Noel J. Albert v. Cynthia G. Albert ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia
NOEL J. ALBERT
v. Record Nos. 1439-01-4 and OPINION BY
1987-01-4 JUDGE ROBERT P. FRANK
MAY 21, 2002
CYNTHIA G. ALBERT
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
Ted Kavrukov (Kavrukov & DiJoseph, on
briefs), for appellant.
No brief or argument for appellee.
In this consolidated appeal, Noel J. Albert (father) appeals
the trial court's denial of his Motion to Modify Visitation and
Child Support. He contends the trial court erred in (1) not
modifying visitation to reduce childcare costs, (2) failing to
impute income to Cynthia G. Albert (mother), and (3) awarding
attorney's fees to mother. Father also appeals the trial court's
finding that he was responsible for payment of certain medical
expenses of the minor children. For the reasons stated, we
affirm.
I. BACKGROUND
A. Visitation and Child Support
The parties were divorced in June 2000. Custody of the
parties' three children was given to mother, and a schedule of
visitation with father was established. On January 18, 2001,
father filed a Motion to Modify Visitation and Child Support.
The motion stated mother works "32 hours a week, 24 hours on
weekends and 8 hours on Tuesdays from 3:00 p.m. to 11:00 p.m."
Also, mother "pays for child care while she works on Tuesdays."
Father proposed he care for the children on Tuesdays, from the end
of the school day until the next morning, when he would take the
children to school. In the alternative, father suggested the
parties' thirteen-year-old daughter provide childcare for the
other two children on Tuesdays. Father indicated in his motion
that either alternative would "significantly diminish child care
costs" and, therefore, reduce child support.
A hearing on the motion was set for March 22, 2001. No one
testified at the hearing, despite the motion's evidentiary nature.
The hearing consisted of a dialogue between the judge and counsel.
Neither party objected to this procedure; therefore, we accept the
dialogue as "proffered testimony." However, we can glean only
minimal information from this dialogue.1
At the beginning of the hearing, counsel for mother indicated
she could stop working on Tuesday, thereby saving childcare
expenses for that day. Counsel opined this change would eliminate
1
We realize many trial issues are resolved with proffered
evidence, but counsel and the trial court must ensure the
proffers contain all of the information necessary to resolve the
issue at trial and to provide a sufficient record for appellate
review.
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any interruption in the children's schedules. The children
"wouldn't have to . . . go to dad's, get up early on Wednesday
morning and be driven to school."
Father's attorney responded that, if mother did not work on
Tuesdays, her salary would be diminished considerably, and the
court then must impute that lost income to her. Father's counsel
represented that mother's total annual salary was $74,823.32, or
$6,235.28 per month. Mother's attorney explained, however,
because of a new union contract with increased wages, mother could
maintain her old salary without working on Tuesdays.
Father's counsel stated that if mother continued to work on
Tuesdays, and the children spent Tuesday nights with father, the
reduction in childcare costs would be $616 per month. No other
evidence, by proffer or otherwise, was elicited as to income or
the expenses of the parties.
The trial court ruled the children would not spend Tuesday
evenings with father. The court further ordered, since mother
would no longer work on Tuesdays, that both counsel recalculate
the amount of child support based on the reduction in her income
and the reduction in childcare expenses. The court denied the
request for imputation of income, without stating a reason. It
also awarded attorney's fees in the amount of $780 to mother.
During the ensuing recess, the parties compromised on an amount of
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child support of $533 per month. The parties did not file any
worksheets with the court. 2
The trial court entered an order on May 10, 2001, denying the
motion to modify visitation, awarding $533 per month in child
support, 3 and awarding mother $780 in attorney's fees.
B. Medical Expenses
Mother filed a Petition for Rule to Show Cause against father
on April 11, 2001, claiming he had willfully failed to pay his
share of the children's medical expenses as provided in the final
decree of divorce. She claimed he owed $960.92 for these bills.
