Ronald P. Dick v. Jean A. Dick ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Duff*
RONALD P. DICK
MEMORANDUM OPINION **
v. Record No. 0966-01-2 PER CURIAM
OCTOBER 30, 2001
JEAN A. DICK
FROM THE CIRCUIT COURT OF HANOVER COUNTY
John Richard Alderman, Judge
(Fredrick S. Kaufman; Nachman & Kaufman,
L.L.P., on brief), for appellant.
(John H. Goots; Chenault & Witmeyer, PLC, on
brief), for appellee.
Ronald Dick contends the trial judge erred in: (1) finding
his minor child's need for private military education a material
change of circumstances; and (2) failing to reduce to writing the
deviation from the presumptive guidelines amount. Upon reviewing
the record and briefs of the parties, we summarily affirm the
decision of the trial court. See Rule 5A:27.
BACKGROUND
On May 24, 1994, the trial judge entered an order requiring
father to pay $100 per month in child support for the parties'
*
Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
**
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
son. Justin was born on July 3, 1988. On June 2, 2000, Jean
Dick, the mother, filed a motion to increase child support based
on a material change of circumstances. A written statement of
facts recites the evidence educed at a hearing on mother's
motion.
The evidence proved that the father has an annual salary of
$36,000 to $37,000 per year, and he receives military disability
of $188 per month. The mother earns between $94,000 and $95,000
annually.
The mother testified that she had experienced several
problems with their son during the 1997-98 school year, when he
was in the fourth grade. He exhibited an uncaring attitude; he
had stolen money from her purse to buy firecrackers; he had
problems arguing with children in the neighborhood; and he
received grades that were not consistent with his intellectual
ability. The evidence established that the son's grades greatly
improved while he was "under strict supervisory status at school
and receiving one-on-one teaching"; however, the school could
not offer that type of individualized structure "on a regular
basis." His teachers, counselor and mother made a "joint
decision" to look into private schooling. The mother said that
although she advised the father numerous times about their son's
problems and the need for private school, the father disagreed
for financial reasons. She also testified that the son was
- 2 -
doing well at the military academy he now attends. He made "A's
and B's in every subject" and "had an excellent conduct rating."
The father testified that he was aware that his son had
been attending military school. He testified, however, that he
was not aware of any problems his son was having at school and
he had no input in the decision to enroll him in a military
school. The father admitted that his son's public school
performance had declined. He also indicated that his son
advised him that he was doing well at military school. The
statement of facts indicates the trial judge ruled, in part, as
follows:
After hearing the evidence and
reviewing the factors enumerated in Solmond
[sic] v. Ball, 22 Va. App. 385 (1996),
specifically, that the school could not
provide the one-on-one assistance that the
child needed; the child's special emotional
needs; and each parents [sic] ability to
pay, the Court found that based upon the
parties [sic] current income the [father]
would owe a duty of child support in the
amount of $210.00. However, the Court
further found that a deviation was
appropriate in this instance and that
[father] would be responsible for 27% of the
child's tuition, that being in the amount
[of] $360.00. The Court ordered a total
award of monthly support in the amount of
$570.00.
The statement of facts also recites that the trial judge
recalled that "[n]o objections were noted by either party." The
father's attorney signed the final order underneath the word
"SEEN." No objections were noted or specified.
- 3 -
"The Court of Appeals will not consider an argument on
appeal which was not presented to the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998);
see also Rule 5A:18. The purpose of this rule is to ensure that
the trial judge and opposing party are given the opportunity to
intelligently address, examine, and resolve issues in the trial
court, thus avoiding unnecessary appeals. See Lee v. Lee, 12
Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc); Kaufman
v. Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4 (1991).
The record does not indicate that the father raised any of the
present arguments in the trial court. He signed the order
"seen," without noting an objection. His arguments are
therefore procedurally barred on appeal by Rule 5A:18.
Moreover, the evidence proved the child was having problems
in public school that could be and were solved through private
schooling. The record also indicates that the trial judge
considered the factors in Solomond v. Ball, 22 Va. App. 385,
391, 470 S.E.2d 157, 160 (1996). Therefore, the record does not
reflect any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18. Accordingly, we summarily affirm the
order.
Affirmed.
- 4 -