Dee Edward Newland v. Georgeen M. Newland ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia
DEE EDWARD NEWLAND
MEMORANDUM OPINION * BY
v. Record No. 1837-96-4 JUDGE WILLIAM H. HODGES
APRIL 8, 1997
GEORGEEN M. NEWLAND
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Thomas A. Fortkort, Judge
Mary M. Benzinger (Benzinger & Benzinger,
P.C., on brief), for appellant.
Yvonne DeBruyn Weight for appellee.
Dee Edward Newland (husband) appeals the decision of the
circuit court setting child and spousal support payable to
Georgeen M. Newland (wife) and deciding other issues. Husband
contends the trial court erred by (1) including private school
tuition in the calculation of child support; (2) including child
care expenses in the calculation of child support; (3) using the
Fairfax County pendente lite child support guidelines without
examining their appropriateness and husband's ability to pay; (4)
failing to impute $26,000 in income to wife; (5) failing to
properly consider the tax consequences associated with the
parties' pension accounts when valuing these accounts and
ordering husband to pay $1,000 a month to equalize the assets;
(6) including post-separation contributions to the retirement
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
account as part of the marital share; (7) excluding from the
marital estate $10,000 transferred by wife to child; (8)
summarily denying husband's motion to reconsider and motion for
clarification; (9) entering an order which did not reflect its
ruling concerning the sale and wife's occupancy of the marital
residence; and (10) entering an order which did not properly
reflect its ruling concerning husband's payment of $1,000 in
dissipated marital assets. Finding no error, we affirm.
Child Support (Issues One through Three)
Decisions concerning child support rest within the sound
discretion of the trial court and will not be reversed on appeal
unless plainly wrong or unsupported by the evidence. See Young
v. Young, 3 Va. App. 80, 81, 348 S.E.2d 46, 47 (1986). The
parties presented conflicting evidence as to whether husband
agreed to the child's enrollment in private school. However,
under a previously entered order, wife had authority to make
independent decisions concerning the children's schooling.
Husband was aware of wife's choice, and husband attended school
functions after the child's enrollment in September 1995. At the
time of the April 1996 hearing, the child was nearing completion
of his first year at the school.
Solomond v. Ball, 22 Va. App. 385, 392, 470 S.E.2d 157, 160
(1996), cited by husband, is distinguishable from the facts in
this case. There, we reversed as improper the trial court's use
of a prospective escalation provision designed to increase child
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support to pay for tuition upon the children's transfer from one
private school to another with a "'considerably higher'" tuition.
Id. Here, father apparently objected to payment for, but not
enrollment in, a parochial school with an estimated tuition of
$2,500.
Viewed in the light most favorable to wife as the prevailing
party below, the evidence demonstrated that husband did not
oppose the choice of the private school, although he may have
voiced other objections. Husband presented no evidence that
enrollment in the parochial school was not in the child's best
interests. Therefore, we cannot say the trial court's decision
to include the cost of tuition in the calculation of child
support was plainly wrong or unsupported by the evidence.
We also find no error in the court's election to include
child care as part of wife's "work-related" expenses. Although
wife was unemployed, she was actively seeking new employment and
interviewing for new positions. She presented credible evidence
that she needed to continue to pay day-care costs to maintain the
children's places in the facility. By maintaining day-care, she
could accept any job offers immediately. Under these facts, we
find this child care cost a legitimate one which was incurred due
to employment. Code § 20-108.2(F).
Husband alleges that the trial court erred by using the
Fairfax County pendente lite guidelines to calculate support. In
his exception before the trial court, husband asserted that use
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of the guidelines was "inappropriate and does not provide
[husband] with enough funds with which to live and does not fully
consider [husband's] ability to pay." On appeal, husband
contends that the pendente lite guidelines violate the statutory
scheme set out in Code §§ 20-107.1 and 20-108.2. We find no
evidence this argument was raised before the trial court and we
will not address it for the first time on appeal. Rule 5A:18.
The parties presented evidence concerning their respective
incomes and expenses. Husband does not contend that the court
erred in finding that his monthly income was $10,667. We find no
support for husband's claim that the court failed to consider his
ability to pay support.
Imputed Income (Issue Four)
Wife testified that her last salary was $26,000. There was
no evidence that wife was voluntarily underemployed or
unemployed. In fact, wife's evidence indicated that she was
actively seeking comparable employment. Husband presented no
evidence to the contrary. Wife did not appeal the court's
decision to impute income.
"The judgment of the trial court concerning the extent to
which the wife's earning capacity should affect spousal and child
support awards will not be set aside unless it appears from the
evidence that such judgment is plainly wrong or without evidence
to support it." Kaufman v. Kaufman, 7 Va. App. 488, 494, 375
S.E.2d 374, 377 (1988). Evidence supported the court's decision
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to impute some income to wife, but it was not required to impute
income dollar for dollar. Therefore, we cannot say that the
trial court's decision to impute $20,000 to wife was plainly
wrong or unsupported by the evidence.
Tax Consequences (Issue Five)
Contrary to husband's assertion, the trial court indicated
that it considered the tax consequences before reaching its
decision on the method of distributing the parties' marital
assets. Having considered the consequences, it was not required
to frame its ruling to minimize or eliminate all negative tax
consequences to husband. Code § 20-107.3(E). Therefore, we find
no reversible error.
Post-Separation Assets (Issue Six)
Credible evidence supports the trial court's valuation of
the parties' marital assets. As the court's finding is supported
by the evidence, i.e., the evidence and figures presented by wife
to the court, husband has failed to demonstrate reversible error.
Gift to Child (Issue Seven)
Evidence supported the trial court's conclusion that the
transfer of $10,000 to an account for the parties' younger child
paralleled a similar transfer made for the parties' older child.
Wife testified that the money was held for educational purposes.
Husband presented no evidence to the contrary. There was no
evidence that the transferred funds were used for improper
purposes. See Clements v. Clements, 10 Va. App. 580, 586, 397
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S.E.2d 257, 261 (1990); Booth v. Booth, 7 Va. App. 22, 27, 371
S.E.2d 569, 572 (1989). The trial court found credible wife's
testimony that the money was a gift to the child, and its
findings will not be reversed on appeal. Therefore, we find no
reversible error in the court's decision to exclude the gift from
the marital assets.
Motions to Reconsider and for Clarification (Issue Eight)
Husband contends the trial court erred by summarily denying
his motions to reconsider and for clarification. Husband
retained new counsel after completion of the ore tenus hearing,
final argument, and entry of the final decree. Whether to grant
husband's motions for reconsideration and clarification was a
matter within the sound discretion of the trial court. See
Morris v. Morris, 3 Va. App. 303, 307, 349 S.E.2d 661, 663
(1986). We find no abuse of discretion in the denial of
husband's motions to reopen the matter after both parties had
ample opportunity to present evidence and argument.
Alleged Errors in Order (Issues Nine and Ten)
"A court of record speaks only through its written orders."
Hill v. Hill, 227 Va. 569, 578, 318 S.E.2d 292, 297 (1984). We
find no significant variation from the court's oral ruling and,
therefore, see no need to correct any alleged clerical mistakes
concerning wife's occupancy of the marital residence. Similarly,
because husband was required to make fifty-three monthly payments
of $1,000, we find no merit in husband's challenge to the
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repayment of the dissipated $1,000 as the first rather than the
last payment.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
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