Drew Tidwell v. Jennifer Late, 67 Va. App. 668

Background

Tidwell (father) and Late (mother) divorced in 2013; they share joint legal and physical custody of two children and used a shared-custody child support framework.
Father is a self-employed independent contractor in film production (income fluctuating: reported ~$48,500 in 2013, $40,000 in 2014, $42,000 in 2015/2016); mother is a salaried employee (~$66,837 in 2016).
Father filed a petition to modify child support in JDR court (June 2015); JDR ordered father to pay $800/month beginning Oct. 1, 2015; father appealed to circuit court.
At the June 2016 circuit hearing parties disputed: correct gross incomes to use (including whether to average father’s multi-year income), appropriate work-related child-care costs, and the number of custody days for father.
The circuit court found a material change in circumstances, used a four-year average for father’s income, accepted mother’s oral testimony that child-care costs were $849/month, used 110 custody days for father, and reduced support to $662/month effective July 1, 2016.
On appeal, the Court of Appeals affirmed in part, reversed in part, and remanded: it held the court erred by averaging father’s income before calculating the presumptive guideline amount but upheld findings on child-care costs, custody days used, retroactivity, and no due-process violation from not reading the pretrial brief.

Issues

Issue	Tidwell's Argument	Late's Argument	Held
Whether the trial court may average father’s income to compute guideline child support	Court should use father’s current income, not a multi-year average	Court may average fluctuating self-employment income to reflect earning capacity	Reversed: trial court must first compute presumptive support using current income, then decide (with findings) whether deviation (e.g., averaging) is justified under Code § 20-108.1(B)
Whether mother’s child-care cost figure (presented via demonstrative not admitted as exhibit) was admissible and sufficiently proven	Objected to demonstrative; argued mother’s cost evidence was not properly admitted and cross-examination was impaired	Mother testified to $849/month; court allowed oral presentation and cross-examination	Affirmed: court credited mother’s credible testimony and did not abuse discretion in including $849 in calculation
Whether father could litigate alleged unlawful denial of visitation within this modification proceeding	Father argued custody/denial of visitation reduced his custodial days and should be considered	Mother argued custody/visitation were not before the court in this child-support modification	Affirmed: court properly limited inquiry to number of days actually exercised; father could pursue custody/visitation remedies separately
Whether modified support should be retroactive to date notice of petition was served (Aug 2015)	Support should be retroactive to date mother received notice	Trial court exercised discretion to make modification effective at hearing date due to uncertainty about father’s income disclosure	Affirmed: retroactivity is discretionary; court did not abuse discretion in making change effective July 1, 2016
Whether trial court’s refusal to read father’s pre-trial brief violated due process	Father claimed deprivation of due process by court not reading his pretrial brief	Court said it did not read the brief to avoid admitting evidence outside trial; father had full opportunity to present testimony and argument	Affirmed: no due-process violation; father had opportunity to be heard and was not prejudiced by the court’s choice not to read the brief

Key Cases Cited

Niblett v. Niblett, 65 Va. App. 616 (discretion and statutory mandates in child support calculations)
Rinaldi v. Dumsick, 32 Va. App. 330 (appellate review of child support discretion)
Barnhill v. Brooks, 15 Va. App. 696 (child support standard of review)
Richardson v. Richardson, 12 Va. App. 18 (presumptive starting point: schedule in Code § 20-108.2)
Patel v. Patel, 61 Va. App. 714 (averaging multi-year income to reflect earning capacity)
Prizzia v. Prizzia, 58 Va. App. 137 (burden to produce credible evidence for child-care expenses)
Oley v. Branch, 63 Va. App. 681 (credibility and reasonableness of claimed nanny/daycare expenses)
O’Brien v. Rose, 14 Va. App. 960 (discretion on retroactivity of child support modifications)
Stiles v. Stiles, 48 Va. App. 449 (retroactivity and trial court discretion)
Menninger v. Menninger, 64 Va. App. 616 (due process: opportunity to be heard)
Street v. Street, 25 Va. App. 380 (trier of fact determines credibility)