                        COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Frank


ROBERT WILLIAM LYFORD HUTCHINS
                                            MEMORANDUM OPINION *
v.   Record No. Record No. 2674-98-4            PER CURIAM
                                               JUNE 22, 1999
ROSANA LILLY CARRILLO


           FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                      Richard B. Potter, Judge

           (Robert William Lyford Hutchins, pro se, on
           brief).

           No brief for appellee.


     Robert William Lyford Hutchins (father) appeals the decision

of the circuit court granting his motion to modify the child

support paid to Rosana L. Carrillo (mother).    In a previous

appeal, this Court reversed the order of the circuit court denying

Hutchins' appeal for failure to timely post the appeal bond and

remanded this matter to the circuit court "with instructions to

proceed as if father timely satisfied the appeal bond requirement

of Code § 16.1-296(H)."    Hutchins v. Carrillo, 27 Va. App. 595,

614, 500 S.E.2d 277, 286 (1998).    In the current appeal, father

contends that the trial court erred by (1) failing to proceed as

if father timely satisfied the appeal bond requirement of the

earlier appeal; (2) failing to backdate the final decree to the


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
time of the July 17, 1997 appeal; (3) improperly adjusting

father's child support obligation for monetary support provided

for other children; (4) failing to adjust father's child support

obligation for tool bills generated for the production of income;

(5) finding orthodontic care constituted an extraordinary medical

or dental expense under Code § 20-108.1(B)(8); (6) failing to find

that portions of the child support that deviated from the

presumptive amount paid to date were earmarked for specific

expenses and continuing those payments; and (7) failing to find

that ordering the non-custodial parent to pay for orthodontic

expenses was unconstitutional and a violation of equal protection.

Upon reviewing the record and opening brief, we conclude that this

appeal is without merit.    Accordingly, we summarily affirm the

decision of the trial court.    See Rule 5A:27.

            Effective Date for Modified Child Support

     In his first two issues, father contends that the trial court

failed to implement this Court's mandate on remand when the trial

court ordered the modified child support to begin as of October 1,

1998, rather than retroactive to July 17, 1997, the date the

circuit court denied father's previous appeal.     We find no error.

     Code § 20-108 provides "[n]o support order may be

retroactively modified, but 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."    (Emphasis added.)    The trial court was

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authorized, but not required, to make the modified support order

effective as of a date no earlier than when mother received notice

of the pending petition.    However, the effective date was a matter

left to the discretion of the trial court.    The trial court's

decision to make the modified child support effective as of the

start of the month following entry of its final decree was not an

abuse of discretion.    Therefore, we find no error.

                    Determination of Child Support

     Father also challenges the circuit court's decisions

concerning modification of the presumptive amount of child

support.   Father contends that the trial court failed to

adequately consider his support for the child of his new

marriage and the expense he incurred to purchase tools needed in

his trade.     See Code § 20-108.1(B)(1) and (5).

     As the party seeking to modify support, father was required

to prove a material change in circumstances and that the change

justified altering the amount of support.    See Yohay v. Ryan, 4

Va. App. 559, 566, 359 S.E.2d 320, 324 (1987).

             A material change in circumstances, standing
             alone, does not provide a basis for the
             trial court to modify its support decree. A
             modification is appropriate only after the
             court has considered the material change in
             circumstances in relation to the factors set
             forth in Code § 20-108, namely, the present
             circumstances of both parties and the
             benefit of the children. Thus, in a
             petition for reduction of support, the trial
             court must assess whether the requested
             reduction, based on a material change in
             circumstances, is justified in light of the

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             overall circumstances of both parties and
             the impact on the needs of the children.

Id.   In addition, "after 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."    Richardson v. Richardson, 12 Va. App. 18, 21, 401

S.E.2d 894, 896 (1991) (emphasis in original deleted; emphasis

added).    Code § 20-108.1(B)(1) authorizes a trial court to deviate

from the amount of child support computed pursuant to the Code

§ 20-108.2 statutory guidelines when it finds application of the

guidelines "would be unjust or inappropriate in a particular

case."    Code § 20-108.1(B).   The deviation "shall be determined by

relevant evidence" pertaining to certain factors set out in the

statute.    "If the applicability of the factors is supported by the

evidence and the trial judge has not otherwise abused his or her

discretion, the deviation from the presumptive support obligation

will be upheld on appeal."      Richardson, 12 Va. App. at 21, 401

S.E.2d at 896.

      Father contends that the trial court failed to adequately

consider the monetary support he pays for the daughter of his new

marriage.    Evidence relating to the "actual monetary support for

other children" is a factor that the trial court may consider as

warranting a deviation from the child support guidelines.     Whether

to grant any deviation is a matter left to the discretion of the

trial court.    The trial court granted father a $200 reduction in


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gross monthly income as a deviation from the statutory guidelines

based upon his "actual monetary support for other children."    See

Code § 20-108.1(B)(1).   The evidence supports the trial court's

decision, and we find no abuse of discretion.

