                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Alston and Decker
            Argued at Richmond, Virginia
PUBLISHED




            MICHAEL A. OLEY
                                                                                OPINION BY
            v.     Record No. 1857-13-2                                  JUDGE ROBERT J. HUMPHREYS
                                                                             SEPTEMBER 9, 2014
            LISA S. BRANCH


                              FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY
                                           Timothy K. Sanner, Judge

                           Michael Oley, pro se.

                           No brief or argument for appellee.


                   Michael A. Oley (“Oley,” “father,” or “plaintiff”) appeals a child support order entered

            by the Goochland County Circuit Court (the “circuit court”) on August 27, 2013 addressing Lisa

            S. Branch’s (“Branch,” “mother,” or “defendant”) monthly child support obligations. He asserts

            seven assignments of error in support of his appeal. His first, second, and third assignments of

            error all allege that the circuit court erred as a matter of law in determining that Branch’s

            personal injury settlement annuity, Pell Grant, and “free house” did not constitute income for the

            purpose of calculating child support. Oley’s fourth assignment of error is that the circuit court

            erred as a matter of law in refusing to grant him credit for childcare expenses. His fifth and sixth

            assignments of error are that the circuit court abused its discretion in declining to award him

            child support for the children’s private school tuition and in declining to award him child support

            arrearages. Finally, in his seventh assignment of error, Oley asserts that he was denied due

            process because he did not receive a fair hearing in the circuit court.
       Each of Oley’s arguments are addressed in turn below. For the reasons that follow, the

judgment of the circuit court is affirmed in part, and reversed and remanded in part.

                                          I. BACKGROUND

       Pursuant to Oley’s and Branch’s custody agreement, Oley is the custodial parent of their

three minor children—ages nine, eleven, and fourteen. Oley and Branch have a fourth child who

turned eighteen several months before the circuit court’s August 27, 2013 child support order

that is the focus of this dispute. The issues before this Court relate solely to the circuit court’s

decisions regarding Branch’s child support obligations, and therefore the facts below are relevant

only to those disputes.

             A. The Parties’ Gross Monthly Incomes and Child Support Obligations

       Branch was unemployed and enrolled in school to become a dental assistant at the time of

the child support hearing. The circuit court found that the evidence allowed it to impute income

to Branch based on her most recent employment. It concluded that Branch was “capable of

earning at least the rate of $8.50 an hour based on her [former] employment at Chick-fil-A,”—

resulting in a monthly income of $1,462. Consequently, the circuit court fixed Branch’s gross

monthly income at $1,462.

       Oley argued that Branch had other sources of “income” that the circuit court was required

to consider when calculating her gross income pursuant to the statutory guidelines. Branch

receives annuity payments stemming from a personal injury settlement from a 1987 car accident

she was in when she was sixteen years old. She was awarded lifetime monthly payments of

$1,000 as well as four $100,000 lump sum payments that were made in 1997, 2002, 2007, and

2012. The circuit court found that Branch’s personal injury settlement annuity was excluded

from being considered part of her gross income. Relying on this Court’s decision in Whitaker v.

Colbert, 18 Va. App. 202, 442 S.E.2d 429 (1994), the circuit court reasoned that because the

                                                 -2-
settlement itself was not apportioned as to loss of income or lost wages, an annuity stemming

from that settlement was not intended to be included in the statutory definition of gross income.

       Branch also received a $5,500 Federal Pell Grant (“Pell Grant”) to go back to school.

Oley argued that the circuit court should include her Pell Grant as well as $1,200 in “free

housing”—the cost of the rent she paid before moving in with her mother—because it is a “gift”

she receives by living with her mother free-of-charge. Without stating any reasons for doing so,

the circuit court did not include either item in its computation of Branch’s gross income.

