Kirk T. Milam v. Sheila J. Milam
65 Va. App. 439
Va. Ct. App.2015Background
- Kirk and Sheila Milam divorced; at modification hearing father sought to reduce child support after one child reached majority; four children lived with mother during relevant period, three minors at time of decree.
- On remand the circuit court calculated presumptive child support and set father’s obligation at $1,170 (for four children) commencing Jan 1, 2012; later hearing addressed father's motion and arrearages.
- At the September 2014 hearing the court found father’s monthly income $11,199 (based on 2014 deposits/vouchers) and mother’s monthly employment income $745; the court treated mother’s household as including the adult son for poverty-size purposes.
- The court concluded mother’s income was below 150% of the federal poverty guideline for her household size and applied the sole-custody guidelines, awarding $1,380/month for three minor children.
- The court found father in contempt, sentenced him to 12 months with the sentence suspended subject to five conditions; condition 5 authorized issuance of a capias and automatic remand upon receipt of a sworn affidavit alleging noncompliance.
- Appeal: father challenged income findings, inclusion of adult son in household, omission/inclusion of spousal support in income calculations, increase of support though he moved to reduce, and the automatic-capias suspension condition.
Issues
| Issue | Milam (Plaintiff/Appellant) Argument | Milam (Defendant/Appellee) Argument | Held |
|---|---|---|---|
| May court increase child support when motion titled "Motion to Reduce Child Support"? | Title limits relief; court cannot increase without being requested. | Statutory guidelines require court to compute presumptive support when modifying; court may increase or decrease regardless of motion title. | Court: Allowed—when modification is before court, it may increase or decrease support per guidelines. |
| May an adult child be counted in custodial parent’s household for poverty-threshold under §20-108.2(G)(3)(d)? | Counting adult son improperly imposes de facto obligation on father for nondependent adult. | Federal poverty guidelines base household on persons living together; court has discretion. | Court: Inclusion was within discretion; household count may include adult son. |
| Should spousal support payments (partial or arrearages) be included in mother’s gross income? | Father: spousal support should be included in mother’s income. | Mother/Court below: father hasn’t paid full support; arrears exist so not included in mother’s actual income. | Court: Omitted in its opinion but worksheet used the full spousal obligation (deducted from father, added to mother); omission was harmless. |
| Did the suspended-sentence condition permitting automatic capias on affidavit violate due process? | Automatic remand on affidavit deprives father of notice/hearing and counsel before loss of liberty. | Court below imposed automatic procedure to enforce compliance. | Court: Reversed/vacated condition 5—revocation requires notice and hearing; automatic capias on affidavit improper. |
| Was the court’s finding of father’s income (2014 deposits/vouchers) unsupported or plainly wrong? | Father argued court improperly added all court-appointed payments and ignored 2012 tax return. | Court relied on 2014 bank deposits/vouchers and witness testimony; found 2012 return not controlling. | Court: Finding not plainly wrong; factual determinations of income affirmed. |
| Did court err by discounting mother’s testimony about tithing to infer higher income? | Father argued court should infer mother’s income ~ $3,000/month from her tithe testimony. | Court: No evidence mother actually tithed monthly $300; used documented employment income. | Court: No abuse of discretion; use of actual income figures upheld. |
Key Cases Cited
- Stiles v. Stiles, 48 Va. App. 449 (Va. Ct. App.) (trial court child-support determinations entitled to deference and must serve child’s best interest)
- Oley v. Branch, 63 Va. App. 681 (Va. Ct. App.) (modification of child support is reviewed for abuse of discretion)
- Hiner v. Hadeed, 15 Va. App. 575 (Va. Ct. App.) (trial court must determine presumptive support amount under guidelines when modifying support)
- Fadness v. Fadness, 52 Va. App. 833 (Va. Ct. App.) (distinguishes limits on relief in spousal-support pleadings; not controlling for child support)
- Griffin v. Cunningham, 205 Va. 349 (Va. 1964) (probation/suspended sentence revocation requires a judicial hearing)