Louis John Swallow, Jr. v. Urbieta A. Swallow ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Bumgardner
LOUIS JOHN SWALLOW, JR.
MEMORANDUM OPINION*
v. Record No. 0503-07-4 PER CURIAM
AUGUST 7, 2007
URBIETA A. SWALLOW
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
(Edward V. O’Connor, Jr.; Pamela M. Pacetti; Edward V.
O’Connor, Jr., P.C., on brief), for appellant.
(John K. Cottrell; Gannon & Cottrell, P.C., on brief), for appellee.
Louis Swallow, husband, appeals from the circuit court’s final decree of divorce entered
on January 26, 2007. He argues on appeal that the trial court erred in (1) imputing income to
him; (2) awarding two paintings to his son, Jack Swallow; and (3) considering attorney’s fees
incurred in the juvenile and domestic relations district court (juvenile court).1 Upon reviewing
the record and the 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.
BACKGROUND
Husband and wife were married on April 29, 1987, and separated on March 7, 2003. One
child was born of the marriage, and all issues relating to child custody and visitation were
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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Husband withdrew his appeal regarding the reservation of the right to spousal support
and the finding of contempt of court.
adjudicated by prior juvenile court orders. On January 3, 8, and 16, 2007, the trial court heard
evidence ore tenus.
In its final order, the trial court granted wife a divorce a vinculo matrimonii on the basis
of cruelty and ordered that husband pay monthly child support in the amount of $386 beginning
February 16, 2007. Pursuant to wife’s stipulation, the court awarded husband certain personal
property. The court awarded wife the remaining personal property “with the exception of the
paintings designated as the property of the son.” The trial court awarded wife $20,000 in
attorney’s fees.
IMPUTATION OF INCOME
Husband contends the trial court imputed income to him without “proper evidence
concerning his ability to earn and evidence of available jobs.”
On appeal, we view the evidence and all reasonable inferences in the light most favorable
to the appellee as the prevailing party below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990). Husband’s resume showed that he earned a Bachelor of Arts degree
in economics from Northwestern University in 1980, he speaks Spanish and Filipino in addition
to English, and he possesses computer skills. Husband also indicated in his resume that he had
been a moving consultant with Global Van Lines and United Van Lines from 1989 through 1993,
which employment included his being a sales manager for sixteen counties. From 1994 until
2000, he “[m]anaged $150 - 180,000 [s]ales [t]erritories independently” for the National
Federation of Independent Business (NFIB), and in 2001, he worked again for United Van Lines.
Husband’s 1996 W-2 form reflected his salary with NFIB as $51,838.92, and he testified
that his annual salary with United Van Lines in 2001 was $40,000. From October 2001 until
2005, husband worked sporadically at low-paying or part-time positions. In 2005, husband
began working part-time for a Republican Party program called “National Write Your
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Congressman,” where he earned $7 per hour. Records submitted at the hearing reflected that
husband worked 28 hours for the two-week period from September 17 through September 30,
2006, earning $196 plus a bonus of $170.75. From October 1 through October 21, 2006,
husband earned $509.25 plus a bonus of $831.25, for total earnings of $1,340.50. From October
25 until November 4, 2006, husband earned $390.25 in salary and $1,085.25 in bonuses, totaling
$1,475.50.
In determining the parties’ respective child support obligation, the trial court used $6,446
as wife’s monthly income. As to husband, the trial court found that husband is well-educated,
however, “he has a very problematic work history.” It found husband has been and is presently
underemployed because he has chosen to work part-time despite wife’s “urging him to try to
find” more substantial, full-time employment. If husband worked full-time, the trial court found
his monthly salary would be $3,385, at a minimum, and it imputed that amount to him.
Income may be imputed “to a party who is voluntarily unemployed or voluntarily
underemployed.” Code § 20-108.1(B)(3). “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.” Niemiec v. Commonwealth, 27 Va. App. 446, 451, 499 S.E.2d 576, 579
(1998). Unless the trial judge misapplies the legal standard or misallocates the burden of proof,
the question “‘[w]hether a person is voluntarily unemployed or underemployed is a factual
determination,’” O’Hara v. O’Hara, 45 Va. App. 788, 798, 613 S.E.2d 859, 864 (2005) (quoting
Blackburn v. Michael, 30 Va. App. 95, 102, 575 S.E.2d 780, 784 (1999)), one firmly placed
“within the [sound] discretion of the trial court . . . ,” Sargent v. Sargent, 20 Va. App. 694, 704,
460 S.E.2d 596, 601 (1995). Employing the most deferential standard of appellate review, we
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reverse factual findings “only if plainly wrong or not supported by credible evidence.” Budnick
v. Budnick, 42 Va. App. 823, 841, 595 S.E.2d 50, 59 (2004).
The trial judge considered evidence of husband’s education, training, and experience, the
lack of any physical or mental impairment preventing him from working at his full capacity, his
prior history of full-time employment, his salary at those jobs, and his decision to forego
full-time employment for part-time employment at a rate not consistent with his background or
prior earning capacity. From 1994 until 2001, husband earned a minimum of $40,000 per year,
or $3,333 per month.
Using the figures presented at the hearings, if husband worked full-time at $7 per hour at
the job he chose to pursue, he could earn $14,560 per year, or $1,280 per month in salary.