       With respect to Oley’s monthly income, Oley owns a startup Internet business that he

runs from his home. Prior to that, he owned a roofing and construction company that he

“shuttered” in 2009 due to changes in the economic climate. The circuit court noted that Oley’s

bank account appeared to have large sums of money and he had recently purchased a $60,000

recreational vehicle using sums from those accounts. Oley attributed the money in his accounts

to his past earnings and the proceeds from the sale of his home. The circuit court noted that it

found Oley’s “testimony regarding his income to be very suspicious.” However, despite its

reservations, the circuit court concluded that “[i]t appears that the only evidence that we really

have is that [Oley] made $500, essentially, over the first four months of this year.” The circuit

court fixed Oley’s gross monthly income at $125.

       The circuit court concluded that pursuant to the statutory schedule the presumptive

support Branch should pay Oley each month for their three minor children was $1,711.20.1

However, the circuit court found that a deviation from the guidelines was warranted because

“applying the guidelines amounts would work at a substantial inequity in this case.” Because



       1
          The $1,711.20 presumptive support amount was calculated according to the schedule
contained in Code § 20-108.2(B) by considering the fact that the parties had three children,
Branch’s income was $1,462, Oley’s income was $125, and Oley was paying $1,313 per month
for the children’s health insurance.
                                             -3-
Branch was only capable of earning $1,462 per month, the guideline amount of $1,711.20 would

require “her to pay something that she doesn’t have.” In considering a deviation from the

guidelines, the circuit court additionally noted that “the evidence establishes that the father

appears to have plenty of money to meet the needs of his children.”

       Based on its finding that a deviation from the guidelines was appropriate, the circuit court

ordered Branch to pay Oley $453.75 per month from May 1, 2011 until March 1, 2013 in child

support for their four children—ending the date of their fourth child’s eighteenth birthday. After

March 1, 2013, the circuit court ordered Branch to pay Oley $400 a month in child support for

their remaining three minor children.

                                        B. Childcare Expenses

       Oley runs his startup Internet company mainly from his home, but occasionally he works

from a “virtual office” in Innsbrook. The three minor children attend school every weekday

from 8:15 a.m. until 3:10 p.m. Oley testified that he requires childcare from 8:30 a.m. to

5:00 p.m. His current nanny works those hours, and sometimes longer, for $400 per week.

According to Oley, the nanny’s responsibilities included “cooking, cleaning, laundry, [and] a

multifaceted amount of things.” The children are home only approximately two hours out of the

nanny’s 8:30 a.m. to 5:00 p.m. workday.

       The circuit court found that the evidence demonstrated that the nanny’s presence was

more akin to “taking a role of a mother” rather than providing childcare that “simply allow[s]

[Oley] to work.” Noting that it found Oley’s testimony “not particular[ly] credible,” the circuit

court concluded that the evidence did not demonstrate that the nanny’s responsibilities had

“anything to do with work-related day care.” Therefore, the circuit court denied Oley’s request

for childcare support because there was “insufficient evidence to find that [he] has legitimate




                                                -4-
work related child care expenses to be considered in accordance with the guidelines.” (Emphasis

added).

                                      C. Private School Tuition

          Oley’s and Branch’s three minor children currently attend a private school named Salem

Christian School. Their combined yearly tuitions total $15,000. The children have not always

attended Salem Christian—they were home schooled for “a couple of years” and attended public

school for “a couple of years.” The children re-entered Salem Christian after a period of home

schooling. The parties’ custody agreement was only that the children would not be home

schooled; however, the agreement did not specifically mandate their attendance at Salem

Christian. Branch does not object to the children attending Salem Christian.

          The circuit court denied Oley’s motion to require Branch to pay for the children’s private

school tuition because it found that Oley’s evidence failed to establish that “there is a need for

the children to attend private school,” “that the funds and needs otherwise cannot be met in

public school,” and “that the mother has the ability to pay for it.”

                                            II. ANALYSIS

                           A. “Gross Income” under Code § 20-108.2(C)

          Statutory child support guidelines were designed “to assure that both the child’s needs

and the parent’s ability to pay are considered in determining the amount of support awards.”

