                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia


WENDY COLLINS (ALEXANDER)

v.         Record No. 0168-95-2          MEMORANDUM OPINION * BY
                                       JUDGE ROSEMARIE ANNUNZIATA
CHARLES ALEXANDER, IV                        OCTOBER 24, 1995


            FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                      Paul M. Peatross, Judge

          Joan C. McKenna (Rae H. Ely; Rae H. Ely and
     Associates, on briefs), for appellant.

           John K. Taggart, III (Patricia D. McGraw;
           Tremblay & Smith, on brief), for appellee.



     This matter arises as a result of this Court's reversal and

remand in the case of Alexander v. Alexander, 12 Va. App. 691,

406 S.E.2d 666 (1991).   The original case was initiated by Wendy

Collins (Alexander) (mother) who, in April 1989, filed a Motion

to Show Cause for Failure to Pay Child Support as ordered in the

final decree of divorce entered on May 2, 1986.    Charles

Alexander, IV (father) in turn filed a Motion to Terminate

Support.   On remand for further proceedings on the issue of child

support, the trial court was to determine the presumptive amount

of support and enter written findings explaining any deviation

made from the guidelines amount.   Accordingly, a hearing ore
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.




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tenus on the issue of the 1989 child support obligation was held

in August 1994.   By final order entered on September 12, 1994,

the court modified support, retroactive to July 1, 1989.    Under

that order, neither party was obligated to pay child support to

the other.   The mother subsequently filed a Motion to Rehear

alleging that the father had fraudulently misrepresented his

income for 1989; the motion was denied.   Finding no error in the

proceedings, the trial court's decision as reflected in its order

of September 12, 1994 is affirmed.
     The mother contends that the trial court erred in ordering a

modification of support retroactive to July 1, 1989.   This claim

is without merit.   The effect of this Court's reversal and remand

was to restore the parties to their original position.     Nassif v.

The Board of Supervisors, 231 Va. 472, 480, 345 S.E.2d 520, 525

(1986).   Under Code § 20-108, support "may be modified with

respect to any period during which there is a pending petition

for modification, but only from the date that notice of such

petition has been given to the responding party."   "[W]hether to

make modification of a support order effective during a period

when a petition is pending is entirely within the discretion of

the trial court."   O'Brien v. Rose, 14 Va. App. 960, 965, 420

S.E.2d 246, 249 (1992).

     The record reveals that the husband filed his motion to

terminate child support on June 6, 1989 and served a copy on the

mother.   She was provided with notice of the father's motion to




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terminate support as of July 1, 1989.    Thus, the trial court did

not abuse its discretion in deciding to terminate support as of

the filing date of the father's petition.    Id.

     Moreover, the termination of support retroactive to July 1,

1989 is not barred by the doctrine of laches as the mother

asserts.   "'Laches is such neglect or omission to do what one

should do as warrants the presumption that he has abandoned his

claim, and declines to assert his right.'"    Pittman v. Pittman,

208 Va. 476, 479, 158 S.E.2d 746, 749 (1968) (citation omitted).

The father was under no obligation to reinstate the case on

remand within a specified time period.   Indeed, either party

could have initiated the proceeding.    Furthermore, the evidence

fails to show any material change which would justify the

application of the doctrine.   See Pretlow v. Pretlow, 177 Va.

535, 552, 14 S.E.2d 381, 387 (1941).

     The mother further assigns as grounds for reversal the

father's failure to produce evidence of his 1989 income to

support the trial court's determination of the presumptive amount

of support.   She contends that the court therefore erred in

denying her motion to strike and in entering an order terminating

support.   There is no merit in either position.   It is clear that

the father produced evidence at both the October 1989 and August

1994 hearings that his 1989 income was approximately $5,200 a

month.

     The mother next contends that the father's evidence of



                               - 3 -
income was fraudulent and that the trial court erred in refusing

to conduct an additional hearing based on these allegations.