Moreover, he earned a $1,085.25 bonus for a thirteen-day period from October 25, 2006 until
November 4, 2006, thus, he could earn a bonus of $2,170.50 for a full month. The combined
amount of monthly salary and bonuses projected for full-time employment would then total
$3,450 per month ($1,280 + $2,170), an amount $65 more than the amount the trial court
imputed to husband. This calculation, coupled with husband’s pre-2002 income history,
supports the trial court’s finding that husband was voluntarily underemployed and its decision to
impute monthly income of $3,385 to husband. That finding and decision are supported by
credible evidence and were not plainly wrong. See Budnick, 42 Va. App. at 841, 595 S.E.2d at
59; but cf. Niemiec, 27 Va. App. at 451-53, 499 S.E.2d at 579-80 (finding insufficient evidence
mother was underemployed where the statement of facts failed to show she left or ever had a
higher paying position or to quantify the “significant compensation” she received as a part-time
daycare provider). Accordingly, we cannot say the trial court committed reversible error.
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FAILURE TO AWARD HUSBAND “CERTAIN ITEMS OF PERSONAL PROPERTY”
At the hearing, wife testified that her father painted two portraits of the parties’ son, Jack,
and gave them to her son as gifts. On cross-examination, wife conceded she and husband bought
the materials for her father, however, he received no compensation for his work.
In his written objections to the final decree, husband contended the court “erred in
awarding the paintings to the Jack [sic], the son of the parties.” In his brief, husband makes two
specific arguments not made at the hearing: (1) the paintings of the son “are clearly marital
property”; and (2) there was insufficient evidence to support the trial court’s determination that
the paintings were Jack’s property, namely, a gift. The record fails to show that husband made
either of these specific arguments to the trial court.
Rule 5A:18 requires that objections to a trial court’s action or ruling be made with
specificity in order to preserve an issue for appeal. See Campbell v. Commonwealth, 12
Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc). A trial court must be alerted to the precise
issue to which a party objects. See Neal v. Commonwealth, 15 Va. App. 416, 422-23, 425
S.E.2d 521, 525 (1992). Because the requirements of Rule 5A:18 have not been met, we will not
consider this question on appeal.
Although Rule 5A:18 allows exceptions for good cause or
to meet the ends of justice, appellant does not argue that we should
invoke these exceptions. See e.g., Redman v. Commonwealth, 25
Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
oneself of the exception, a defendant must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might
have occurred.” (emphasis added)). We will not consider, sua
sponte, a “miscarriage of justice” argument under Rule 5A:18.
Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).
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IN AWARDING ATTORNEY’S FEES, TRIAL COURT ERRONEOUSLY
CONSIDERED ATTORNEY’S FEES INCURRED IN JUVENILE COURT
Wife filed for divorce in October 2004. The manuscript record from the trial court shows
that wife had to file motions in the trial court in March, August, and December 2006 to compel
husband to file required papers and comply with discovery. Wife also had to file a show cause
motion because husband failed to pay child support, and she had to defend against husband’s
unsuccessful motion to enter the marital residence.
At the January 2007 ore tenus hearing, wife testified, without objection, that she incurred
attorney’s fees in juvenile court for successfully challenging husband’s motion for joint custody.
Wife also testified, without objection, that she moved for a protective order in September 2006,
for which she incurred attorney’s fees. The trial court admitted, without objection, an affidavit
of attorney’s fees from wife’s attorney and detailed statements listing legal work and fees
incurred from February 1, 2006 until January 1, 2007. The total of those fees amounted to
$51,854.98. To that amount, wife’s attorney added $3,500 in fees incurred by her prior attorney,
thus making the total $55,354.98.
In awarding wife attorney’s fees, the trial court found “because of the significant need for
[wife] to have to come back and forth to court, that an award of attorney’s fees in the amount of
$20,000 would be appropriate.”
In his written objections to the final decree, husband argued the trial court “abused its
discretion in awarding $20,000 in attorney’s fees to the [wife] without determining whether the
[husband] had the ability to pay and whether the attorney’s fees were reasonable and necessary,
especially since the statement of the attorney’s fees involved two distinct cases.” Thus,
husband’s objection(s) involved the reasonableness and necessity of the attorney’s fees and the
failure to examine his inability to pay.
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In his brief, husband points to seven entries out of nearly two hundred in wife’s
attorney’s financial statements that mentioned juvenile court appearances or preparation that
took place after wife filed her bill of complaint. However, husband failed to point them out at
trial or argue that the trial court should eliminate and not consider any fees relating to juvenile
court proceedings. Moreover, husband never objected to the admission of the documents setting
forth and itemizing wife’s attorney’s fees.
Rule 5A:18 requires that objections to a trial court’s action or ruling be made with
specificity in order to preserve an issue for appeal. See Campbell, 12 Va. App. at 480, 405
S.E.2d at 2. A trial court must be alerted to the precise issue to which a party objects. See Neal
v. Commonwealth, 15 Va. App. 416, 422-23, 425 S.E.2d 521, 525 (1992). Because the
requirements of Rule 5A:18 have not been met, we will not consider this question on appeal.
Moreover, because the seven enumerated references to juvenile court amounted, at most, to fees
totaling less than $4,000 out of the $55,000 in attorney’s fees, the record does not reflect any
reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.
For these reasons, we summarily affirm the decision of the trial court. See Rule 5A:27.
Affirmed.
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