                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Alston and Senior Judge Felton
PUBLISHED


            Argued at Alexandria, Virginia


            KIRK T. MILAM
                                                                                  OPINION BY
            v.     Record No. 0079-15-4                                      JUDGE WILLIAM G. PETTY
                                                                                NOVEMBER 17, 2015
            SHEILA J. MILAM


                            FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY
                                      Jonathan C. Thacher, Judge Designate

                           J. Burns Earle, III (Miller, Earle & Shanks, PLLC, on briefs), for
                           appellant.

                           Peter W. Buchbauer (Buchbauer & McGuire, P.C., on brief), for
                           appellee.


                   Kirk T. Milam (“father”) assigns nine errors to the circuit court’s award of increased

            child support. He assigns errors to the court’s factual finding of income for Sheila J. Milam

            (“mother”), to the court’s factual finding of his income, and to the court’s resulting determination

            of his child support obligation. Father argues, among other things, that the circuit court erred in

            increasing his child support obligation because his motion was entitled “Motion to Reduce Child

            Support” and mother did not expressly present a request for an increase. He additionally argues

            that the circuit court erred in including his adult son in mother’s household for purposes of

            calculating the applicable poverty level pursuant to Code § 20-108.2(G)(3)(d). He also argues

            that the court erred in failing to include in mother’s income the spousal support he was obligated

            to pay, though she did not receive it all. He argues further that the circuit court erred in setting

            the conditions for the suspension of his sentence after the court found him guilty of contempt.
For the reasons set forth below, we affirm in part and reverse and vacate in part the circuit

court’s ruling.

                                        I. BACKGROUND

       On appeal, we view the evidence “‘in the light most favorable to the prevailing party

below and its evidence is afforded all reasonable inferences fairly deducible therefrom.’” Bristol

Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 40, 764 S.E.2d 284, 287 (2014) (quoting Logan

v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991)). In

this case, mother prevailed below.

       Mother and father were married in 1994 and had five children together. At the time of

the modified final divorce decree on April 9, 2012, three of the children were minors. One son

was over eighteen years old but had not yet graduated from high school. These four children

continued to live with mother during the period relevant to this appeal.

       On May 3, 2012, father appealed to this Court the final divorce decree. On June 29,

2012, after his son graduated from high school, father filed “Defendant’s Motion to Reduce

Child Support and Spousal Support.” This Court issued its opinion regarding the final divorce

decree on April 30, 2013, affirming in part, reversing in part, and remanding. Milam v. Milam,

No. 0837-12-4, 2013 Va. App. LEXIS 134 (Va. Ct. App. Apr. 30, 2013). After oral argument by

the parties, the circuit court issued an order upon remand on July 25, 2014. In that order, the

court found that the shared custody guidelines were not presumptive under the circumstances of

this case because mother’s income was less than 150% of the federal poverty guidelines. The

court further found that use of the sole custody guidelines was more just and appropriate

pursuant to Code § 20-108.2(G)(3)(d). The court calculated the presumptive amount of $1169

for the four children father was obligated to support as of the date of the final divorce decree. It

then “rounded up” and established father’s child support obligation in the amount of $1170. This
                                                -2-
obligation had a commencement date of January 1, 2012. The order noted that father’s motion to

reduce child support would be addressed at a subsequent hearing.

       The hearing on father’s motion to reduce child support was held on September 24, 2014.

The court issued a letter opinion dated November 17, 2014, which was incorporated into the final

order dated December 23, 2014.1 In that letter opinion, the court calculated father’s income to be

$11,199 per month. The court rejected father’s argument that his 2012 income tax return

provided the best estimate of his current income. The court concluded it need not rely on the

2012 tax return because it “heard no evidence in support of [father’s] inability to file his 2013 tax

return.” In part, the court reasoned that father’s argument was rebutted by father’s “own

witness’s testimony.” Specifically, the court noted that father’s “Certified Public Accountant

testified that he only needed [father’s] bank statements in order to file [father’s] 2013 tax return.”

The record indicates, however, that the witness was called by mother, not father. Further,

contrary to the court’s description, the record indicates that the witness was female, rather than

male, and described herself as a tax preparer rather than a Certified Public Accountant.

Nonetheless, the court concluded from the witness’ testimony that “there was no reason why

[father’s] 2013 tax return could not be filed.” As a result, it rejected the argument that the court

should rely on the 2012 tax return, which was the most recently filed one.

       Instead, the court agreed with mother that the “most accurate estimation of [father’s]

income is reflected by his earnings thus far in 2014.” The earnings were evidenced by father’s

bank deposits and by reimbursement invoices for father’s court-appointed work from January to

July 2014.




