Thomas Stokes Grymes, Jr. v. Robin L. Grymes ( 1999 )


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  •                       COURT OF APPEALS OF VIRGINIA
    Present:   Judges Elder, Bumgardner and Lemons
    THOMAS STOKES GRYMES, JR.
    MEMORANDUM OPINION *
    v.   Record No. 1185-99-2                      PER CURIAM
    OCTOBER 26, 1999
    ROBIN L. GRYMES
    FROM THE CIRCUIT COURT OF HENRICO COUNTY
    George F. Tidey, Judge
    (Murray J. Janus; Deanna D. Cook; Bremner,
    Janus & Cook, on brief), for appellant.
    (James B. Thorsen; Thorsen, Marchant & Scher,
    L.L.P., on brief), for appellee.
    Thomas Stokes Grymes, Jr. and Robin L. Grymes were divorced
    in 1996.   The father appeals the decision of the Henrico County
    circuit court dated May 18, 1999 related to custody, support and
    attorney's fees.   He contends that the trial court erred by:     (1)
    failing to change physical custody of the parties' children
    despite evidence that the mother violated the current visitation
    order and engaged in behavior designed to keep the children from
    having a positive relationship with the father; (2) failing to
    appropriately consider Code §§ 20-124.3 and 20-108 when reviewing
    his motion to change custody; (3) "affirming" the juvenile and
    domestic relations district court's decision concerning spousal
    * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    support rather than reviewing the matter de novo; (4) failing to
    hold the mother in contempt of court; (5) failing to impute income
    to the mother for purposes of calculating spousal and child
    support; and (6) awarding the mother attorney's fees.   Upon
    reviewing the record and briefs of the parties, we conclude that
    this appeal is without merit.   Accordingly, we summarily affirm
    the decision of the trial court.    See Rule 5A:27.
    Evidence was heard by the trial court in two ore tenus
    hearings.   The parties agreed to use district court transcripts
    for certain witnesses' testimony.
    Under familiar principles we view [the]
    evidence and all reasonable inferences in
    the light most favorable to the prevailing
    party below. Where, as here, the court
    hears the evidence ore tenus, its finding is
    entitled to great weight and will not be
    disturbed on appeal unless plainly wrong or
    without evidence to support it.
    Martin v. Pittsylvania County Dep't of Social Servs., 
    3 Va. App. 15
    , 20, 
    348 S.E.2d 13
    , 16 (1986).
    Motion to Change Physical Custody
    The father contends that the trial court erred by failing
    to change the physical custody of the parties' two boys to him.
    He also contends that the mother repeatedly violated the current
    visitation order.   The trial court found that the father failed
    to prove a change in circumstances justifying a change in
    custody.    We affirm.
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    As the party seeking a modification of the existing custody
    order, father bore the burden to prove "'(1) whether there has
    been a [material] change in circumstances since the most recent
    custody award; and (2) whether a change in custody would be in
    the best interests of the child.'"       Wilson v. Wilson, 
    18 Va. App. 193
    , 195, 
    442 S.E.2d 694
    , 696 (1994) (quoting Visikides v.
    Derr, 
    3 Va. App. 69
    , 70, 
    348 S.E.2d 40
    , 41 (1986)).       See Keel v.
    Keel, 
    225 Va. 606
    , 611, 
    303 S.E.2d 917
    , 921 (1983).      "In matters
    concerning custody and visitation, the welfare and best
    interests of the child are the 'primary, paramount, and
    controlling considerations.'"     Kogon v. Ulerick, 
    12 Va. App. 595
    , 596, 
    405 S.E.2d 441
    , 442 (1991) (citation omitted).      The
    trial court is vested with broad discretion to make the
    decisions necessary to safeguard and promote the child's best
    interests, and its decision will not be set aside unless plainly
    wrong or without evidence to support it.       See Farley v. Farley,
    
    9 Va. App. 326
    , 327-28, 
    387 S.E.2d 794
    , 795 (1990).
    The father produced evidence of several confrontations
    between the parties as evidence weighing against the mother's
    continued custody of the boys.    The father contended below and
    on appeal that, under Code § 20-124.3(6), the trial court was
    required to consider whether the mother failed to "actively
    support the [children's] contact and relationship with the other
    parent" and failed to "cooperate in matters affecting the
    [children]."   The father also relied on Code § 20-108 which
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    provides, in part, "[t]he intentional withholding of visitation
    of a child from the other parent without just cause may
    constitute a material change of circumstances justifying a
    change of custody in the discretion of the court."
    The trial court found that the father failed to prove that
    there was a change in circumstances justifying a modification in
    custody.   While the trial court found that there had been "some
    unfortunate confrontations" between the father, his wife, and
    the mother, "[t]ragically some . . . in front of the children or
    directly impact on the children," it found that the incidents
    "[did] not rise to the level of supporting a change of custody."
