                                 COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges McClanahan and Haley
Argued at Salem, Virginia


TODD ANDREW GERL
                                                        MEMORANDUM OPINION* BY
v.     Record No. 0121-05-3                         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                             SEPTEMBER 20, 2005
ROSEANNE NMN DISO GERL


                   FROM THE CIRCUIT COURT OF ROANOKE COUNTY
                               James R. Swanson, Judge

               Frank W. Rogers, III (G. Marshall Mundy; Mundy, Rogers &
               Associates, LLP, on brief), for appellant.

               No brief or argument for appellee.


       Todd Andrew Gerl (husband) appeals from a December 9, 2004 final decree of divorce

granting Roseanne NMN Diso Gerl (wife) a divorce on the ground that the parties had lived

separate and apart for more than one year and ordering him to pay $1,464.53 per month in child

support and 80% of all unreimbursed medical expenses of the children. The sole issue raised in

this appeal is whether the trial court erred in deviating from the provisions of Code § 20-108.2 by

requiring him to pay 80% of all unreimbursed medical expenses of the children rather than his

proportionate share of the unreimbursed medical expenses in excess of $250 per child per

calendar year. For the reasons that follow, we reverse and remand to the trial court for further

proceedings consistent with this opinion.

       In accordance with familiar principles, we view the evidence in the light most favorable

to the prevailing party below. See Brown v. Brown, 30 Va. App. 532, 534, 518 S.E.2d 336, 337



       * Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(1999). “As long as evidence in the record supports the trial court’s ruling and the trial court has

not abused its discretion, its ruling must be affirmed on appeal.” Id. at 538, 518 S.E.2d at 338.

       The uncontroverted evidence established that the husband’s income was $8,884 per

month and the wife’s income was $400 per month. The trial court ordered that husband pay

$1,464.53, the child support guideline amount. Additionally, husband was ordered to pay 80%

of all unreimbursed medical expenses for the four minor children. The trial court did not give

any reasons for deviating from the requirements of Code § 20-108.2(D) in its award of

unreimbursed medical and dental expenses.

       Code § 20-108.2(A), in effect July 1, 2004 to July 1, 2005, provided:

               There shall be a rebuttable presumption in any judicial or
               administrative proceeding for child support under this title or Title
               16.1 or 63.2, including cases involving split custody or shared
               custody, that the amount of the award which would result from the
               application of the guidelines set forth in this section is the correct
               amount of child support to be awarded. In order to rebut the
               presumption, the court shall make written findings in the order as
               set out in § 20-108.1, which findings may be incorporated by
               reference, that the application of the guidelines would be unjust or
               inappropriate in a particular case as determined by relevant
               evidence pertaining to the factors set out in §§ 20-107.2 and
               20-108.1. The Department of Social Services shall set child
               support at the amount resulting from computations using the
               guidelines set out in this section pursuant to the authority granted
               to it in Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2 and subject to
               the provisions of § 63.2-1918.

       Code § 20-108.2(D), in effect July 1, 2004 to July 1, 2005, provided in pertinent part:

               Except for good cause shown or the agreement of the parties, in
               addition to any other child support obligations established pursuant
               to this section, any child support order shall provide that the
               parents pay in proportion to their gross incomes, as used for
               calculating the monthly support obligation, any reasonable and
               necessary unreimbursed medical or dental expenses that are in
               excess of $250 for any calendar year for each child who is the
               subject of the obligation. The method of payment of those
               expenses shall be contained in the support order. Each parent shall
               pay his respective share of expenses as those expenses are
               incurred. Any amount paid under this subsection shall not be
                                                -2-
               adjusted by, nor added to, the child support calculated in
               accordance with subsection G. For the purposes of this section,
               medical or dental expenses shall include but not be limited to
               eyeglasses, prescription medication, prosthetics, orthodontics, and
               mental health or developmental disabilities services, including but
               not limited to services provided by a social worker, psychologist,
               psychiatrist, counselor, or therapist.

(Emphasis added.)

       We agree with husband that the legislature clearly stated that the trial court “shall

provide” that the parents pay proportionate to their income any reasonable and necessary

unreimbursed medical or dental expenses that are “in excess of $250” per child per calendar

year. See Code § 20-108.2(D). In order for the trial court to deviate from the procedure outlined

above, it was required to make findings consistent with the dictates of Code §§ 20-108.1 and

20-108.2. Therefore, we reverse and remand to the trial court to modify its order and require

proportional payment of only those medical and dental bills in excess of $250 per child per year

or to make additional findings that would allow a deviation therefrom.1

                                                                           Reversed and remanded.




       1
         We note that based upon the income figures used to calculate the guideline child
support obligation, husband’s proportional share is 96% and wife’s proportional share is 4%.
                                              -3-