       1
         The circuit court issued a suspending order on December 8, 2014 to retain jurisdiction
in the case.
                                               -3-
       Turning to mother’s income, the parties agreed that mother’s income from employment

alone was about $745 per month. The court found no merit in father’s argument that spousal

support owed by father should be included in mother’s income. The court reasoned that father

“ha[d] not paid [spousal support]” and had arrearages in the amount of $23,559.94. The court

therefore concluded that father’s support obligations should not be included in determining

mother’s actual income. Further, the court rejected father’s reasoning that mother must earn at

least $3000 per month because she testified that she tries to tithe to her church 10% of her

income, or $300. The court found “there [was] no evidence to support [father’s] argument that

[mother] actually tithes $300.00 per month.”

       Having found mother’s income to be $745 per month, the court also found that mother’s

income was below 150% of the federal poverty level for purposes of Code § 20-108.2(G)(3)(d).

In making that finding, the court included the parties’ adult son in mother’s household. The

parties agreed that the son lived with mother. The court rejected father’s argument that only

those children whom he is obligated to support under Code § 20-124.2 should be included in

household size. The court reasoned that the federal guidelines base the poverty level on number

of persons in the household, without regard to whether those persons are dependents. Although

it is undisputed that father has more than ninety days of visitation under the shared custody

guidelines, the court found that application of the shared custody guidelines would seriously

impair mother’s ability to maintain minimal adequate housing and other necessities for her

children. Accordingly, the court applied the sole custody guidelines. The court found that

father’s presumptive obligation was $1380 per month for the support of his three minor children.

The court awarded mother that amount.

       During the same hearing, the court also addressed mother’s rule to show cause based on

father’s failure to pay amounts already ordered by the court. The court found father in contempt
                                               -4-
and sentenced father to twelve months’ incarceration. The court suspended the sentence with

five enumerated conditions, including that father pay certain court-ordered payments and

arrearages according to the payment plan in the court’s December 23, 2014 order. The fifth

condition stated,

               5. Upon receipt of a sworn affidavit that any payments due are late
               or unpaid, or that Defendant failed to perform as set forth in these
               conditions, a [capias] shall issue and Defendant shall be remanded
               to the custody of the Sheriff of Rappahannock County, Virginia for
               service of his twelve month jail sentence.

       Father appealed the final order to this Court.

                                          II. ANALYSIS

       “‘We begin our analysis by recognizing the well-established principle that all trial court

rulings come to an appellate court with a presumption of correctness. Thus, we will not

invalidate a court’s decree unless the only reasonable interpretation thereof requires

invalidation.’” Stiles v. Stiles, 48 Va. App. 449, 453, 632 S.E.2d 607, 609 (2006) (quoting

Riggins v. O’Brien, 263 Va. 444, 448, 559 S.E.2d 673, 675-76 (2002)). “The court’s paramount

concern when awarding child support is the best interest of the children.” Id. at 456, 632 S.E.2d

at 611. “The court must consider the basic needs of the child, the parent’s ability to pay, and to

the extent that the parent is able to provide more than the basic necessities of life, the degree to

which the child should reasonably share in his or her parents’ prosperity.” Conway v. Conway,

10 Va. App. 653, 658, 395 S.E.2d 464, 466-67 (1990).

            A. AN INCREASE IN CHILD SUPPORT MAY ARISE FROM APPLICATION OF
         THE STATUTORY GUIDELINES EVEN IF A PARENT REQUESTS A REDUCTION ONLY

       Father argues that the circuit court erred as a matter of law by increasing his child support

obligation even though the only motion before the court was entitled “Motion to Reduce Child

Support.” Father argues, “Fundamental rules of pleading provide that no court can base its

                                                 -5-
judgment or decree upon a right which has not been pleaded and claimed.” Fadness v. Fadness,

52 Va. App. 833, 843, 667 S.E.2d 857, 862 (2008). Father does not argue that the issue of child

support was improperly before the court. Rather, he argues that the court was barred from

increasing, instead of reducing, the child support amount because the only motion before the

court was to reduce support. We disagree.

       “The determination of child support is a matter of discretion for the circuit court, and

therefore we will not disturb its judgment on appeal unless plainly wrong or unsupported by the

evidence.” Oley v. Branch, 63 Va. App. 681, 699, 762 S.E.2d 790, 799 (2014).

               “An abuse of discretion . . . can occur in three principal ways:
               when a relevant factor that should have been given significant
               weight is not considered; when an irrelevant or improper factor is
               considered and given significant weight; and when all proper
               factors, and no improper ones, are considered, but the court, in
               weighing those factors, commits a clear error of judgment.”

Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va. 346, 352, 717 S.E.2d 134, 137

(2011) (alteration in original) (quoting Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th

Cir. 1984)). Thus, unless it appears from the record that the circuit court judge has abused his

discretion by not considering or by misapplying one of the statutory mandates, the child support

award will not be reversed on appeal. See Wright v. Wright, 61 Va. App. 432, 454, 737 S.E.2d

519, 529-30 (2013) (discussing the standard of review in an equitable distribution case).