The final divorce decree of the parties provided,
In the event that the children have
extraordinary uninsured medical expenses,
including but not limited to deductibles,
medicines, therapy, counseling, physical
therapy, dental and/or orthodontic expenses,
[father] shall be responsible and pay 50% of
these expenses. Payment for said expenses
shall be made at the time [mother] provides
[father] with evidence of the expense, or at
such time as a doctor or other medical
professional requires payment.
2
While the appendix contains worksheets, they were not
offered into evidence at the hearing nor were they made part of
the proffer. These documents, therefore, are not part of the
record and will not be considered by this Court. Rule 5A:10,
Rule 5A:25. See also John v. Im, 263 Va. 315, 320, 559 S.E.2d
694, 697 (2002) (noting the appellate court is limited to the
record before it and cannot consider documents that were not
submitted to the trial court).
3
The order states the support award is based upon "the
agreement of the parties as to the amount of child support based
upon the guidelines set forth by the court."
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The final decree further ordered father to "provide health care
insurance coverage for the children."
A consent order entered on July 23, 1999 set forth custody,
visitation, and the related issues of health, education, and
"general upbringing." It required each party "notify the other at
the time a doctor, dental or medical appointment is made for the
benefit of the children." 4
The June 29, 2001 show cause hearing also consisted generally
of a dialogue between counsel and the court. Mother testified
4
The entire paragraph B, "Health," states:
1. The parties agree to consult with each
other on major health decisions, and each
parent shall have access to professional
consultation and records.
2. If any of the children should become
sick, the parent with whom the child is not
staying at the time may visit the sick
child. Each parent is to notify the other
if any child is sick enough to be taken to
the doctor or is confined to bed for two
days or more.
3. In the event that either parent should
need to authorize emergency hospitalization,
medical care or both for either child, that
parent in whose care or presence the child
is at the time shall have full authority to
do so as a custodial parent.
4. The parties shall notify the other at
the time a doctor, dental or medical
appointment is made for the benefit of the
children.
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briefly, but not under oath. 5 Mother apparently submitted five
cancelled checks and three credit card receipts, showing payments
totaling $1,512.84 for various doctors' appointments.
Additionally, mother apparently presented to father at the
hearing, for the first time, another medical bill for $204.50,
raising the total medical bills to $1,717.34. 6
Father's counsel argued his client should not be responsible
for fifty percent of these bills. He contended mother did not
have "clean hands" for several reasons. First, contrary to the
terms of the consent order, she did not notify father of the
children's appointments that gave rise to these medical bills.
Also, father never received copies of the bills so that he could
submit them to his primary or secondary insurance carrier. Father
further contended that several medical bills were from visits to
medical providers outside of his insurance plan.
At the hearing, father confirmed that his counsel's
representations to the court were "the truth." Father did not
testify. Both the judge and mother's counsel accepted the
representations of fact presented in father's counsel's argument.
Although not under oath, mother addressed the trial court and
admitted that she took the children to two health providers,
Dr. Sharif and Hour Eyes, who were not on father's insurance plan.
5
Again, father did not object to this procedure.
6
Father never questioned or objected to the amount of the
medical bills. He objected only to paying some or all of them.
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She indicated Dr. Sharif initially was on the plan and only after
the services were rendered did she learn that Sharif had dropped
the plan. She then began taking the children to another doctor.
Mother explained Hour Eyes told her that they "carry her
insurance," but, apparently, they did not.
The trial court found father was not in contempt of the
consent order. The court admonished mother to notify father
whenever the children went to a doctor, "in order to give him the
opportunity to make sure it's covered by the insurance," and to
transmit medical bills in a timely fashion, since "it's better to
provide it [to father] sooner as opposed to later." The trial
court did order that father pay $960.92 of the unreimbursed
medical expenses, attorney's fees of $600, and costs of $69.50.
II. ANALYSIS
A. Visitation and Child Support
Father first contends the trial court erred in not modifying
its earlier order to allow him visitation on Tuesdays. We
disagree.
