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May Updates in the Law

A trial court may average a party's fluctuating income when determining a child support obligation, but only after calculating child support based on the party's current income.

Tidwell v. Late, 2017 Va. App. LEXIS 137, 799 S.E.2d 696, 2017 WL 2332824 (Va. Ct. App. May 30, 2017)

A Fairfax County Circuit Court judge heard a Father's Petition to Modify Child Support based on his position that there had been a material change in childcare costs and in income since their divorce decree, two years prior. The trial court found that there was a material change in income. However, when calculating the Father's new child support obligation, pursuant to Virginia Code section 20-108.2, the judge erred in calculating the Father's income, which was then reversed by the Court of Appeals.

In this case, the Father is an independent contractor, working for his new wife's company. Evidence and testimony demonstrated that Father's income had dropped by more than $14,000 in the year following the parties' divorce, followed by another $8,000 drop the next year, before leveling out to a figure that was $21,000 less than his reported income at the time of divorce.

Pursuant to 20-108.2, when a Circuit Court begins its consideration of a party's Child Support Obligation, it must start with that party's actual "gross income." In this case, the Circuit Court decided that the most accurate way to determine that amount would be to average Father's last four years of income. However, the Court of Appeals disagreed and reversed the Circuit Court on this point, holding that the trial court must first calculate the presumptive child support obligation pursuant to the guidelines set forth in 20-108.2, based upon the Father's current income. Then, after that calculation, the trial court may analyze whether the Father's history of fluctuating income manifested a greater earning capacity which may then in turn render the presumptive child support calculation inappropriate or unjust. Thereafter, the trial court would have the discretion to average the Father's income to ascertain his true earning capacity and consider a deviation from the presumptive support amount.

On appeal, Father argued four other assignments of error, unrelated to the issue of his income, but those were each denied. Read the full case here.

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