       Regardless of father’s choice of title for his motion, he requested a modification of child

support pursuant to Code § 20-108. Section 20-108 provides:

                       The court may, from time to time after decreeing as
               provided in § 20-107.2, on petition of either of the parents, or on
               its own motion . . . revise and alter such decree concerning the
               care, custody, and maintenance of the children and make a new
               decree concerning the same, as the circumstances of the parents
               and the benefit of the children may require.



                                               -6-
Evaluation of a motion to modify child support requires a multi-step analysis by the court. First,

the movant bears the burden of proving a material change of circumstance. Crabtree v. Crabtree,

17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993). “Once a child support award has been entered,

only a showing of a material change in circumstances will justify modification of the support

award.” Id. The court is then required to determine the presumptive child support amount by

using the statutory guidelines. Id. (“The statutory guidelines must be applied not only in the

initial child support hearing, but also in hearings to modify support.”); see Hiner v. Hadeed, 15

Va. App. 575, 579, 425 S.E.2d 811, 813 (1993) (“In a proceeding to increase, decrease, or

terminate child support under Code §§ 20-108 and 20-112, the trial judge must determine and

consider the presumptively correct award of child support according to the guidelines.”). Thus,

when a material change has been established, “the initial step to determine how to modify the

support award is to calculate the amount presumed to be correct according to the guidelines.”

Hiner, 15 Va. App. at 579, 425 S.E.2d at 813.

       Here, after a material change in circumstances was established,2 the court was required to

determine the presumptive support amount by following the statutory guidelines. This the court

did. Although father is now required to support three minor children, rather than four, his

increase in income resulted in a higher presumptive amount. Father argues that because he titled

his motion for modification a “Motion to Reduce Child Support” the court was precluded from

increasing the monthly support for father’s three minor children from $1170 to $1380.

       We disagree. Father relies on our decisions in Fadness and in Boyd v. Boyd, 2 Va. App.

16, 340 S.E.2d 578 (1986), for the proposition that an increase in child support cannot be granted


       2
        Father argued in his motion that his son’s graduation from high school was a material
change of circumstance. Neither father nor mother raises the issue of material change of
circumstance on appeal, and we therefore do not address it here.

                                                -7-
unless the non-moving parent specifically requests the increase. However, both these cases dealt

with spousal support. “Spousal support and child support represent two distinct remedies

directed at two very different interests: the spouse’s needs and the child’s needs.” Robbins v.

Robbins, 48 Va. App. 466, 484, 632 S.E.2d 615, 624 (2006). This can be seen, for example, in

Code § 20-108.1, which establishes a presumptively correct amount for child support. No such

counterpart exists for spousal support. Reece v. Reece, 22 Va. App. 368, 373 n.1, 470 S.E.2d

148, 151 n.1 (1996) (“Unlike spousal support cases, in cases involving the modification of child

support obligations, a trial court must calculate child support according to the presumptive

amounts outlined in Code § 20-108.2. Such presumptive amounts do not exist in cases involving

spousal support.”).

       “Statutory child support guidelines were designed ‘to assure that both the child’s needs

and the parent’s ability to pay are considered in determining the amount of support awards.’”

Oley, 63 Va. App. at 689, 762 S.E.2d at 793-94 (quoting Richardson v. Richardson, 12 Va. App.

18, 20, 401 S.E.2d 894, 895 (1991)). Child support awards are thus crafted for the child’s

benefit, not for the purpose of granting a parent relief. See Stiles, 48 Va. App. at 456, 632

S.E.2d at 611 (“The court’s paramount concern when awarding child support is the best interest

of the children.”). To this end, a court has authority to “make such further decree[s] as it shall

deem expedient concerning support of the minor children . . . .” Code § 20-124.2(C). Further,

the court has the authority to revise child support “on its own motion.” Code § 20-108. Thus,

courts may exercise the discretion to modify child support even in the absence of a request by

either parent.

       Nevertheless, the court’s discretion is not without bounds. It is well established that the

court must determine and consider the presumptively correct amount when considering



                                                -8-
modification of a parent’s child support obligation.3 Hiner, 15 Va. App. at 579, 425 S.E.2d at

813. It would be absurd to require the court to determine the presumptive amount and then

require it to shut its eyes to this amount because the motion requested a reduction only.

       Therefore, we hold that when a motion for modification of child support is before the

court, the court may increase or decrease the amount of child support pursuant to the statutory

guidelines, regardless of the wording of the motion seeking modification and regardless of

whether the other parent specifically requests such relief.

       Here, the circuit court had before it a motion to modify child support. The court followed

the statutory process of determining the presumptive amount and awarded that amount. Finding

that the circuit court did not abuse its discretion when considering and applying the statutory

process for modification of child support, we will not disturb its decision.

              B. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN APPLYING
                             THE FEDERAL POVERTY GUIDELINES

       Father argues that the circuit court erred as a matter of law by including one of the

parties’ adult children as part of mother’s household for purposes of determining whether Code

§ 20-108.2(G)(3)(d) applied.