When determining whether to change visitation, a trial court
"must apply a two-pronged test: (1) whether there has been a
change in circumstances since the most recent [visitation] award;
and (2) whether a change in [visitation] would be in the best
interests of the child." Visikides v. Derr, 3 Va. App. 69, 70,
348 S.E.2d 40, 41 (1986) (discussing this test in the context of
custody determinations). "In matters of custody, visitation, and
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related child care issues, the court's paramount concern is always
the best interests of the child." Farley v. Farley, 9 Va. App.
326, 327-28, 387 S.E.2d 794, 795 (1990). "In matters of a child's
welfare, trial courts are vested with broad discretion in making
the decisions necessary to guard and to foster a child's best
interests." Id. at 328, 387 S.E.2d at 795. "A trial court's
determination of matters within its discretion is reversible on
appeal only for an abuse of that discretion, . . . and a trial
court's decision will not be set aside unless plainly wrong or
without evidence to support it." Id. (citation omitted).
Here, father did not meet his burden. He did not show any
change of circumstance had occurred since the last order nor did
he show a change in visitation would be in the children's best
interests. Instead, his motion and argument only demonstrated
that a change would be in his best interest. 7 His rationale for
the Tuesday visitation was to reduce his child support payments by
saving childcare costs. The trial court did not abuse its
discretion in denying the motion to change visitation.
Father next contends, since mother voluntarily reduced her
workweek from thirty-two to twenty-four hours by not working
7
While appellant, at oral argument, contended he argued
during the hearing that a change in visitation would be in the
children's best interest, we find nothing in the record to
support that position.
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Tuesdays, income should be imputed to her. We again must look to
the "proffered testimony" to determine if father met his burden. 8
The dialogue indicated mother was "willing" to "stop working
on Tuesdays." The record does not reflect whether she did in fact
stop working. We, therefore, do not know if she voluntarily
reduced her income. In fact, at the time of the hearing, all
indications were mother was still working on Tuesdays; her work
hours had not changed prior to the hearing.
Imputation of income is used by a trial court when deciding
whether "to deviate from the presumptive amount of child
support, and 'any child support award must be based on
circumstances existing at the time the award is made.'" Saleem
v. Saleem, 26 Va. App. 384, 393, 494 S.E.2d 883, 887-88 (1998)
(quoting Sargent v. Sargent, 20 Va. App. 694, 703, 460 S.E.2d
596, 600 (1995)).
This Court set forth the parameters for imputing income in
Niemiec v. Dep't of Soc. Serv., 27 Va. App. 446, 451, 499 S.E.2d
576, 579 (1998):
When asked to impute income to a parent, the
trial court must consider the parent's
earning capacity, financial resources,
education and training, ability to secure
such education and training, and other
factors relevant to the equities of the
parents and children. See Brooks [v.
8
While father objected to the May 10, 2001 order on a
number of bases, including the court's refusal to hear testimony
on the visitation matter, he did not make an objection based on
the court's refusal to hear testimony on imputed income.
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Rogers], 18 Va. App. [585, 592, 445 S.E.2d
725, 729 (1994)] (citing Code
§ 20-108.1(B)). The burden is on the party
seeking the imputation to prove that the
other parent was voluntarily foregoing more
gainful employment, either by producing
evidence of a higher-paying former job or by
showing that more lucrative work was
currently available. See Brody [v. Brody],
16 Va. App. [647, 651, 432 S.E.2d 20, 22
(1993)]; Hur v. Virginia Dept. of Social
Services Div. of Child Support Enforcement
ex rel. Klopp, 13 Va. App. 54, 61, 409
S.E.2d 454, 459 (1991); see also Antonelli
v. Antonelli, 242 Va. 152, 154, 409 S.E.2d
117, 119 (1991). The evidence must be
sufficient to "enable the trial judge
reasonably to project what amount could be
anticipated." Hur, 13 Va. App. at 61, 409
S.E.2d at 459.
