                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia


DEE EDWARD NEWLAND, JR.
                                              MEMORANDUM OPINION * BY
v.   Record No. 0907-01-4                      JUDGE G. STEVEN AGEE
                                                   MARCH 12, 2002
GEORGEEN M. NEWLAND


        FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                    Alfred D. Swersky, Judge

          Mary M. Benzinger (Raymond B. Benzinger;
          Benzinger & Benzinger, P.C., on briefs), for
          appellant.

          Yvonne DeBruyn Weight for appellee.


     Dee Edward Newland, Jr., (father), appeals the March 7,

2001 decree of the Alexandria Circuit Court modifying his child

support obligation as requested by Georgeen M. Newland (mother).

He contends the circuit court erred in entering a modified order

increasing his child support obligation.       For the following

reasons, we reverse the order and remand to the circuit court.

                            I.   BACKGROUND

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, only those facts necessary to a disposition of this

appeal are recited.

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     The parties were divorced in 1996, and a child support

order was then entered directing father to pay monthly child

support of $1,783.   At that time, mother had sole custody of

their two minor children, with visitation to father.        Prior to

separation, neither child attended a private school.        Included

in the $1,783 monthly amount was $216 per month attributable to

the oldest child's attendance at St. Rita's, a parochial school.

The St. Rita's tuition was apparently not reflected as a child

care expense for guideline purposes as mother had specific child

care costs for the minor children.      The circuit court

specifically ruled as follows regarding the $1,783 monthly

amount before entry of the 1996 decree:

          [I]t is not the Court's intent that any
          increase in tuition would cause any increase
          in child support.

                 *     *    *    *       *    *    *

          [H]e pays the amount, she elects to put them
          in the school, she bears that burden.

                 *     *    *    *       *    *    *

          I'm not requiring him to pay that tuition.
          It's up to her to do whatever she is going
          to do.

     Father appealed the 1996 decree, including the support

amount to this Court, which affirmed the circuit court's award.

The issues of deviating from the child support guidelines by

including private school tuition as a guideline child care cost,

failing to calculate the presumptive guideline amount and



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failing to make written findings to support the deviation from

the guidelines were not issues raised on that appeal.

     After the 1996 decree, mother enrolled both children in

Bishop Ireton, a private, parochial high school without father's

consent. 1   Subsequently, while mother retained primary physical

custody, father was awarded 122.5 days of custodial time by a

November 10, 1999 order.    In April, 2000, mother filed a

petition in the circuit court requesting the 1996 child support

order be modified to reflect, inter alia, (1) material changes

in the parties' incomes, (2) the elimination of child care

expenses, and (3) an increase in private school tuition as both

children were now attending Bishop Ireton.    Father filed a cross

motion for a reduction in child support alleging a material

change in circumstances due to the parties' shared custody and

an increase in the parties' incomes.

     Although child care costs for the children had ceased,

mother submitted into evidence a guidelines worksheet which

included $1,017 under the "work related child care costs of

Mother" section.    This amount reflected the monthly tuition

payment for the two children to attend Bishop Ireton.




     1
       Attendance at Bishop Ireton by both children was the
educational choice made by mother pursuant to an earlier order
awarding all educational decisions to her.


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     After a hearing ore tenus, the circuit court accepted

mother's calculations and determined the earlier child support

award should be modified.

             The Court is going to accept the shared
             custody guideline worksheet of [mother].
             I'm not dealing here with the issue, and it
             has not been raised in the documents in the
             proceedings, as to whether or not it's in
             the best interest of these children that
             they be in private school.

             Therefore, I have to accept that the private
             school and the tuition is an economic fact
             of life. This is just an expense that these
             parties have, and the question is how should
             it then best be shared.

             The cases that I've looked at all seem to
             say the best way to do this is to add it
             into the child support guidelines. And
             . . . that's what I'm going to do.

     On March 7, 2001, the circuit court issued its order to

this effect stating "the private school tuition should be

treated as an expense of the parties and included in the child

support calculation, and should be added to the child support

guidelines, notwithstanding that father has never consented to

the children attending private school." 2   This order resulted in

father's monthly child support obligation increasing from $1,783

to $2,105.