       “The determination of child support is a matter of discretion for the circuit court, and

therefore we will not disturb its judgment on appeal unless plainly wrong or unsupported by the

evidence.” Oley, 63 Va. App. at 699-700, 762 S.E.2d at 799.

       Section 20-108.2(G)(3)(d) states:

               Any calculation under this subdivision [dealing with shared
               custody] shall not create or reduce a support obligation to an
               amount which seriously impairs the custodial parent’s ability to
               maintain minimal adequate housing and provide other basic

       3
         We previously reversed this case in part and remanded it to the circuit court precisely
because, among other things, the court had failed to make an express finding of the presumptive
child support amount. Milam, 2013 Va. App. LEXIS 134.
                                               -9-
               necessities for the child. If the gross income of either party is
               equal to or less than 150 percent of the federal poverty level
               promulgated by the U.S. Department of Health and Human
               Services from time to time, then the shared custody support
               calculated pursuant to this subsection shall not be the
               presumptively correct support and the court may consider whether
               the sole custody or the shared custody support is more just and
               appropriate.

The federal guidelines establish the poverty level based on the number of “persons in

family/household.” Annual Update of the HHS Poverty Guidelines, 79 Fed. Reg. 3953 (Jan. 22,

2014). The guidelines, however, “[do] not provide definitions of such terms as ‘income’ or

‘family’ because there is considerable variation in defining these terms among the different

programs that use the guidelines.” Id. at 3594. The federal guidelines explain that questions

such as

               “Should a particular person be counted as a member of the
               family/household?” [is] actually [a] question[] about how a
               specific program applies the poverty guidelines. All such
               questions about how a specific program applies the guidelines
               should be directed to the entity that administers or funds the
               program, since that entity has the responsibility for defining such
               terms as “income” or “family,” to the extent that these terms are
               not already defined for the program in legislation or regulations.

Id.4




          4
         Until 2004, the annual update included statistical definitions with a caution that “[t]here
is no universal administrative definition of ‘family,’ ‘family unit,’ or ‘household’ that is valid for
all programs that use the poverty guidelines. . . . The . . . statistical definitions . . . are made
available for illustrative purposes only; in other words, these statistical definitions are not
binding for administrative purposes.” Annual Update of the HHS Poverty Guidelines, 69 Fed.
Reg. 7336 (Feb. 13, 2004). The statistical definition given for “family” was “a group of two or
more persons related by birth, marriage, or adoption who live together . . . .” Id. The statistical
definition given for “household” was “all the persons who occupy a housing unit (house or
apartment), whether they are related to each other or not.” Id. Beginning in 2005, the annual
update omitted the statistical definitions altogether and directed users of the guidelines to
“consult the office or organization administering the program in question.” Annual Update of
the HHS Poverty Guidelines, 70 Fed. Reg. 8373 (Feb. 14, 2005).
                                                - 10 -
       For the purposes of Code § 20-108.2(G)(3)(d), the poverty guidelines must be construed

in a manner that achieves the General Assembly’s purpose. We may ascertain the General

Assembly’s purpose from the plain language of the statute. See Johnson v. Commonwealth, 53

Va. App. 608, 613, 674 S.E.2d 541, 543 (2009). The poverty guidelines are used to assure that a

calculation of shared-custody child support “[does] not create or reduce a support obligation to

an amount which seriously impairs the custodial parent’s ability to maintain minimal adequate

housing and provide other basic necessities for the child.” Code § 20-108.2(G)(3)(d). Further,

we ascertain from the statute that the General Assembly intended to give broad discretion to the

trial court in using the guidelines. “[T]he court may consider whether the sole custody or the

shared custody support is more just and appropriate,” id. (emphasis added), when a party’s

income is below 150% of the federal poverty guidelines. The court is not required to reduce or

adjust the presumptive shared custody amount. The General Assembly left this decision to the

discretion of the court.

       Here, the circuit court reasoned that the plain text of the federal poverty guidelines bases

the poverty level on the number of persons in a household regardless of whether the person is

classified a dependent of the party. Neither Code § 20-124.2 nor Code § 20-108.2(G)(3)(d)

defines “family” or “household.” It was therefore within the court’s discretion to use the

common meaning of the terms. See Joseph v. Commonwealth, 64 Va. App. 332, 338, 768

S.E.2d 256, 259 (2015). A household is “[a] family living together.” Household, Black’s Law

Dictionary (9th ed. 2009). A family is “[a] group consisting of parents and their children.”

Family, Black’s Law Dictionary (9th ed. 2009). Under these definitions, the parties’ adult child

is clearly a member of mother’s household.