Richardson v. Richardson, 12 Va. App. 18, 20, 401 S.E.2d 894, 895 (1991). Code § 20-108.2(A)

establishes a rebuttable presumption that an application of the schedule contained in the statute

results in the correct amount of child support to be awarded under the circumstances. Only after

determining the presumptive amount of support according to the schedule, may the circuit court

adjust the support amount based on the factors found in Code § 20-108.1. Howe v. Howe, 30

Va. App. 207, 214, 516 S.E.2d 240, 244 (1999). Any “[d]eviations from the presumptive

                                                 -5-
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.” Id.

        Thus, “the starting point for a trial court in determining the monthly child support

obligation of a party is the amount as computed by the schedule found in Code § 20-108.2(B).”

Richardson, 12 Va. App. at 21, 401 S.E.2d at 896. This amount “varies according to the

combined gross income of the parties and the number of children involved.” Id. Code

§ 20-108.2(C) defines “gross income” as:

               all income from all sources, and shall include, but not be limited
               to, income from salaries, wages, commissions, royalties, bonuses,
               dividends, severance pay, pensions, interest, trust income,
               annuities, capital gains, social security benefits except as listed
               below, workers’ compensation benefits, unemployment insurance
               benefits, disability insurance benefits, veterans’ benefits, spousal
               support, rental income, gifts, prizes or awards.

(Emphasis added). Subsection (C) then enumerates specific sources of income that are

categorically excluded from being considered part of a party’s “gross income.” See, e.g., Code

§ 20-108.2(C)(1)-(4). “No additions or subtractions from the gross income, as defined in Code

§ 20-108.2(C), even if otherwise valid considerations, may be made before this figure is

determined.” Richardson, 12 Va. App. at 21, 401 S.E.2d at 896.

       Oley asserts in his first, second, and third assignments of error that the circuit court erred

as a matter of law by excluding certain sources of funds in its computation of Branch’s “gross

income.” Specifically, he argues the following items are “income” as defined by Code

§ 20-108.2(C): (i) Branch’s personal injury settlement annuity payments; (ii) the “free housing”

Branch receives as a “gift” from her mother; and (iii) Branch’s Pell Grant. Whether the circuit

court correctly concluded that those items are not “income” as defined by Code § 20-108.2(C)

presents a question of law that we review de novo. See Navas v. Navas, 43 Va. App. 484, 487,

599 S.E.2d 479, 480 (2004).

                                                -6-
                              i. Personal Injury Settlement Annuity

       Oley first argues that the circuit court erred by failing to include Branch’s annuity

payments, originating from a 1987 personal injury settlement, in the computation of her “gross

income.” We disagree.

       This Court has previously considered whether personal injury settlements are “income”

within the scope of Code § 20-108.2(C). In Whitaker, this Court upheld a circuit court’s refusal

to treat a father’s personal injury settlement as income. 18 Va. App. at 204, 442 S.E.2d at 431.

This Court reasoned that because the definition of “gross income” includes “capital gains,” and

“capital gains are by their nature profits, not returns of capital,” the General Assembly intended

that Code § 20-108.2(C) only “applies to income, not capital recoupment.” Id. at 204-05, 442

S.E.2d at 431 (emphasis added). In the case of personal injury settlements, the evidence must

prove that the settlement generates income or profit rather than merely makes the recipient whole

from damages incurred. Id. Because the father’s settlement was not apportioned as to pain and

suffering, permanent injury or disability, lost wages, lost capacity, or future medical needs, “it

would be speculative at best as to how to attribute any part of that settlement to prior lost wages

as opposed to the other elements of damages.” Id. at 205, 442 S.E.2nd at 431. Consequently, the

Whitaker Court held that in that particular case, the evidence did not prove that the settlement

generated income for the father and was not mere capital recoupment and therefore the

settlement could not be considered in awarding child support obligations.

         Oley argues that because Branch receives her personal injury settlement in the form of

an annuity, Branch’s payments are “income” under subsection (C). The definition of “gross

income” contained in Code § 20-108.2(C) specifically includes “income from . . . annuities.”

