                      COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia


TERRENCE M. HACKETT
                                            MEMORANDUM OPINION * BY
v.     Record No. 2640-97-2                 JUDGE DONALD W. LEMONS
                                                MARCH 23, 1999
SHIRLEY A. HACKETT


               FROM THE CIRCUIT COURT OF HENRICO COUNTY
                        George F. Tidey, Judge

            Terrence M. Hackett, pro se.

            No brief or argument for appellee.


       Terrence M. Hackett contends that the trial court erred in

failing to calculate the presumptive amount of child support;

imputing income to him; failing to provide a written explanation

for a deviation from the child support guidelines; and ordering

him to pay child support arrearage.     We hold that the trial

court erred in failing to calculate the presumptive amount of

child support and failing to provide a written explanation in

the order or by reference for a deviation from the child support

guidelines and remand for the purposes of compliance with Code

§§ 20-108.1 and 20-108.2 and recalculation of arrearages, if

any.




       *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
                            BACKGROUND

     The parties, Terrence M. Hackett (husband) and Shirley A.

Hackett (wife), were divorced on September 24, 1997.   The

parties have one child born of the marriage, Erin Colleen

Hackett, born October 20, 1983, whose support is the subject of

this appeal.

     The parties were separated on December 1, 1995.   On January

29, 1996, a pendente lite hearing was held in the Circuit Court

of the County of Henrico.   Evidence introduced at the hearing

related only to the amount of temporary child support to be

awarded.   The wife testified that the husband "was terminated

from his job because he used drugs at work and he was placed on

disability and lost his nursing RN license and anesthesia

license from the State Board of Nursing."   The husband testified

that he was currently unemployed and that the disability

payments he had been receiving from his insurance company

terminated on December 23, 1995.   The husband also introduced

evidence relating to his employment search both in and outside

of the Richmond area.

     In the order for pendente lite relief, the court found that

the husband was voluntarily unemployed.   The court imputed

income to him in the amount of $3,500 per month, and ordered the

husband to pay child support of $464.73 per month.   The husband

noted his objection to the order, asserting that although he had



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been unemployed for two years prior to the date of the hearing

and had been receiving disability payments, the payments had

terminated.      The husband also stated that he had been actively

seeking employment and that income had been improperly imputed

to him.

        On January 1, 1997, the husband became a member of the

full-time faculty at Commonwealth College, with an annual salary

of $22,500.      On May 11, 1997, the husband sought a reduction in

his child support obligation.      This motion was heard on May 19,

1997.       By letter dated May 20, 1997, the court imputed income to

the husband in the amount of $13,500 per year stating, "a

realistic income for Mr. Hackett is $36,000 annually." 1     The

court ordered the wife’s counsel to calculate child support

payments based on a gross monthly income of $3,000 per month for

the husband and $3,833 per month for the wife, with an effective

date of July 1, 1997.

        On July 3, 1997, the husband filed a pro se "Motion to

Rehear, Reconsider, and Reverse its Order of May 20, 1997."        On

September 9, 1997, the wife filed a motion to "Establish

Arrearage and for Presentation of Final Decree of Divorce and a

Payroll Deduction Order."



        1
      This new figure was $7,000 less per annum than the figure
utilized by the court one year earlier.




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     On September 22, 1997, a third hearing was held.    The

husband presented evidence that he alleged showed a material

change in circumstances.   The husband stated that he suffered

from a drug dependency and that treatment for his illness had

resulted in the loss of his professional nursing license.

     On September 24, 1997, the final decree of divorce was

entered.   Pursuant to its order, the court found that the

husband was voluntarily underemployed and that he had the

ability to earn $3,000 per month.   The husband was earning

$1,875 gross per month; consequently the court imputed $1,125

per month to him.   The husband was ordered to pay child support

in the amount of $300 per month.    The court also found that as

of September 22, 1997, the husband was in arrears in the payment

of previously ordered pendente lite child support in the amount

of $2,711.   The court ordered that the husband pay an additional

$100 per month until the arrearage was satisfied.

     On appeal, the husband argues that the trial court erred in

failing to calculate the presumptive amount of child support

according to the statutory guidelines.    The husband also argues

that the court erred in failing to provide written findings in

the order or incorporated by reference that would rebut the

presumptive award under the guidelines.   The husband contends

that because his income was involuntarily reduced due to his

addiction and loss of his professional nursing license, the



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court abused its discretion in imputing income to him.    Finally,

the husband maintains that the court improperly ordered him to

pay arrearages.

                    I.    STATUTORY GUIDELINES

     In determining the amount of child support, a trial court

must first apply the child support guidelines to determine the

presumptively correct amount of child support.     See Farley v.

Liskey, 12 Va. App. 1, 401 S.E.2d 897 (1991).