       Nevertheless, father argues that only those children he is obligated to support pursuant to

Code § 20-124.2 should be included in the family/household size. He contends that counting his
                                              - 11 -
eighteen-year-old son in mother’s household “creat[es] a de facto obligation for [father] to

support a grown child whom he . . . otherwise has no legal obligation to support under

[§] 20-124.2.” We disagree. Determination of the poverty guideline amount for mother’s

household has nothing to do with the number of children father is obligated to support. Rather,

the determination of whether mother’s income falls below 150% of the poverty guideline is to

help ensure that her support obligations do not seriously impair her ability to maintain minimal

adequate housing and to provide other basic necessities for her minor children. We therefore

hold that under the facts of this case the court did not abuse its discretion in including the adult

child in mother’s household for purposes of Code § 20-108.2(G)(3)(d).

       Finding that mother’s income is below 150% of the poverty level for her household size

is not the end of the inquiry. Section 20-108.2(G)(3)(d) instructs that if a court finds the party’s

income to be below the threshold amount, it “may consider whether the sole custody or the

shared custody support is more just and appropriate.” (Emphasis added). The purpose of the

statute is to avoid creating “a support obligation [in] an amount which seriously impairs the

custodial parent’s ability to maintain minimal adequate housing and provide other basic

necessities for the child.” Id. Thus, although income-earning family members might be included

in the definition of household, the court must take into account such facts when determining

which guidelines are more just and appropriate.

       Here, the circuit court expressly found that application of the shared custody guidelines in

this case would seriously impair mother’s ability to maintain minimal adequate housing and to

provide other necessities for her children. Finding no abuse of discretion in the court’s

application of the sole custody guidelines, we will not disturb the decision.




                                                - 12 -
      C. OMISSION OF SPOUSAL SUPPORT FROM MOTHER’S INCOME WAS HARMLESS ERROR

       “The issue of [a party’s] income is a question of fact, and ‘the judgment of the [circuit]

court on questions of fact is entitled to great weight and will not be disturbed unless it is plainly

wrong or without evidence to support it.’” Patel v. Patel, 61 Va. App. 714, 727, 740 S.E.2d 35,

42 (2013) (second alteration in original) (quoting Smith v. Board of Supervisors, 201 Va. 87, 91,

109 S.E.2d 501, 505 (1959)).

       “For purposes of calculating child support, Code § 20-108.2(C) prescribes that a party’s

‘gross income’ . . . shall include . . . income from . . . spousal support.” Cranwell v. Cranwell, 59

Va. App. 155, 166, 717 S.E.2d 797, 802 (2011) (alterations in original). “Furthermore, it

provides that ‘[f]or purposes of this subsection: (i) spousal support received shall be included in

gross income and spousal support paid shall be deducted from gross income when paid pursuant

to an order or written agreement.’” Id. (quoting Code § 20-108.2(C)).

       Father argues the circuit court erred “in determining [mother’s] income, because the

[c]ourt completely omitted from its calculation [mother’s] income from the spousal support

payments she receives from [father].” In its letter opinion, the court found mother’s monthly

income to be $745 and rejected father’s argument that spousal support be included. The court

found that father “ha[d] not been paying his support obligations.” The court noted arrearages in

the amount of $23,559.94. Although father indisputably had arrearages at the time of the

hearing, the uncontested evidence shows that father made some spousal support payments to

mother during the twelve months preceding the hearing. To the extent that the court failed to

include these payments in mother’s gross income, it erred.

       Finding an error by the court does not end our inquiry, however. When this Court finds

that error has been committed by a trial court, we are required to consider whether the error was

harmless. “Code § 8.01-678 makes ‘harmless error review required in all cases.’” Tynes v.
                                                - 13 -
Commonwealth, 49 Va. App. 17, 23 n.3, 635 S.E.2d 688, 690 n.3 (2006) (quoting Ferguson v.

Commonwealth, 240 Va. ix, ix, 396 S.E.2d 675, 675 (1990)). Code § 8.01-678 provides:

               When it plainly appears from the record and the evidence given at
               the trial that the parties have had a fair trial on the merits and
               substantial justice has been reached, no judgment shall be arrested
               or reversed . . . (2) For any other defect, imperfection, or omission
               in the record, or for any error committed on the trial.

This statute “‘puts a limitation on the powers of this court to reverse the judgment of the trial

court—a limitation which we must consider on every application for an appeal and on the

hearing of every case submitted to our judgment.’” Kirby v. Commonwealth, 50 Va. App. 691,

699, 653 S.E.2d 600, 604 (2007) (quoting Walker v. Commonwealth, 144 Va. 648, 652, 131 S.E.

230, 231 (1926)).