The trial court's decision here, refusing to impute income
to mother, will be upheld on appeal unless "'plainly wrong or
unsupported by the evidence.'" Sargent, 20 Va. App. at 703, 460
S.E.2d at 600 (quoting Calvert v. Calvert, 18 Va. App. 781, 784,
447 S.E.2d 875, 876 (1994)).
In the dialogue, father's counsel indicated that mother's
annual salary was $74,823.32, or $6,235.28 a month, and that
prior to the hearing, mother worked thirty-two hours per week.
If she did not work on Tuesdays, her workweek would be
twenty-four hours. Mother's counsel responded that her income
would not be "diminished" due to a better union contract,
"because she works weekends, and because she works late nights,
she gets a better deal. Essentially, she works fewer hours and
receives money." Mother's counsel further represented that she
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would be able to earn the salary "she had before, without
working Tuesdays." This proffer was not opposed by father.
The trial court instructed both counsel to prepare an order
for change of child support payments, "based upon the change of
the salary and day care elements." After a recess, counsel
returned with a figure of $533 per month, but they did not
submit any worksheets or explanation of the elements included in
the calculation of that number. 9 We do not know if the $533
figure reflected a change in income or in day care, nor do we
know the amount of change attributable to each. The informality
of the procedure leaves a woefully poor record. While father's
counsel continued to argue that income should be imputed to
mother, and the trial court indicated it would reconsider the
issue, the final order used the $533 figure.
From the above, it is not clear that wife has actually
suffered a loss of income. We, therefore, affirm the trial
court's decision not to impute income to mother. Father had the
burden to prove imputation was appropriate, see Niemiec, 27 Va.
App. at 451, 499 S.E.2d at 579, and he failed to do so.
Finally, father contends the trial court erred in assessing
attorney's fees against him as his motion was meritorious. He
argues the court failed to consider his ability to pay versus
9
The record does indicate this figure was reached after
some negotiation between the parties.
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mother's ability to pay. He also argues the fees were
unreasonable.
"An award of attorney's fees is a matter submitted to the
trial court's sound discretion and is reviewable on appeal only
for an abuse of discretion." 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 of the
circumstances." McGinnis v. McGinnis, 1 Va. App. 272, 277, 338
S.E.2d 159, 162 (1985). To promote this determination,
"evidence in the record [must] explain or justify the amount of
the award." Westbrook v. Westbrook, 5 Va. App. 446, 458, 364
S.E.2d 523, 530 (1988). "Where the trial judge finds that a fee
award is justified, evidence of time expended and services
rendered is a proper basis upon which to fix an award." Id.Although no affidavit was presented to the trial court,
mother's counsel represented to the court without objection that
her hourly fee was $200. She then set forth the time expended
for two court appearances, telephone calls, drafting documents,
etc., for a bill totaling $780. Further, the trial court found
father's motion for modification was not meritorious. Under
these circumstances, we hold that the award of counsel fees was
reasonable.
B. Medical Expenses
Father contends he should not have to reimburse mother for
the children's medical bills because she did not notify him of
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their appointments. Essentially, he maintains notification is a
condition of reimbursement. The trial court disagreed, stating,
"I do not find . . . the language of the order or the agreement
to result in a default on the right of . . . reimbursement for
the expenses incurred for these medical and dental visits." We
agree with the trial court.
"It is the firmly established law of this Commonwealth that
a trial court speaks only through its written orders." Davis v.
Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996).
Additionally, "trial courts have the authority to interpret
their own orders." Fredericksburg Constr. Co. v. J.W. Wyne
Excavating, Inc., 260 Va. 137, 144, 530 S.E.2d 148, 152 (2000).
See also Rusty's Welding Serv., Inc. v. Gibson, 29 Va. App. 119,
129, 510 S.E.2d 255, 260 (1999) (en banc). "Furthermore, when
construing a lower court's order, a reviewing court should give
deference to the interpretation adopted by the lower court."
