Edwin Eugene Gelletly v. Elana H. Gelletly ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Baker and Elder
EDWIN EUGENE GELLETLY
MEMORANDUM OPINION *
v. Record No. 0782-97-2 PER CURIAM
DECEMBER 16, 1997
ELANA H. GELLETLY
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
(Larry A. Pochucha; Brenner, Dohnal,
Evans & Yoffy, P.C., on briefs), for
appellant.
(Denis F. Soden; Eileen A. Smith; Spinella,
Owings & Shaia, on brief), for appellee.
Edwin Eugene Gelletly (husband) appeals the decision of the
circuit court denying his motion to terminate spousal support
paid to Elana H. Gelletly (wife). Wife did not appeal the
circuit court's denial of her motion to increase spousal support.
Husband contends that the trial court erred by (1) failing to
impute income to wife; (2) imputing income to husband; (3)
failing to reduce or terminate spousal support payments to wife;
and (4) failing to find wife in civil contempt. 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.
These parties previously have appeared before this Court.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
See Gelletly v. Gelletly, Record No. 1127-95-2 (Va. Ct. App. Jan.
23, 1996). Under the doctrine of the law of the case, the
parties are bound by this Court's previous determinations.
Where there have been two appeals in the same
case, between the same parties, and the facts
are the same, nothing decided on the first
appeal can be re-examined on a second appeal.
Right or wrong, it is binding on both the
trial court and the appellate court, and is
not subject to re-examination by either.
Steinman v. Clinchfield Coal Corp., 121 Va. 611, 620, 93 S.E.
684, 687 (1917). Therefore, legal and factual conclusions
previously reached are not subject to review in this appeal.
Imputation of Income to Wife
Husband contends that the trial court erred by failing to
impute adequate income to wife. The trial court found that wife
misled the court during a 1995 hearing when she failed to inform
the court that she had obtained a full-time job earning $24,243.
The court found that wife's explanations for her 1995 testimony
lacked credibility and gave little weight to wife's current
income and expense statement.
Nonetheless, the court found there was insufficient evidence
to support the conclusion that it should impute income to wife at
the rate she earned during the one month she held the full-time
position. The evidence demonstrated that the quality of wife's
work was unsatisfactory and that she did not successfully
complete the probationary period. While husband argued that wife
lost her full-time position due to misconduct, the trial court
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found insufficient evidence that it was wife's misconduct that
caused her to lose the job. Because the court's finding is
supported by evidence, we will not disturb it on appeal.
Moreover, the trial court was entitled to determine what
weight to afford the testimony of husband's expert witness. The
expert opined that wife was qualified to earn approximately
$18,000 to $22,000 annually based in part on the managerial
experience she acquired in the full-time position, even though
she lost the job due to poor performance. "It is well
established that the trier of fact ascertains a witness'
credibility, determines the weight to be given to their
testimony, and has the discretion to accept or reject any of the
witness' testimony." Street v. Street, 25 Va. App. 380, 387, 488
S.E.2d 665, 668 (1997) (en banc).
Based upon the evidence which the court found did not
demonstrate a material change in circumstances, we find no error
in the trial court's decision to impute income to wife at her
previous salary scale of $6.00 an hour rather than $24,243
annually.
Imputation of Income to Husband
Husband contends that the trial court erred by imputing
income to him in the amount of $85,000. In the previous appeal,
we affirmed the trial court's finding that husband was capable of
earning $85,000 annually. That finding became the law of the
case, modifiable only upon a showing of a material change in
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circumstances. See Steinman, 121 Va. at 620, 93 S.E. at 687.
Upon husband's new motion to terminate spousal support, the
trial court found husband's testimony unreliable and ruled that
husband failed to prove a material change in circumstances since
the last hearing. "The weight which should be given to evidence
and whether the testimony of a witness is credible are questions
which the fact finder must decide." Bridgeman v. Commonwealth, 3
Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). In light of the
court's finding that the parties failed to demonstrate a material
change in circumstances, we find no error in the trial court's
decision to continue to impute income to husband at the level
previously adjudicated.
Denial of Motion to Reduce or Terminate Spousal Support
Husband contends that the trial court erred when it denied
his motion to reduce or terminate spousal support. As the party
seeking a modification of spousal support, husband was required
to prove a material change in circumstances since the last
hearing and that the change warranted a modification of support.
See Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383
S.E.2d 28, 30 (1989). The trial court found that neither party
presented credible evidence. Husband failed to substantiate his
assertion that there had been a material change in circumstances
since the last hearing. We will not disturb the credibility
determinations made by the trial court, nor will we reverse its
findings of fact based upon the record.
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Civil Contempt
Finally, husband contends that the trial court erred by
failing to hold wife in contempt of court for her testimony in
the 1995 hearing. 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) (quoting Carswell
v. Masterson, 224 Va. 329, 332, 295 S.E.2d 899, 901 (1982)).
"Civil as distinguished from criminal
contempt is a sanction to enforce compliance
with an order of the court or to compensate
for losses or damages sustained by reason of
noncompliance. . . . Since the purpose is
remedial, it matters not with what intent the
defendant did the prohibited act. The decree
[is] not fashioned so as to grant or withhold
its benefits dependent on the state of mind
of respondents. . . ."
Leisge v. Leisge, 224 Va. 303, 309, 296 S.E.2d 538, 541 (1982)
(quoting McComb v. Jacksonville Paper Co., 336 U.S. 187, 191
(1949)). Whether to find a party in contempt is left to the
discretion of the trial court, whose determination will not be
reversed on appeal absent abuse. Husband has not demonstrated
that the trial court abused its discretion by failing to hold
wife in civil contempt.
Accordingly, the decision of the trial court is summarily
affirmed.
Affirmed.
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