       Here, the court found in its letter opinion that mother’s monthly income was $745 and

father’s monthly income was $11,199, with no adjustment for spousal support. Nevertheless, the

court used as a basis for its award the Child Support Guideline Worksheet included in the joint

appendix at page 546. This worksheet adds to mother’s income, and deducts from father’s

income, the full spousal support obligation of $2830 per month. Based on this worksheet, the

presumptive amount of father’s child support obligation was $1380. This is the amount the court

awarded. Therefore, any error in the court’s statements was harmless because the court actually

calculated the presumptive child support amount by adjusting for the spousal support obligation,

just as father argued the court should do.5




       5
          We note that if the court had calculated the child support obligation based on the
income figures without adjustment for spousal support, as the letter opinion indicated, then
father’s obligation would have been substantially higher. Mother, however, did not assign
cross-error to this calculation. We will therefore not address it here.
                                                - 14 -
                   D. THE COURT ERRED IN ITS SUSPENDED SENTENCE ORDER

       Father assigns error to the wording of the court’s order setting certain conditions as part

of a suspended sentence. The circuit court found father guilty of contempt pursuant to Code

§ 20-115 and sentenced him to a twelve-month jail sentence. The court suspended the sentence

upon five enumerated conditions requiring father to pay his support obligations, arrearages, and

delinquent attorney fee payments according to the schedule set forth in the December 23, 2014

order. The fifth condition stated:

               5. Upon receipt of a sworn affidavit that any payments due are late
               or unpaid, or that Defendant failed to perform as set forth in these
               conditions, a cap[ias] shall issue and Defendant shall be remanded
               to the custody of the Sheriff of Rappahannock County, Virginia for
               service of his twelve month jail sentence.

Father argues that if mother submits an affidavit, the procedure provided by the order “would

deprive father of his liberty without notice, or a hearing, or the opportunity to be represented by

counsel.”

       Where a “court has suspended the execution or imposition of sentence, the court may

revoke the suspension of sentence for any cause the court deems sufficient that occurred at any

time within the probation.” Code § 19.2-306(A). “Because a revocation proceeding is not ‘a

stage of criminal prosecution,’ a probationer accused of violating the conditions of probation ‘is

not entitled to the same due process protections afforded a defendant in a criminal prosecution.’”

Price v. Commonwealth, 51 Va. App. 443, 446, 658 S.E.2d 700, 702 (2008) (quoting Logan v.

Commonwealth, 50 Va. App. 518, 525, 651 S.E.2d 403, 406 (2007)). A probationer, however, is

entitled to certain minimum safeguards including notice and hearing. See id. at 446-47, 658

S.E.2d at 702 ( holding that minimum procedural safeguards include written notice of the

claimed violations). Further, “‘[s]ince the revocation of a suspension deprives the probationer of

his liberty, he is entitled to a judicial hearing thereon.’” Griffin v. Cunningham, 205 Va. 349,
                                               - 15 -
354, 136 S.E.2d 840, 844 (1964) (quoting Slayton v. Commonwealth, 185 Va. 357, 366, 38

S.E.2d 479, 483 (1946)).

       This minimal safeguard of a hearing is clearly inferred from Code § 19.2-306, which

establishes the procedure for revocation of suspended sentences. Section 19.2-306(B) instructs

that a “court may not conduct a hearing to revoke the suspension of sentence unless the court . . .

issues process to notify the accused or to compel his appearance before the court” within the

prescribed time limit. The statute also provides that “[i]f the court, after hearing, finds good

cause to believe that the defendant has violated the terms of suspension,” then the court may

revoke the suspension. Code § 19.2-306(C) (emphasis added). On the other hand, “[i]f any

court has, after hearing, found no cause to . . . revoke a suspended sentence,” then a subsequent

revocation “based solely on the alleged violation for which the hearing was held, shall be

barred.” Code § 19.2-306(D). Thus, the statute clearly anticipates that when a defendant is

accused of violating the terms of suspension, he will have notice of the violation and an

opportunity for a hearing. Likewise, the statute anticipates that after an alleged violation of the

terms of suspension, the court will have the opportunity to determine, at a hearing, whether there

is “good cause to believe that the defendant has violated the terms of suspension.” Code

§ 19.2-306(C). Additionally, in Peyton v. Commonwealth, 268 Va. 503, 511, 604 S.E.2d 17, 21

(2004), the Supreme Court held that there was a distinction between the willful failure of an

inmate to comply with the conditions of his suspended sentence and a failure due to

circumstances outside the inmate’s control. The Court observed that “in either case the inmate

necessarily will be subjected to a show cause hearing” at which the court may revoke the

inmate’s sentence. Id. (emphasis added).

       Here, the fifth condition of suspended sentence stated that upon receipt of a sworn

affidavit father would be arrested and be remanded to the custody of the sheriff for service of his
                                               - 16 -
twelve-month jail term. The procedure given in the court’s order did not provide an opportunity

for a show cause hearing at which father could argue that he had not, in fact, violated the terms

of suspension or that he had not done so willfully. The procedure given in the order deprived the

court of the opportunity to determine at a hearing whether there was “good cause to believe that

[father] ha[d] violated the terms of suspension,” Code § 19.2-306(C), before revoking the

suspension. We therefore hold that the court erred in including condition number 5 in its order;

we accordingly vacate that portion of the order, which fails to provide father with notice and an

opportunity to be heard prior to the circuit court deciding whether to revoke any portion of the

suspended sentence.