     Father also contends that the trial court failed to

consider the costs he incurs to buy tools used in his work as an

auto mechanic.   Among the factors which the trial court may

consider when deviating from the child support guidelines is

"[d]ebts incurred for production of income."    See Code

§ 20-108.1(B)(5).   Father testified that he pays an average of

$400 a month to buy tools.    He produced bills for some tool

purchases and tax forms listing unreimbursed business expenses.

We cannot say that the trial court erred by refusing to find

that father's work-related expense of purchasing tools warranted

further reduction in father's gross income.

                         Orthodontic Expenses

     Father also raises several issues related to his payment of

orthodontic expenses for the parties' children.    Father contends

that, because there was no evidence that the orthodontia was

medically necessary, the trial court erred by classifying the

orthodontic expenses as extraordinary medical or dental expenses

for purposes of Code § 20-108.1(B)(8) or § 20-108.2(D).    He

noted that the orthodontic treatment of the parties' children

was halted for approximately fifteen months, although he

continued to make the payments.

                                - 5 -
     Mother testified that father urged her to begin orthodontic

treatment for the older child.    She also testified that she used

father's payments to pay approximately $1,500 as deposits on the

orthodontia.   She further testified that the anticipated

additional expenses for the parties' two sons were $2,838 and

$1,866, respectively, and that she continued to incur $267 in

monthly orthodontic costs.    Both parties testified that father's

insurance did not cover all orthodontic expenses.

     Code § 20-108.2(D) authorizes the trial court to add to the

child support calculation "extraordinary medical and dental

expenses," which are defined in the statute as "uninsured

expenses in excess of $100 for a single illness or condition

. . . ."   Based upon mother's testimony that she paid $267 each

month for uninsured orthodontic expenses, the trial court added

that amount to the total amount of child support.   The trial

court rejected father's argument that orthodontic expenses were

not medically necessary, noting that "orthodontics is a

necessity for a child’s well-being, for a child’s self-esteem,

if not for the medical necessity of being able to eat properly

or growing up in the future with a set of teeth that can work

properly."   Because the orthodontic expenses satisfied the

statutory definition, we find no error in the trial court's

classification of the expenses as extraordinary for purposes of

inclusion in child support.



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     The trial court calculated current child support based upon

the current payments for orthodontics.    While father contended

that previously paid funds intended to pay for orthodontia were

used by mother for living expenses, we find no error in the

trial court's decision to incorporate into the child support

calculation proven current expenses.

                     Constitutional Challenges

     Finally, father contends that the court's order requiring

him, a non-custodial unmarried parent, to pay for orthodontic

expenses violated his right to equal protection because similarly

situated married parents could not be ordered to pay for

orthodontia.   Solely for purposes of this analysis, we will

assume, though not decide, father’s underlying premise is correct.

See generally Morris v. Commonwealth ex rel. Morris, 13 Va. App.

77, 83, 408 S.E.2d 588, 592 (1991).

     "It is firmly established that all actions of the General

Assembly are presumed to be constitutional.    Therefore, the

party assailing the legislation has the burden of proving that

it is unconstitutional . . . ."     Etheridge v. Medical Center

Hospitals, 237 Va. 87, 94, 376 S.E.2d 525, 528 (1989) (citations

omitted).   Father identified two classes of similarly situated

parents that he alleged were treated differently, i.e., married

parents and unmarried parents.    While illegitimacy is a

classification which has been afforded higher scrutiny, see,

e.g., Pickett v. Brown, 462 U.S. 1 (1983), father has not

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demonstrated that the classification he challenges must satisfy

more than the rational basis test.      See Etheridge, 237 Va. at

103-04, 376 S.E.2d at 533-34.

     "The rational basis test is satisfied 'if the legislature

could have reasonably concluded that the challenged

classification would promote a legitimate state purpose.'"      Id.

at 104, 376 S.E.2d at 534.   "'Child support has long been

recognized as an obligation owed to the infant child . . . [which]

duty arises from principles of natural law.'"     Hur v. Department

of Soc. Servs., 13 Va. App. 54, 58, 409 S.E.2d 454, 457 (1991)

(citation omitted).   The legislature reasonably could have

concluded that legitimate state purposes were served by ensuring

that children whose parents were not married continued to

receive adequate financial support, including payments for

medical expenses incurred.   Therefore, father has failed to

demonstrate that the inclusion in the child support calculations

of expenses satisfying the definition of extraordinary medical

expenses violated his right to equal protection.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                            Affirmed.




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