The plain language of the statute requires that in order to be considered when calculating child




                                                -7-
support obligations, annuities—or any of the other enumerated items in Code § 20-108.2(C)—

must generate income to the recipient.

       Dispersing Branch’s personal injury settlement in the form of an annuity does not change

the underlying character of the source—a personal injury settlement. Consequently, the mere

fact that Branch receives her personal injury settlement in the form of an annuity does not render

our holding in Whitaker inapplicable. This Court’s holding in Whitaker does not stand for the

proposition that personal injury settlements are categorically excluded from being considered

income under subsection (C). Rather Whitaker explains under what circumstances a personal

injury settlement may or may not be considered income. In order for a personal injury settlement

to be considered income pursuant to Code § 20-108.2(C), the evidence must prove that a defined

portion of the settlement generates income to the recipient rather than merely compensates for a

past injury.

       In this case, like in Whitaker, Branch’s settlement is not apportioned as to the nature of

the damages that involve the settlement. There is nothing in the record that indicates that the

settlement involved compensation for lost wages or lost income—particularly in light of the fact

that Branch was a minor at the time of the accident. The circuit court concluded that Branch’s

settlement payments, even if paid out over many years in the form of an annuity, were capital

recoupments intended to make “a badly injured child whole.” The record supports the circuit

court’s determination that the evidence did not prove that the annuity payments generated any

income to Branch. Therefore, the circuit court did not err in excluding Branch’s personal injury

payments when computing her gross income pursuant to Code § 20-108.2(C) simply because

they took the form of an annuity.




                                               -8-
                                          ii. Free Housing

       Oley next argues that the circuit court erred by failing to include the monetary value of

Branch’s “free housing” when it calculated her gross income. He asserts that the “free housing”

is a “gift” from her mother, and is therefore “income” as defined by Code § 20-108.2(C). We

disagree.

       Oley relies on Carmon v. Department of Social Services, 21 Va. App. 749, 467 S.E.2d

815 (1996), to support his proposition that free room and board must constitute nonmonetary

income. However, Oley fails to read the holding in Carmon within its factual context. In

Carmon, this Court found that free room and board were considered “income” under Code

§ 20-108.2(C) because Carmon received them in exchange for her services—collecting rent,

cleaning vacated rooms, etc. 21 Va. App. at 754-55, 467 S.E.2d at 818. The Court found that

the free lodging compensation she received in exchange for services was “nonmonetary income”

that was within the scope of Code § 20-108.2(C). Id. Because the value of the room and board

Carmon received as compensation for her services was $300, this Court affirmed the circuit

court’s finding that her income was $300. Id. In this case, the holding in Carmon is inapplicable

because there is nothing in the record establishing that Branch received anything in exchange for

her room at her mother’s house.

       Oley argues that Branch’s “free housing” is a gift from her mother. Although “the statute

defines gifts as income,” Howe, 30 Va. App. at 214, 516 S.E.2d at 244, allowing someone to live

with you is not a “gift.” “A gift is property that is voluntarily transferred to another without

compensation.” Goldhamer v. Cohen, 31 Va. App. 728, 736, 525 S.E.2d 599, 603 (2000) (citing

Black’s Law Dictionary 696 (7th ed. 1999)). Here there is no property being transferred.

Moreover, there is nothing in the record to establish the value of Branch’s room at her mother’s

house. Oley asserts that the value of the room is $1,200 per month because her previous monthly

                                                -9-
rent was $1,200 per month. In other words, Oley argues that the “income” is the money Branch

saves by living with her mother rather than living in her previous apartment. Branch’s decision

to live with her mother amounts only to a decrease in spending, and is not property voluntarily

transferred to her by her mother, nor does it generate “income” as defined by Code

§ 20-108.2(C). Therefore, the circuit court did not err in excluding Branch’s housing

arrangements when calculating her gross income.