      E. THE COURT DID NOT ABUSE ITS DISCRETION BY USING ACTUAL INCOME FIGURES
                    AS A BASIS FOR DETERMINING MOTHER’S INCOME

       Father argues the court erred by “ignoring [mother]’s admission that she tithes 10% of

her income and the clear inference from her testimony that [mother’s] annual income is

$36,000.”

       The issue of a party’s income is a question of fact that we will not disturb unless it is

plainly wrong or without evidence to support it. Patel, 61 Va. App. at 727, 740 S.E.2d at 42.

“‘The credibility of the witnesses and the weight accorded the evidence are matters solely for the

fact finder who has the opportunity to see and hear that evidence as it is presented.’” McKee v.

McKee, 52 Va. App. 482, 492, 664 S.E.2d 505, 510 (2008) (en banc) (quoting Sandoval v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995)). Thus, “[o]n appeal, we

will not reverse findings of fact ‘unless plainly wrong.’” Budnick v. Budnick, 42 Va. App. 823,

834, 595 S.E.2d 50, 55 (2004).

       We find father’s assertion that the circuit court “minimize[ed],” “ignored” or

“overlooked” the facts on this issue to be baseless. The circuit court directly addressed in its

                                               - 17 -
letter opinion father’s argument regarding mother’s tithing and found it to be “without merit.”

Although mother testified that she believed she tithed $300 “[i]f it’s 10 % of what [she]

receive[s],” the court noted there was “no evidence to support [father’s] argument that [mother]

actually tithes $300.00 per month.”6 Instead of inferring income from mother’s testimony, the

court used actual income amounts from mother’s employment. The court had “the opportunity

to see and hear th[e] evidence as it [was] presented” and determine the “credibility of the

witnesses and the weight [to be] accorded the evidence.” See McKee, 52 Va. App. at 492, 664

S.E.2d at 510. Under our deferential standard of review, the court’s use of actual income figures

rather than use of mother’s testimony to infer income was not plainly wrong or without evidence

to support it. Thus we will not disturb the court’s decision on appeal.

                 F. THE COURT’S CALCULATION OF FATHER’S INCOME WAS NOT
                    PLAINLY WRONG OR WITHOUT EVIDENCE TO SUPPORT IT

       Father argues that the court erred “by adding all of [father’s] income from [c]ourt-

appointed counsel work to his deposits in determining his income[.]” The calculation of father’s

income is a question of fact, and we will not disturb the circuit court’s judgment unless plainly

wrong or without evidence to support it. Patel, 61 Va. App. at 727, 740 S.E.2d at 42.

       During the hearing on father’s motion to reduce child support, father introduced a list

purporting to show voucher amounts paid to him by the Commonwealth over a period of several

years. Father argued that the list included both garnished amounts and amounts that were

already counted as income by way of deposits into his operating account. Although father

argued that the circuit court could distinguish deposited amounts from garnished amounts by the

presence of a check number next to the entry, the court was not required to credit father’s

       6
          Although mother testified that she remembered writing checks for $300, she did not
testify that she did so every month. Further, father’s Exhibit 7 included seven checks dated
within the year prior to the September 24, 2014 hearing. Only one of those checks equaled or
exceeded $300.
                                               - 18 -
unsubstantiated testimony as to the meaning of the documents. The court questioned the parties

at length regarding the deposits reflected on father’s bank statements.

       Simply put, father disagrees with the court’s factual finding regarding his income in light

of the court’s interpretation of the documentary evidence and the weight given testimony

presented at trial. “[W]hen a court hears evidence at an ore tenus hearing, its decision is entitled

to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to

support it.” Goodhand v. Kildoo, 37 Va. App. 591, 599, 560 S.E.2d 463, 466 (2002). The

circuit court had before it all of father’s evidence and heard father testify. The court was not

required to credit father’s evidence or testimony. Father’s income is a finding of fact that we

will not disturb unless father points us to legal authority and argument demonstrating that the

circuit court was plainly wrong. Patel, 61 Va. App. at 727, 740 S.E.2d at 42. Father has failed to

do so. We will therefore leave the court’s factual finding undisturbed.

                        G. ASSIGNMENT OF ERROR DEFAULTED BY 5A:18

       Rule 5A:18 states:

               No ruling of the trial court . . . will be considered as a basis for
               reversal unless an objection was stated with reasonable certainty at
               the time of the ruling, except for good cause shown or to enable the
               Court of Appeals to attain the ends of justice. A mere statement
               that the judgment or award is contrary to the law and the evidence
               is not sufficient to preserve the issue for appellate review.