"After a court has concluded an evidentiary hearing 'during which

each party had ample opportunity to present evidence, it [is]

within the court's discretion to refuse to take further evidence

on this subject.'    In order to demonstrate an entitlement to a

rehearing, a petitioner must show either an 'error on the face of

the record, or . . . some legal excuse for his failure to present

his full defense at or before the time of entry of the decree.'"

 Holmes v. Holmes, 7 Va. App. 472, 480, 375 S.E.2d 387, 392

(1988) (citations omitted).    Moreover, fraud must be established

"'not by doubtful and inconclusive evidence, but clearly and

conclusively.'"     Aviles v. Aviles, 14 Va. App. 360, 366, 416

S.E.2d 716, 719 (1992) (citation omitted).

     The record discloses that, while counsel for mother alleged

surprise at father's testimony concerning his income, she

cross-examined him using the 1989 income tax returns which she

had in her possession.    When the father hesitated to verify one

of the unsigned tax returns, counsel failed to produce her copy

of the certification of authenticity signed by father's

accountant in response.    Counsel also subpoenaed the father's

accountant as a witness for the August 1994 hearing, presumably

to testify to the father's income, but then released him without

calling him.   On these facts, we cannot find that the trial court

abused its discretion in refusing to conduct the requested



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hearing.

     The mother's last contention that the trial court failed to

justify its decision to deviate from the child support guidelines

and erroneously refused to enforce the parties' agreement as

incorporated into the divorce decree is likewise not supported in

the record.

     It is well established that while parties may contract to

provide child support in a manner other than that provided by the

statutory guidelines, the trial court must determine "whether the

agreed provisions for the child would better serve the interest

or 'equities' for the parents and children."     Watkinson v.

Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 474 (1991).       A

court cannot be precluded by the parents' agreement from

exercising its power to decree child support.     Kelley v. Kelley,

248 Va. 295, 298, 440 S.E.2d 55, 56 (1994).

     It is also clear that because "there exists a rebuttable

presumption that the amount of the award as determined by the

application of the statutory child support guidelines is the

correct amount . . . [i]n [a] . . . proceeding [to determine

child support] . . . a trial court must first determine the

presumptive amount of child support before considering any other

factors."     Alexander v. Alexander, 12 Va. App. 691, 695, 406

S.E.2d 666, 667 (1991).
          Whenever a child support award varies from
          the guidelines, Code § 20-108.2(A) requires
          the trial court to make written findings of
          fact "as determined by relevant evidence
          pertaining to the factors set out in



                                 - 5 -
            §§ 20-107.2 and 20-108.1" explaining why one
            or more of these factors would make it
            "unjust or inappropriate" to apply the
            guidelines to the case.


Richardson v. Richardson, 12 Va. App. 18, 21-22, 401 S.E.2d 894,

896 (1991).

     In accordance with these mandates and based upon the

parties' 1989 income, the trial court determined that the mother

was obligated under the guidelines to pay the father $242.83 a

month in child support.   The trial court found it appropriate to

deviate from the guidelines and gave specific reasons for its

decision.   He found that under the agreement the father paid

mother $1,000 a month as support so that she could maintain

housing and visit the children.    However, the court also found

that the mother did not use the support for those purposes.     The

court further found that, while the guidelines required the

mother to pay child support to the father for the last remaining

infant daughter, a deviation was justified to provide the mother

with funds to be used in her attempt to repair the relationship

with that child.   The trial court is not required by law to

simply adopt the parties' agreement to provide child support;

such an agreement is but one factor, among many, for the court to

consider in making its award.     See Richardson, 12 Va. App. at 20,

401 S.E.2d at 895.

     As the justification for deviating from the guidelines and

child support amount is clearly set forth in the trial court's

ruling, the statutory requirements of Code § 20-108.1(B) were



                                - 6 -
satisfied.

     In accordance with the reasons set forth by this Court, the

decision of the trial court is affirmed.

                                                        Affirmed.




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