain 

housing and visit the children. However, the court also found 

that the mother did not use the support for those purposes. The 

court further found that, while the guidelines required the 

mother to pay child support to the father for the last remaining 

infant daughter, a deviation was justified to provide the mother 

with funds to be used in her attempt to repair the relationship 

with that child. The trial court is not required by law to 

simply adopt the parties' agreement to provide child support; 

such an agreement is but one factor, among many, for the court to 

consider in making its award. See Richardson, 12 Va. App. at 20, 

401 S.E.2d at 895. 

 As the justification for deviating from the guidelines and 

child support amount is clearly set forth in the trial court's 

ruling, the statutory requirements of Code § 20-108.1(B) were 
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satisfied. 

 In accordance with the reasons set forth by this Court, the 

decision of the trial court is affirmed. 

 Affirmed.