                                           iii. Pell Grant

       Oley next argues that the circuit court erred by failing to include Branch’s $5,500 Pell

Grant when it calculated her gross income. Whether federal educational grants are “income” for

the purposes of calculating child support is a matter of first impression in Virginia.2




       2
         A select number of other jurisdictions have addressed whether educational grants are
income for the purposes of calculating child support; however, those courts’ determinations all
turned on the language of each state’s specific statutory language. See, e.g., In re Marriage of
Syverson, 931 P.2d 691, 698 (Mont. 1997) (concluding that money from the mother’s Pell Grant
that exceeded her tuition bill should be considered gross income because the statute defined
gross income as “grants, scholarships, third party contributions or other money intended to
subsidize the parent’s living expenses and which are not required to be repaid at some later date”
(quoting Mont. Admin. R. § 46.30.1513(2)(e))); In re Marriage of Mellott, 93 P.3d 1219,
1221-22 (Kan. Ct. App. 2004) (concluding that tuition reimbursements from an employer not
exceeding cost of tuition were not income for child support purposes because under the statutory
guidelines income is only imputed to a noncustodial parent when “a parent receives significant in
kind payments that reduce personal living expenses as a result of employment, such as a
company car, free housing, or reimbursed meals,” and tuition reimbursement did not equate to
living expenses reimbursement); Thibadeau v. Thibadeau, 441 N.W.2d 281, 285 (Wis. 1989)
(concluding that the trial court erred by considering a federal educational grant as gross income
because the state statute defined gross income as income from any source “unless excluded by
law,” and the federal tax code excludes educational grants from gross income calculations);
McKyer v. McKyer, 632 S.E.2d 828, 836 (N.C. Ct. App. 2006) (remanding for further factual
findings because the state statutory guidelines specifically excluded from the definition of
income “benefits received from means-tested public assistance programs” and the trial court had
made no findings as to whether the school grant was a benefit from a means-tested public
assistance program, whether it significantly reduced the father’s personal living expenses, or
whether there are any limits upon the use of the funds).

                                               - 10 -
       The Pell Grant Program provides financial assistance to students attending eligible

intuitions of higher education to help subsidize their post-secondary education costs.3 Trustees

of the Cal. State Univ. v. Riley, 74 F.3d 960, 962 (9th Cir. 1996); see also 34 C.F.R. § 690.1

(“The Federal Pell Grant Program awards grants to help financially needy students meet the cost

of their postsecondary education.”). Educational costs are not limited to tuition but may include

other supplemental costs such as room and board, books, or services. See, e.g., 20 U.S.C.

§ 1070a(e) (“Any disbursement allowed to be made by crediting the student’s account shall be

limited to tuition and fees and, in the case of institutionally owned housing, room and board.

The student may elect to have the institution provide other such goods and services by crediting

the student’s account.”).

       “Under Code § 20-108.2(C), gross income includes ‘all income from all sources,’ and

unless specifically excluded, any income from any source is subject to inclusion.” Frazer v.

Frazer, 23 Va. App. 358, 378, 477 S.E.2d 290, 299-300 (1996) (emphasis added) (quoting Code

§ 20-108.2(C)) (holding that because Code § 20-108.2(C) did not specifically exclude voluntary

contributions to retirement plans from the definition of gross income, the contributions should be

included in gross income for child support purposes). While Code § 20-108.2(C) does not

specifically enumerate educational grants, such as the Pell Grant, under its definition of “gross

income,” there is nothing contained in the language of the statute, nor in this Court’s precedent,

that explicitly or implicitly excludes federal educational grants from being considered income.

       Code § 20-108.2(C)’s definition of gross income specifically includes other

governmental assistance programs, such as “social security benefits.” However, subsection (C)




       3
         Notably, a Pell Grant is distinguishable from a student loan because a Pell Grant
recipient does not need to repay the grant.