Id.In this case, no notification language is contained in the
final decree's provisions for health care coverage and
reimbursement. Instead, notification language is found in the
consent decree, under the title, "Health." This "Health"
provision requires the parties consult one another as to "major
health decisions" and requires notification of illnesses and
medical appointments. Similarly, under the provisions entitled,
"Education," the parties are required to share information
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concerning the children's education, grades, and activities. In
the context of the consent decree, the trial court ordered the
parties to cooperate and share information concerning the
children's welfare and best interests.
Based on this record, we cannot say the trial court abused
its discretion in its interpretation of its own decree. We,
therefore, hold the notification requirement was not a condition
precedent for father's obligation to reimburse mother for the
medical expenses.
Father also argues he should be released from any
obligation to pay some of these medical bills because the
appointments were not with doctors listed by his insurance
provider. However, the trial court accepted mother's explanation
of why she took the children to these particular health care
providers, and we will not disturb that finding.
"'[T]he finding of the judge, upon the credibility of the
witnesses and the weight to be given their evidence, stands on
the same footing as the verdict of a jury, and unless that
finding is plainly wrong, or without evidence to support it, it
cannot be disturbed.'" Yates v. Commonwealth, 4 Va. App. 140,
143, 355 S.E.2d 14, 16 (1987) (quoting Lane v. Commonwealth, 184
Va. 603, 611, 35 S.E.2d 749, 753 (1945)). We cannot say the
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trial court was "plainly wrong" in accepting mother's
explanations. 10
Father also argues mother should not be reimbursed because
she did not "timely" send the medical bills to him. However, he
does not argue that he suffered any prejudice from the untimely
receipt of the bills. Nothing before the trial court indicated
father's insurance carrier would decline to pay the bills of
providers covered by the plan if the bills were not submitted in
a "timely" fashion.
Father also asks that we apply the doctrine of "unclean
hands" to this case. He argues mother's actions were improper
and, therefore, she should not benefit from her "wrongful"
behavior. Assuming, without deciding, that the unclean hands
doctrine applies to these circumstances, we do not conclude that
mother lacked "clean hands."
"[H]e who asks equity must do equity, and he who comes into
equity must come with clean hands." Walker v. Henderson, 151
Va. 913, 927-28, 145 S.E. 311, 315 (1928).
The withholding of equitable relief to
punish a wrongdoer has been approved in
other cases involving issues of family law
10
While we do not condone a trial court accepting testimony
from unsworn witnesses, father did not object to this procedure.
As the appellant in this case, he had the responsibility to
protect the parts of the record that would support his arguments
on appeal. See Davis v. Commonwealth, 35 Va. App. 533, 537, 546
S.E.2d 252, 254 (2001) ("[Appellant] has the burden to preserve
an adequate record on appeal to allow us to consider the
propriety of the trial court's actions.").
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but not where the rights of children were
prejudiced by the result. See Davis v.
Davis, 206 Va. 381, 387, 143 S.E.2d 835, 839
(1965); Gloth v. Gloth, 154 Va. 511, 555,
153 S.E. 879, 893 (1930).
Brown v. Kittle, 225 Va. 451, 457, 303 S.E.2d 864, 867 (1983).
The trial court accepted mother's explanation for her
behavior. We will not disturb this factual finding. See Yates,
4 Va. App. at 143, 355 S.E.2d at 16. Because the court found
mother was not a "wrongdoer," implicitly, she has "clean hands."
Father also argues he should not be responsible for three
of the bills, totaling $50, since they are not "extraordinary"
bills under Code § 20-108.2(D), 11 the child support guidelines
statute. The trial court rejected this argument, interpreting
its own order as including such expenses. The court opined that
the word "extraordinary" in the order referred to "charges that
are not insured, and I think they're properly recoverable."
