                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia


TALMADGE D. BAXTER, JR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 2215-98-1                   JUDGE RICHARD S. BRAY
                                               AUGUST 17, 1999
SANDRA PAYNE BAXTER


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Robert P. Frank, Judge

           Breckenridge Ingles (Martin, Ingles & Ingles,
           Ltd., on brief), for appellant.

           Paul H. Wilson (Wilson & Wilson, P.C., on
           brief), for appellee.


     Talmadge D. Baxter (husband) appeals the decree of the

trial court awarding him child support from Sandra Payne Baxter

(wife), complaining that the court erroneously failed to order

support retroactive to August 5, 1997, and deviated from the

statutory guidelines.     Finding no error, we affirm the trial

court.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

     Husband and wife were married September 6, 1991, and a

child was born to the union on June 17, 1992.     The parties

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
separated on February 10, 1995, and wife filed a bill of

complaint shortly thereafter, followed by an answer and

cross-bill by husband, each praying, inter alia, for divorce and

custody and support of the infant child.   A pendente lite order

entered by the trial court on October 5, 1995, “jointly vested

[custody] with the parties . . . on an intervening two-week

basis,” but did not address the issue of continuing child

support.    On August 5, 1997, the court revisited the custody

issue and, by decree entered August 18, 1997, ordered temporary

custody to husband, effective August 12, 1997, expressly

reserving “any ruling on . . . child support until further

hearing.”

     A “Statement of Facts, Testimony and Other Incidents of

Trial,” dated October 26, 1998, prepared and presented by

husband, was certified by the court on November 13, 1998.    The

statement recites that, following the August, 1997, proceeding,

            [t]he case was next heard December 3, 1997
            with regard to the issue of child support.
            At that time, Complainant did not appear.
            Her attorney advised the Court that she was
            not working because of a back injury, and
            that it was not known if she would be able
            to return to work. Based upon that
            representation, the Court ordered
            Complainant to pay the minimum amount of
            child support, $65.00 per month beginning
            January 1, 1998.

The statement does not address circumstances between the August

and December hearings, and no provision for retroactive child

support for the period was included in the order.

                                - 2 -
     On April 1, 1998, husband provided notice to wife that he

would appear before the court on June 3, 1998, and “move . . .

for entry of an Order requiring [her] to pay child support for

the support, maintenance and education” of the infant.    At the

scheduled hearing, the court “received additional evidence

related to child support,” and, upon subsequent “documentation”

of wife’s expenses, entered the disputed decree on September 1,

1998, ordering her to pay husband “the sum of $75.00 per week,”

a “departure from the statutory guidelines,” effective January

1, 1998.   The court expressly found the deviation “appropriate,”

noting that wife “has a child not born of the marriage of the

parties who has certain medical needs” and related expenses.

     Husband appeals, arguing that the trial court erroneously

failed to award child support retroactive to August 5, 1997, the

date of the hearing which resulted in the award of custody to

him, and departed from the child support guidelines without

sufficient justification or explanation.

     In “determining child support . . . the court shall

consider all evidence presented relevant to any issues joined in

[the] proceeding” and “relevant to each individual case,” guided

by those factors specified in Code § 20-108.1 and subject to the

guidelines of Code § 20-108.2.    Code § 20-108.1.   “Any child

support award must be based on circumstances existing at the

time the award is made.”   Sargent v. Sargent, 20 Va. App. 694,

703, 460 S.E.2d 596, 600 (1995) (citation omitted).

                                 - 3 -
     “In reviewing these [issues], we are guided by the

principle that decisions concerning child support rest within

the sound discretion of the trial court and will not be reversed

on appeal unless plainly wrong or unsupported by the evidence.”

Barnhill v. Brooks, 15 Va. App. 696, 699, 427 S.E.2d 209, 211

(1993) (citation omitted).   “The trial court’s judgment is

presumed to be correct, and ‘the burden is on the appellant to

present to us a sufficient record from which we can determine

whether the lower court has erred.’”   Twardy v. Twardy, 14 Va.

App. 651, 658, 419 S.E.2d 848, 852 (1992) (citations omitted).

     The evidence at the June 3, 1998 hearing disclosed that

wife was then receiving gross monthly income of $2,762.   In

contrast, she was disabled at the time of the December 3, 1997

hearing, prompting the court to order “mimi[mal]” child support

of $65 per month, beginning January 1, 1998.   Accordingly, the

court substantially increased wife’s support obligation in the

subject decree, properly responding to contemporary

circumstances, retroactive to January 1, 1998.   However, the

record is silent for the months August through December, 1997,

the period embraced by husband’s retroactivity claim.   We are,

therefore, unable to properly consider on review the factors

relevant to a proper support order for such period, and the

disputed decree remains presumptively correct.




                               - 4 -
                  DEVIATION FROM PRESUMPTIVE AMOUNT

     “The starting point . . . for determining the child support

obligation of a party, whether initially or at a modification

hearing, is to compute the presumptive amount using the schedule

found in Code § 20-108.2(B).”     Watkinson v. Henley, 13 Va. App.

151, 158, 409 S.E.2d 470, 473 (1991) (citation omitted); see

Code §§ 20-108.1, -108.2.    However, “a trial court need not

award child support in the statutorily presumptive amount if a

deviation from such an amount is justified.”      Scott v. Scott, 12

Va. App. 1245, 1249, 408 S.E.2d 579, 582 (1991); see Code

§§ 20-108.1, -108.2.    “Actual monetary support for other

children, other family members or former family members” is a

factor recognized by statute that may support deviation.     Code

§ 20-108.1(B)(1).

     “Deviations from the presumptive 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.”     Head v. Head, 24 Va. App. 166, 179, 480 S.E.2d

780, 787 (1997) (citations and internal quotations omitted); see

Code §§ 20-108.1, -108.2; Pharo v. Pharo, 19 Va. App. 236,

238-39, 450 S.E.2d 183, 184 (1994).      However, “‘[a] trial court

may not avoid the statutory mandate by simply concluding that

circumstances’ warrant a guideline departure.”      Pharo, 19 Va.

App. at 239-40, 450 S.E.2d at 184 (citation omitted).



                                 - 5 -
     Relying on Pharo, husband contends that the instant decree

was conclusory and without sufficient detail to satisfy the

statutory prerequisites to a guideline departure. 1    In Pharo, we

reversed a deviation from the presumptive amount because “[t]he

statutory considerations which supported the deviation, and

their effect on the court’s decision [were] neither identified

nor explained.”   19 Va. App. at 240, 450 S.E.2d at 185.    Here,

however, the court recited in the decree that departure from the

guidelines was “appropriate . . . because [wife] has a child not

born of the marriage of the parties who has certain medical

needs . . . and [wife] spends $98.00 per week on a mentor for

that child,” a factor in justification of deviation specifically

enumerated in Code § 20-108.1(B)(1) and supported by the record.

     Accordingly, we affirm the decree.

                                                      Affirmed.




     1
       Husband also relies on Farley v. Liskey, 12 Va. App. 1,
401 S.E.2d 897 (1991). In Farley, we reversed the trial court
because it failed to determine the presumptive support
obligation prior to the deviation. Id. at 4, 401 S.E.2d at 899.
Further, evidence of the “actual monetary support” to other
children was limited to a “statement that [wife] spent $45 a
month for clothing.” Id. Here, “[d]ocumentation from the
mentor indicated that his hourly charge is $14.00 per hour and
that he was with the child 6-8 hours per week.”

                               - 6 -