                                               - 11 -
explicitly provides that gross income “shall not include” “supplemental security income

benefits” or “public assistance and social services as defined in Code § 63.2-100.” Code

§ 20-108.2(C)(1) and (2) (emphasis added). A Pell Grant does not meet any of those enumerated

exclusions. If the General Assembly intended to exclude additional government subsidies, such

as educational grants, it would have specifically articulated those exclusions. See

Commonwealth v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 96, 100 (2000) (“The maxim of

statutory construction expressio unius est exclusio alterius . . . provides that where a statute

speaks in specific terms, an implication arises that omitted terms were not intended to be

included within the scope of the statute.”). Because the General Assembly specifically

enumerated certain governmental assistance programs that “shall not” be considered “gross

income,” non-enumerated programs, such as federal educational grants, are therefore subject to

inclusion.

       Therefore, because Code § 20-108.2(C) does not specifically exclude federal education

grants, like the Pell Grant in this case, they are subject to inclusion. Consequently, the circuit

court erred by not considering Branch’s Pell Grant when it calculated her gross income.

Accordingly, we remand this case to the circuit court to recalculate the parties’ presumptive

monthly support obligations in accordance with this opinion before it makes any deviations from

the guidelines based on the factors found in Code § 20-108.1.4




       4
         Notably, Code § 20-108.1(B)(11) provides a basis for deviation in considering the
“[e]arning capacity, obligations, financial resources, and special needs of each parent.”
Consequently, merely because a particular source of income is included or excluded in the
party’s “gross income,” the circuit court retains the discretion to consider those additional
resources as a basis for deviation if strict adherence to the guidelines “would be unjust or
inappropriate in a particular case.” Code § 20-108.1(B).
                                                 - 12 -
                                      B. Childcare Expenses

       Oley next argues that the circuit court erred as a matter of law by failing to award him

childcare expenses.

       Code § 20-108.2(F) provides that: “Any child-care costs incurred on behalf of the child

or children due to employment of the custodial parent shall be added to the basic child support

obligation.” While Oley is correct that this Court in Prizzia v. Prizzia, 58 Va. App. 137, 707

S.E.2d 461 (2011), stated that the language in Code § 20-108.2(F) “is mandatory,” he ignores the

final holding in that case. In Prizzia, this Court affirmed the trial court’s decision to exclude day

care expenses from its support award because the custodial parent failed to offer sufficient

evidence demonstrating the appropriate amount of day care expenses. Id. at 171, 707 S.E.2d at

478. Specifically, there was insufficient proof that the amount requested was reasonable in

comparison to alternative day care centers and that free day care provided by public schools was

unavailable to the child. Id. at 171, 707 S.E.2d at 477-78. Additionally, the custodial parent

testified that she was paying the nanny a higher hourly rate than she was earning herself. Id. In

affirming the trial court, this Court noted that “[s]imply because a statute requires inclusion of

certain expenses in a child support award, it does not follow that the party seeking the inclusion

of those expenses does not have the burden to produce sufficient credible evidence showing the

appropriate amount of those expenses.” Id. at 171-72, 707 S.E.2d at 478.

       In this case, the circuit court found that Oley failed to produce credible evidence that the

childcare costs he was seeking were employment related. The nanny worked from 8:30 a.m. to

5:00 p.m. cooking, cleaning, and doing laundry while the children were in school 8:15 a.m. to

3:00 p.m. and Oley was working from home. Code § 20-108.2(F) only requires that the custodial

parent receive child support for childcare costs incurred “due to employment of the custodial

parent.” Here, the circuit court was free to conclude that Oley failed to prove that the nanny was

                                                - 13 -
necessary due to his employment or that he failed to demonstrate the requested amount of day

care expenses was appropriate under the circumstances. Therefore, we find that the circuit court

did not abuse its discretion in denying Oley’s request for childcare costs.

                                     C. Private School Tuition

       Oley next argues that the circuit court abused its discretion in declining to deviate from

the statutory guidelines by including the children’s private school tuition as part of Branch’s

child support obligation.