    The trial court did not attribute responsibility for the
    confrontations to either.    The mother was, however, directed not
    to interfere with the father's access to the boys' school
    activities.
    The father conceded below that there was no evidence that
    mother was "a bad mother per se."    Our review of the record
    supports the trial court's conclusion that nothing warranted a
    change in the current custody arrangement.   Because the trial
    court's decision, based upon the testimony heard ore tenus, was
    supported by the evidence and was not an abuse of discretion, we
    affirm.
    Appeal De Novo
    The father contends that the trial court erred by
    "affirming" the decision of the juvenile court increasing the
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    monthly spousal support award by $750, rather than hearing the
    evidence de novo.   See Code § 16.1-296(F).   While the trial
    court noted in an opinion letter that he was "affirming" the
    award of the juvenile court, it is clear that the court made a
    specific determination based upon the evidence produced at the
    hearing and the increase in the father's earnings since the last
    support determination.   The father points to nothing other than
    the wording of the letter to indicate that the trial judge
    applied an erroneous, deferential standard of review.   We find
    no reversible error.
    Contempt of Court
    The father contends that the trial court erred by failing
    to find mother in contempt of court for repeatedly violating the
    visitation order.   "A trial court 'has the authority to hold
    [an] offending party in contempt for acting in bad faith or for
    willful disobedience of its order.'"   Alexander v. Alexander, 
    12 Va. App. 691
    , 696, 
    406 S.E.2d 666
    , 669 (1991) (citation
    omitted).   Whether a party is in contempt is a matter left to
    the discretion of the trial court, whose decision "we may
    reverse . . . only if we find that it abused its discretion."
    Barnhill v. Brooks, 
    15 Va. App. 696
    , 704, 
    427 S.E.2d 209
    , 215
    (1993).
    The evidence demonstrated unquestionably that the parties
    have had difficulties communicating in the past.   However, the
    trial court did not hold the mother solely responsible for those
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    difficulties.   The trial court's factual determinations are
    supported by credible evidence.   Therefore, we cannot say that
    the trial court abused its discretion.
    Imputation of Income
    The father also contends that the trial court erred by
    failing to impute income to the mother for purposes of
    calculating spousal and child support.   We find no error.
    When calculating child support, income may be imputed to a
    parent "who is voluntarily unemployed or voluntarily
    under-employed" if the trial court determines that it is
    appropriate under the circumstances of the case.    See Code
    § 20-108.1.   The parties' older son is autistic.   He was
    described as "high functioning," but required special education
    classes at school.   Witnesses testified that his behavior and
    independence had improved as he matured, but there was evidence
    that, in the past, the mother was called to school at
    unpredictable times when problems arose.   While the father
    presented evidence that mother could earn $20,000 to $25,000 a
    year, his vocational expert admitted that he did not consider
    that the mother might require greater flexibility in her work
    environment due to the current needs of the parties' son.      The
    expert also admitted that he relied on the father's
    representation that childcare would be available for the
    children after school, although there was no evidence that such
    care was actually in place.   Furthermore, the evidence also
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    showed that, by agreement of the parties, the mother did not
    work to any significant extent during the parties' marriage
    following their children's birth.
    The trial court found that "it is important for [the older
    son] that [mother] be available to him for the foreseeable
    future."   Based upon the evidence concerning the current
    circumstances and the needs of the parties' children, we find no
    error in the trial court's refusal to impute income to the
    mother for purposes of child support calculations.
    Similarly, "[a] court may under appropriate circumstances
    impute income to a party seeking spousal support."   Srinivasan
    v. Srinivasan, 
    10 Va. App. 728
    , 734, 
    396 S.E.2d 675
    , 679 (1990).
    Code § 20-107.1(E)(9) requires the trial court to consider the
    "earning capacity, including the skills, education and training
    of the parties and the present employment opportunities for
    persons possessing such earning capacity" when determining
    spousal support.   As noted above, the trial court found that it
    was important under the current circumstances for the mother to
    be available for the parties' autistic son.   Therefore, we find
    no error in the trial court's decision that the evidence did not
    warrant an imputation of income to the mother for purposes of
    spousal support.
    Attorney's Fees
    An award of attorney's fees is a matter submitted to the
    sound discretion of the trial court and is reviewable on appeal
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    only for an abuse of discretion.   See Graves v. Graves, 
    4 Va. App. 326
    , 333, 
    357 S.E.2d 554
    , 558 (1987).   The key to a proper award
    of counsel fees is reasonableness under all the circumstances.
    See McGinnis v. McGinnis, 
    1 Va. App. 272
    , 277, 
    338 S.E.2d 159
    , 162
    (1985).   It is undisputed that the father's income greatly exceeds
    that of the mother.   Based on the issues involved and the
    respective abilities of the parties to pay, we cannot say that the
    award of $2,000 in attorney's fees to the mother was unreasonable
    or that the trial court abused its discretion in making the award.
    Accordingly, the decision of the circuit court is summarily
    affirmed.
    Affirmed.
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