Again, we defer to the trial court's interpretation of its
own order. See Fredericksburg Constr. Co., 260 Va. at 144, 530
11
Code § 20-108.2(D) states:
Any extraordinary medical and dental
expenses for treatment of the child or
children shall be added to the basic child
support obligation. For purposes of this
section, extraordinary medical and dental
expenses are uninsured expenses in excess of
$100 for a single illness or condition and
shall include but not be limited to
eyeglasses, prescription medication,
prostheses, and mental health services
whether provided by a social worker,
psychologist, psychiatrist, or counselor.
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S.E.2d at 152. We cannot say the trial court abused its
discretion in that interpretation.
Lastly, we address father's contention that the trial court
erred in awarding counsel fees and costs to mother. Father
argues the trial court had no authority to award fees and costs.
Essentially, father maintains that counsel fees can only be
awarded pendente lite in divorce actions, see Code § 20-103(A),
in a decree in which a divorce is "instituted or pending," see
Code § 20-79(B), or when a party is found in contempt, see
Wilson v. Collins, 27 Va. App. 411, 426, 499 S.E.2d 560, 567
(1998). Father maintains that here, given the divorce is
concluded, he must be found in contempt before the court can
assess attorney's fees against him. We disagree.
Father cites Carswell v. Masterson, 224 Va. 329, 295 S.E.2d
899 (1982), as limiting awards of attorney's fees to cases where
contempt is found. However, Carswell involved a failure of the
trial court to award fees after finding a party in contempt.
Id. at 330, 295 S.E.2d at 900. The Supreme Court explained that
trial courts may award attorney's fees in contempt proceedings
brought to enforce support and divorce decrees and remanded the
case "for such further proceedings as may be indicated." Id. at
332, 295 S.E.2d at 901. The Court did not express an opinion as
to awards in other contexts.
The more relevant case is Sullivan v. Sullivan, 33 Va. App.
743, 536 S.E.2d 925 (2000). In Sullivan, husband agreed in a
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property settlement to maintain life insurance, naming wife and
children as beneficiaries; the settlement agreement was
incorporated into a court order. Id. at 746, 536 S.E.2d at 927.
Wife filed a show cause because husband failed to maintain the
policy. Id. The trial court ordered husband to either purchase
the required life insurance policy or post a bond to insure
performance of the obligation; the court also awarded attorney's
fees to wife, without finding husband in contempt of court. Id.
at 747, 536 S.E.2d at 927. On appeal, husband contended, since
he was not specifically found in contempt, the trial court erred
in awarding attorney's fees. Id. at 752-53, 536 S.E.2d at 930.
This Court upheld the award. Id. at 753, 536 S.E.2d at 930.
As explained in Sullivan:
Judges presiding over contempt proceedings
in divorce suits have the discretion to
award counsel fees. Carswell v. Masterson,
224 Va. 329, 332, 295 S.E.2d 899, 901
(1982). The trial judge's failure to use
the word "contempt" in his order does not
alter the effect of his ruling. As in
Carswell, the wife had to resort to legal
proceedings to secure compliance with a
valid court order. In awarding legal fees,
the trial judge found that the husband
failed to perform a legal duty.
Furthermore, simply because the trial judge
ordered the husband to comply with the life
insurance provision, the alleged
impossibility of securing such a policy does
not provide a basis for establishing an
abuse of discretion by the trial judge in
awarding attorney's fees. The husband's
reliance on Wilson v. Collins, 27 Va. App.
411, 499 S.E.2d 560 (1998), does not aid his
argument because in that case we held that
the trial judge had incorrectly found a
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party in contempt and therefore could not
order that party to pay attorney's fees.
Id.The case before us is very similar to Sullivan. Mother, for
example, "had to resort to legal proceedings to secure compliance
with a valid court order," i.e., the order for father to pay
fifty percent of the children's medical expenses. Id. Here
also, the trial court found father failed to "perform a legal
duty." Id.We further note that mother's counsel submitted an affidavit
to the trial court, showing her time expended on this case. We,
therefore, conclude the trial court did not abuse its discretion
in awarding attorney's fees.
III. CONCLUSION
For the reasons stated above, we affirm the trial court's
rulings in these appeals.
Affirmed.
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