       “Implicit in the statutory scheme is that educational expenses are included in the

presumptive amount of child support as calculated under the Code.” Smith v. Smith, 18

Va. App. 427, 435, 444 S.E.2d 269, 275 (1994). However, as explained supra, it is within the

circuit court’s discretion to deviate from the presumptive support guidelines based on the factors

found in Code § 20-108.1(B) as they affect the obligation of each party, the ability of each party

to provide child support, and the best interests of the child. Code § 20-108.1(B). One of the

factors providing grounds for deviating from the statutory presumption specifically includes

direct payments ordered by the court for “educational expenses.” Code § 20-108.1(B)(6). The

circuit court may order a parent “to pay for private educational expenses, even though such

expenses exceed the guidelines, when there is a demonstrated need for the child to attend private

school and the parent has the ability to pay.” Ragsdale v. Ragsdale, 30 Va. App. 283, 295, 576

S.E.2d 689, 704 (1999) (emphasis added) (citing Solomond v. Ball, 22 Va. App. 385, 391, 470

S.E.2d 157, 160 (1996)).

       In determining whether there is a demonstrated need for the child to attend private

school, “the trial court must consider ‘factors such as the availability of satisfactory public

schools, the child’s attendance at private school prior to the separation and divorce, the child’s

special emotional or physical needs, religious training, and family tradition.’” Joynes v. Payne,

                                                - 14 -
36 Va. App. 401, 424, 551 S.E.2d 10, 21 (2001) (quoting Solomond, 22 Va. App. at 391, 470

S.E.2d at 160).

       In this case the circuit court declined to require Branch to pay the children’s private

school tuition because, after having “reviewed the Eisert case,” the court found that Oley’s

evidence failed to establish “there [wa]s a need for the children to attend private school and that

the funds and needs otherwise cannot be met in public school.” Additionally, the circuit court

found that Oley failed to establish “that the mother has the ability to pay for it.” In Eisert v.

Eisert, No. 2990-06-4, 2008 Va. App. LEXIS 134, at *18-19 (Va. Ct. App. Mar. 18, 2008), an

unpublished decision of this Court, we found that because the children’s need to attend private

school was not in dispute the circuit court “was only required to explain in writing why it was

‘unjust or inappropriate’ for wife to share in the cost of tuition.” Id. at *19. This Court

concluded that the circuit court did not abuse its discretion in ordering the husband to pay the full

cost of tuition because there was a large disparity in the parties’ disposable incomes. Id.

       In this case, unlike Eisert, the parties did not affirmatively agree that private school

attendance was necessary. Although Oley asserts that they agreed private school was in the best

interest of the children, the record in the light most favorable to the party that prevailed in the

court below reflects that Branch merely had no objection to the children attending Salem

Christian School. The parties’ agreement was only that the children would not be home

schooled. The circuit court did not find any evidence in the record that demonstrated a need to

attend private school or that the children’s needs could not adequately be met in public school.

The children had attended public school in the past and had also been home schooled. There was

no evidence as to any special emotional or physical needs of the children that would require them

to attend private school. Nor was there any evidence supporting the children’s need to attend

private school due to religious training.

                                                - 15 -
       Irrespective of a demonstrated need for private school attendance, the circuit court also

found that the evidence did not establish that Branch had the ability to pay for private school

tuition. In fact, the circuit court concluded that Branch did not even have the ability to pay the

presumptive monthly support amount according to the child support schedule nor any excess

amount for private school tuition.

       Here, the circuit court did not order Oley to pay for the children’s tuition, but rather

concluded that Branch did not have the ability to contribute to the cost nor was there a

demonstrated need to order her to contribute. In other words, the circuit court merely concluded

that Oley had failed to demonstrate a justification for deviating from the statutory guidelines by

ordering Branch to pay the children’s tuition.

       The determination of child support is a matter of discretion for the circuit court, and

therefore we will not disturb its judgment on appeal unless plainly wrong or unsupported by the

evidence. Vissicchio v. Vissicchio, 27 Va. App. 240, 253, 498 S.E.2d 425, 432 (1998). In

reaching its decision, the circuit court properly considered both the children’s need for private

school and Branch’s ability to pay tuition. Under these circumstances, we find that there was

sufficient evidence to support the circuit court’s decision to decline to deviate from the child

support guidelines to include the cost of the children’s private school tuition, and therefore we

find no abuse of discretion.