       “The main purpose of requiring timely specific objections is to afford the trial court an

opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and

reversals. In addition, a specific, contemporaneous objection gives the opposing party the

opportunity to meet the objection at that stage of the proceeding.” Weidman v. Babcock, 241

Va. 40, 44, 400 S.E.2d 164, 167 (1991) (citation omitted). Furthermore, “we will not consider a

different ground of objection raised for the first time on appeal[.]” O’Dell v. Commonwealth,

                                               - 19 -
234 Va. 672, 679, 364 S.E.2d 491, 495 (1988) (citing Rule 5:25, the Supreme Court’s equivalent

of this Court’s Rule 5A:18).

       Father argues that the court erred in “failing to determine [father’s] income at the time of

the filing of his Motion to Reduce Child Support, June 29, 2012, instead making a finding of

[father’s] 2014 income, a time not in existence when [father] filed his Motion to Reduce Child

Support.” He did not make this argument to the circuit court. Rather, father argued to the court

that his 2012 tax return was the best estimation of his current (2014) income because it was the

most recently filed return. Because the circuit court did not have an opportunity to rule on the

argument that 2012 was a more appropriate year because it was the year in which the motion was

filed, we will not address that assignment of error.7

                           H. ASSIGNMENTS DEFAULTED BY RULE 5A:20

        “Rule 5A:20(e) requires that an appellant’s opening brief contain ‘[t]he principles of law,

the argument, and the authorities relating to each question presented.’ Unsupported assertions of

error ‘do not merit appellate consideration.’” Fadness, 52 Va. App. at 850, 667 S.E.2d at 865

(alteration in original) (quoting Jones v. Commonwealth, 51 Va. App. 730, 734, 660 S.E.2d 343,

345 (2008)). An appellate court “is not a depository in which the appellant may dump the

burden of argument and research.” Id. “[S]trict compliance with the rules permits a reviewing

court to ascertain the integrity of the parties’ assertions which is essential to an accurate

determination of the issues raised on appeal.” Id. (quoting Jones, 51 Va. App. at 734-35, 660

S.E.2d at 345). Accordingly, when a party’s failure to strictly adhere to the requirements of Rule

5A:20(e) is significant, this Court may treat the assignment of error as waived. Id.



       7
        The court stated that it found no reason to rely on father’s 2012 tax return “for a
determination of his current income.” Modified child support payments were prospective only,
commencing on December 31, 2014.
                                              - 20 -
       Father argues that the circuit court erred by concluding “that [father’s] average monthly

income for the months of August through December 2014 would be the same as his average

monthly income for January through July 2014.” Father cites Srinivasan v. Srinivasan, 10

Va. App. 728, 735, 396 S.E.2d 675, 679 (1990), for the principle that “current circumstances and

what the circumstances will be ‘within the immediate or reasonably foreseeable future’” must be

the basis of support awards. But Father cites no principle of law, legal argument, or authority

relating to his contention that the circuit court used an incorrect method of determining his

current annual income when it calculated an average. Here, father’s failure to provide “[t]he

principles of law, the argument, and the authorities,” for this assignment of error is significant,

and we deem the argument waived. See Rule 5A:20.

       Father additionally argues that the circuit court

               committed plain error in finding that [father’s] own Certified
               Public Account (“CPA”), a man’s testimony[,] rebutted [father’s]
               testimony regarding his 2012 income, because the evidence was
               clear that only [father’s] bookkeeper—who is neither a CPA, nor a
               man—testified, and the record shows that [mother], not [father]
               called the bookkeeper as a witness.

In its letter opinion, the court refers to the witness as “he,” as a Certified Public Accountant, and

as father’s witness. Each of these characterizations conflicts with the record. Father does not

challenge the testimony of the witness, only the faulty description of the witness by the court.

Father fails to provide “[t]he principles of law, the argument, and the authorities” explaining why

the court’s faulty description of the witness makes the court’s finding regarding father’s income

incorrect. He failed to provide meritorious argument that the errors were more than harmless

misspeak. See Code § 8.01-678; see also Yarborough v. Commonwealth, 217 Va. 971, 978, 234

S.E.2d 286, 291 (1977) (“Absent clear evidence to the contrary in the record, the judgment of a

trial court comes to us on appeal with a presumption that the law was correctly applied to the

                                                - 21 -
facts. Furthermore, we will not fix upon isolated statements of the trial judge taken out of the

full context in which they were made, and use them as a predicate for holding the law has been

misapplied.”). We therefore consider this assignment of error waived. See Rule 5A:20(e).

                                           III. CONCLUSION

       We conclude that the circuit court erred in ordering that husband’s suspended jail

sentence for contempt would be automatically revoked if husband failed to make future

payments, without providing husband notice and an opportunity to be heard. Accordingly, we

reverse and vacate condition number 5 of the final order. We affirm the circuit court’s factual

findings of mother’s income and father’s income. Based on those findings, we hold that the

court did not err in determining father’s child support obligations. We therefore affirm the

remainder of the circuit court’s ruling.

                                                     Affirmed in part, reversed and vacated in part.




                                                - 22 -