          [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
          amount must be supported by written findings
          which state why the application of the
          guidelines in that particular case would be
          unjust or inappropriate.

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

896 (1991); Code § 20-108.1(B) ("[i]n order to rebut the

presumption, the court shall make written findings in the order,

which findings may be incorporated by reference, that the

application of such guidelines would be unjust or inappropriate

in a particular case").   A trial court's failure to provide

sufficient explanation for a deviation from the presumptive

amount of the guidelines is error.     See Pharo v. Pharo, 19 Va.

App. 236, 450 S.E.2d 183 (1994).

     Income may be imputed to an obligor "who is voluntarily

unemployed or under-employed . . . ."    Code § 20-108.1(B)(3).     A



                               - 5 -
parent's incarceration may constitute voluntary unemployment.

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

Termination from employment that was due to that

parent/employee's larceny from his employer may similarly be

considered voluntary unemployment. See Edwards v. Lowry, 232 Va.

110, 348 S.E.2d 259 (1986).   An obligor/parent seeking a

reduction in the amount of his or her child support obligation

"must . . . make a full and clear disclosure about his ability

to pay, and he must show his claimed inability to pay is not due

to his own voluntary act or because of his neglect."   Antonelli

v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991)

(citations omitted).

     By letter dated May 20, 1997, the court stated that it

"fe[lt] that a realistic income for . . . [the husband] is

$36,000 annually.   This takes into account his present mental

and physical condition, his past ability to earn, and what the

Court feels he can realistically earn in the present market."

The court ordered the wife’s counsel to recalculate the support

payments based upon "$3,000 for Mr. Hackett and $3,833 for Mrs.

Hackett."

     At the hearing on September 22, 1997, the husband presented

evidence that he alleged showed a material change in his

circumstances, including his drug dependency and subsequent

treatment that resulted in the loss of his professional nursing



                               - 6 -
license.   In the final divorce decree entered on September 24,

1997, the court found that the husband was "voluntarily

underemployed" with an earning capacity of "$3,000 per month."

The court ordered the husband to pay child support of $300 per

month.   The court stated that this amount was "in accordance

with the provisions of §§ 20-108.1 and 20-108.2 of the Code of

Virginia and the child support guidelines worksheet attached

hereto."   Although we recognize the efforts made by the husband

to overcome his addiction and his success in having his license

to practice nursing restored, because there is no evidence that

his addiction resulted from a medically prescribed course of

treatment or some other non-voluntary cause, the trial court’s

finding that his unemployment was "voluntary" was not error.

     However, the trial court failed to determine the

presumptively correct amount of child support and did not make

written findings in the order or incorporated by reference to

support its deviation from the guidelines.   Although in its

final decree of divorce the court referred to "child support

guidelines worksheet attached hereto" as the basis for its

award, the only child support guidelines worksheet contained in

the record is that used to calculate the pendente lite award.

From the record of the case it is clear that the information in

that guidelines worksheet was outdated and could not have formed




                               - 7 -
the basis of the award in the final decree.   In Hiner v. Hadeed,

15 Va. App. 575, 581-82, 425 S.E.2d 811, 815 (1993), we said,

          [o]nly if trial judges follow the statutory
          requirements will Virginia child support
          awards conform to the federal and state
          legislative mandates designed to create
          uniformity in support awards between parents
          and children similarly situated. Trial
          judges must make the requisite specific
          written findings, not solely for the
          purposes of appellate review, but, more
          important, to enable trial judges in future
          hearings to decide whether and how to
          increase, decrease, or terminate support.
          Only by having specific written findings
          will trial judges in subsequent proceedings
          be able to make informed decisions on how a
          change in circumstances may justify
          modification or may justify continued
          deviation from the guidelines.

     We reverse and remand this case to the trial court for

compliance with Code §§ 20-108.1 and 20-108.2.

                         II.   ARREARAGES

     The husband argues that the trial court erred in finding

that he was in arrears in his child support payments.    Because

the arrearages calculated by the court in its final divorce

decree as of September 22, 1997 are based upon the trial court's

calculation of the husband's monthly child support obligation,

we remand the case to the trial court to determine if any

arrearages are owed after it has complied with Code §§ 20-108.1

and 20-108.2.




                               - 8 -
                         III.   CONCLUSION

     Based upon the foregoing, we affirm the trial court's

finding that the husband’s termination from his employment was

voluntary.   We hold that the trial court erred in failing to

calculate the presumptive amount of child support and in failing

to provide written findings in the order or incorporate written

findings by reference for a deviation from the child support

guidelines, and we reverse and remand with directions to comply

with Code §§ 20-108.1 and 20-108.2 and determination of

arrearages if any.

                                              Affirmed in part,
                                              reversed and
                                              remanded in part.




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