     2
       The circuit court attached to its decree mother's child
support guidelines worksheet.


                                 - 4 -
                            II.   ANALYSIS

       On appeal, father contends the circuit court erred in

applying the statutory provisions of Code § 20-108.1.     Upon

review, we find the procedure of the circuit court to calculate

child support was erroneous and, therefore, the decree as to

child support should be reversed.

       Pursuant to Code § 20-108, a circuit court retains

"continuing jurisdiction after a final decree of divorce has

been entered, to modify its decree with respect to the . . .

maintenance of minor children."      Edwards v. Lowry, 232 Va. 110,

112, 348 S.E.2d 259, 261 (1986).     In a hearing on a petition for

modification of child support, the burden is on the moving party

to prove a material change in circumstances that warrants a

modification of support.    See, e.g., Yohay v. Ryan, 4 Va. App.

559, 566, 359 S.E.2d 320, 324 (1987).     "The [circuit] court's

decision, when based upon credibility determinations made during

an ore tenus hearing, is owed great weight and will not be

disturbed unless plainly wrong or without evidence to support

it."    Douglas v. Hammett, 28 Va. App. 517, 525, 507 S.E.2d 98,

102 (1998).

       After finding a change in material circumstances, the

starting point for determining the child support obligation of a

party at a modification hearing is to compute the presumptive

amount using the guidelines and schedule found in the Code.        See

Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473

                                  - 5 -
(1991).    Here, the circuit court failed to properly apply the

statutory provisions.

     The circuit court calculated the child support amount,

under the guise of using the guidelines, by including the

children's private, parochial school tuition as a child care

expense.   This was error because private school tuition is not a

child care expense under Code § 20-108.2(F) or Code

§ 20-108.1(B)(6).   "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).    As mother

admitted she was "no longer incurring day care costs," the

circuit court should have calculated the presumptive child

support amount under the statutory guidelines excluding any

amount under "work related child care costs of Mother" as no

evidence appears in the record of any such expenses.    The clear

and unequivocal statutory mandate of Code § 20-108.1(B) requires

this presumptive "amount of support that would have been

required under the guidelines" be stated in writing by the

circuit court, which it failed to do.

     If upon the evidence, the circuit court determines that the

presumptive amount is unjust or inappropriate, the statute

plainly requires written findings by the circuit court in its




                                - 6 -
decree delineating why that is so. 3    Only after such a written

finding is made can the presumptive guideline amount be altered

to include other amounts such as private school educational

expenses.   The circuit court failed to make the statutorily

required finding as to why the presumptive guidelines amount

would be unjust or inappropriate.

                 [A]fter determining the presumptive
            amount of support according to the schedule,
            the [circuit] 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).   Furthermore, "a conclusory written statement of

[the circuit court's] findings" is not sufficient to justify

deviating from the presumptive guideline amount.     Id.   If the

circuit court fails to provide sufficient explanation for any

deviation it decides to make, its actions will be deemed error.

See Pharo v. Pharo, 19 Va. App. 236, 450 S.E.2d 183 (1994).

            Only if [circuit courts] 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

     3
       Code § 20-108.1(B) ("[i]n order to rebut the presumption,
the [circuit 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").


                                - 7 -
             parents and children similarly situated.
             [Circuit courts] must make the requisite
             specific written findings, not solely for
             the purposes of appellate review, but, more
             important, to enable . . . judges in future
             hearings to decide whether and how to
             increase, decrease, or terminate support.
             Only by having specific written findings
             will . . . 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.

Hiner v. Hadeed, 15 Va. App. 575, 581-82, 425 S.E.2d 811, 815

(1993) (internal citations omitted).

     Accordingly, we reverse the decree of March 7, 2001, and

remand this case to the circuit court for the proper calculation

of child support in accord with the principles expressed in this

opinion. 4

                                              Reversed and remanded.




     4
       In the absence of the findings required by Code
§ 20-108.1(B) as to the presumptive child support amount, or the
justification (if any) for any deviation from that amount, we do
not address any issues raised by the parties as to the factors
enunciated in Solomond v. Ball, 22 Va. App. 385, 470 S.E.2d 157
(1996), as it does not appear those issues have been addressed
in or by the circuit court.


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