                                     D. Child Support Arrearages

       Oley next argues that the circuit court erred by failing to award him child support

arrearages.

       The circuit court found that there were no child support arrearages as of February 28,

2013. The juvenile and domestic relations district court had set Branch’s monthly payments at

$453.75 per month for the four children. The circuit court adopted that number for the four

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children but lowered her payments to $400 a month beginning March 1, 2013, the date of the

fourth child’s eighteenth birthday. Consequently the circuit court found that Branch had a credit

for the payments made from March 1, 2013 to May 22, 2013 and there was an overage in the

amount of $163.42 as of May 31, 2013. Because we are remanding this case to the circuit court

to recalculate the presumptive guidelines before any deviations respecting the parties’ monthly

child support, and because the circuit court’s determination regarding alleged arrearages was

based upon the monthly support obligations it ordered, we need not address this issue.

                                          E. Due Process

       Oley’s final argument is that he did not receive a fair hearing because the circuit court

was biased and he therefore should receive a new trial. Specifically he argues that the circuit

court’s deviations from the guidelines are “so far removed” from similar cases in Virginia, that

there is a “strong appearance of bias.” Further, he asserts that while he “does not claim any

knowledge of any pre-disposition by the [circuit] court,” its

               verbal utterances of apparent favoritism of mother, bias against
               father, viewed in tandem with the Final Order, one would be hard
               pressed not to see the appearance that the [circuit] court simply
               used judicial authority and statutorily granted powers of deviation
               to correct a personally perceived injustice not supported by the
               evidence or the facts, nor grounded in law.

       Oley cites no authority in support of his position that his due process rights were violated.

“Rule 5A:20(e) provided, in part, that the opening brief shall include ‘[t]he principles of law, the

argument, and the authorities relating to each question presented.’” Atkins v. Commonwealth,

57 Va. App. 2, 20, 698 S.E.2d 249, 258 (2010). “The Supreme Court concluded that ‘when a

party’s ‘failure to strictly adhere to the requirements of Rule 5A:20(e)’ is significant, ‘the Court

of Appeals may . . . treat a question presented as waived.’” Id. (quoting Parks v. Parks, 52

Va. App. 663, 664, 666 S.E.2d 547, 548 (2008)). “If the parties believed that the circuit court

erred, it was their duty to present that error to [the Court of Appeals] with legal authority to
                                                - 17 -
support their contention.” Fadness v. Fadness, 52 Va. App. 833, 851, 667 S.E.2d 857, 866

(2008). Because Oley provides no legal argument or authority in his brief to support his position

that he was denied due process of law and did not receive a fair hearing, his argument is waived

under Rule 5A:20(e).

       Moreover, Oley fails to demonstrate any reversible error. “A litigant is denied due

process if his or her case is heard before a judge who harbors ‘such bias or prejudice as would

deny [the litigant] a fair trial.’” Piatt v. Piatt, 27 Va. App. 426, 435-36, 499 S.E.2d 567, 572

(1998) (quoting Welsh v. Commonwealth, 14 Va. App. 300, 314, 416 S.E.2d 451, 459 (1992)).

Oley concedes that he has no knowledge of any pre-existing bias of the circuit court, but rather

asserts that the circuit court’s rulings and remarks from the bench demonstrated partiality. This

argument is without merit. As the factfinder, the circuit court’s function is to make credibility

determinations. In this capacity it found Branch credible and Oley not credible. All of the

circuit court’s legal rulings demonstrated an appropriate application of reason and impartiality.

                                         III. CONCLUSION

       In sum, we reverse the circuit court’s judgment excluding Branch’s Pell Grant from the

computation of her gross income under Code § 20-108.2(C). We remand this case to the circuit

court for recalculation of the child support schedule to include Branch’s Pell Grant as part of her

“gross income” before it considers any deviation pursuant to Code § 20-108.1(B). The circuit

court’s judgment regarding all other issues before us is affirmed.

                                                                                   Affirmed in part,
                                                                                   reversed in part,
                                                                                     and remanded.




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