Carlo Maria Gaione v. Martha Fergusson Gaione ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Bray
CARLO MARIA GAIONE
MEMORANDUM OPINION *
v. Record No. 1315-02-2 PER CURIAM
NOVEMBER 19, 2002
MARTHA FERGUSSON GAIONE
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
(J.W. Harman, Jr.; Harman & Harman, P.C., on
brief), for appellant.
(Donald K. Butler; Mary Beth Joachim; Morano,
Colan, Cook & Butler, on brief), for
appellee.
On appeal, Carlo Maria Gaione (father) contends the trial
court erred in awarding Martha Fergusson Gaione (mother) sole
custody of their children. He also contends the trial court erred
in using the sole custody guidelines to determine child support.
Upon reviewing the record and the parties' briefs, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the decision of the trial court. Rule 5A:27.
BACKGROUND
On appeal, "we view the evidence and all reasonable
inferences in the light most favorable to the prevailing party
below . . . . 'The burden is on the party who alleges reversible
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
error to show by the record that reversal is the remedy to which
he is entitled.'" Lutes v. Alexander, 14 Va. App. 1075, 1077, 421
S.E.2d 857, 859 (1992) (citation omitted).
The parties were married on May 5, 1991, and they separated
on April 26, 1999. Two children were born of the marriage.
On March 1, 2002, the trial court heard evidence regarding
custody and support. Melody Podraza, a licensed clinical social
worker, testified that she has been the "treating therapist" for
both children since the parties separated in 1999. Throughout
therapy, mother demonstrated "ongoing consistent involvement,"
whereas father exhibited less consistency, in what Podraza
described as "a pattern of involvement, and then he wasn't there,
and involvement, and then he wasn't there."
Mother testified that she was the primary caregiver for the
children, arranging activities, appointments, transportation and
childcare. The trial court admitted, without objection, a
document prepared by mother entitled "Parenting History." In it,
mother recorded events and/or situations from 1998 until 2002
involving father's activities and his relationship with the family
and the children. She used this document to demonstrate father's
lack of involvement and/or poor judgment.
At the conclusion of the hearing, the trial court determined
the parties "are at loggerheads on three issues that I don't
believe would be conducive to joint custody." Those issues
- 2 -
involved after school daycare, the presence of father's paramour,
Kate, and a lack of communication between father and mother.
Before the March 1st hearing adjourned, father added:
Your Honor, I'd like to mention a couple of
things very briefly. First of all, if my
computation's correct, the current
visitation schedule would be about 114 days
a year for Mr. Gaione, so that would throw
us firmly into the shared custody
guidelines.
In a March 6, 2002 letter addressed to the parties, the trial
court advised, inter alia, "Based on the guidelines, child support
will be $1,117.00 for three months and $1,255.00 thereafter."
In a March 11, 2002 motion to reconsider, father contended he
spent "114 days per year with the children" and that the trial
court failed to use the shared custody guidelines or, in the
alternative, to state a reason for deviating from that presumed
amount. Father attached a child support worksheet, which
purportedly calculated father's child support obligation under
shared custody figures at a lower figure. Without elaboration,
the trial court indicated in a one-sentence letter dated April 4,
2002, "I will stand by my original rulings on custody and child
support."
The final decree of divorce entered on May 9, 2002, contains
the following statement: "Upon the evidence presented and it
appearing to be in the best interests of the children, it is
hereby ORDERED that sole custody of the children is awarded to
[mother]." The trial court ordered father to pay child support
- 3 -
in the amount of $1,117 per month from March 1, 2002 until May
31, 2002, and $1,255 per month thereafter.
CUSTODY
On appeal, father contends the trial court "failed to
consider all the factors when reaching its decision regarding
custody." He argues that Code § 20-124.3
lists ten factors for the Court's
consideration. The tenth refers to "other
factors as the Court deems necessary and
proper." In this case the Court makes no
findings and makes no reference to these
factors at all.
After the March 1, 2002 ore tenus hearing, father moved the
trial court to reconsider its oral decision to give wife sole
custody of the children. In support, father contended there
were only a few issues "on which the parties have not been able
to reach agreement," and "there is no evidence that they would
be unable to agree on other such issues in the future." Later,
father filed the following objections to the final decree:
For the reasons stated in the Motion to
reconsider filed with the Court in the
captioned matter, the defendant OBJECTS to
those provisions [o]f the Final Decree which
(1) grant sole legal custody of the children
. . . to the [mother] and which (2) provide
for child support to be paid in something
other than the amount prescribed by the
shared custody child support guidelines
without any written justification for such
deviation . . . .
Rule 5A:18 requires that objections to a trial court's
action or ruling be made with specificity in order to preserve
- 4 -
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).
The record fails to indicate that father made the argument
in the trial court that he now raises on appeal. Moreover,
because the trial court stated that its award of custody was
based on the evidence presented and the best interests of the
children, and because the evidence presented by mother and
Podraza related to the enumerated factors in Code § 20-124.3 and
supported the trial court's sole custody award to mother, the
record does not reflect any reason to invoke the good cause or
ends of justice exceptions to Rule 5A:18.
CHILD SUPPORT
Code § 20-108.2(G) sets forth formulas to calculate the
presumptively correct amount of support for three different
factual scenarios: sole custody, split custody, and shared
custody. "There shall be a rebuttable presumption in any
judicial or administrative proceeding for child support,
including cases involving split custody or shared custody, that
the amount of the award which would result from the application
of the guidelines set out in § 20-108.2 is the correct amount of
child support to be awarded." Code § 20-108.1.
- 5 -
The final decree provided that father "shall have
visitation with the minor children from Sundays at noon through
Tuesday mornings when the children shall be returned to their
mother or to school." In addition, father "shall have two
nonconsecutive weeks of Summer visitation."
Code § 20-108.2(G)(1) sets forth the procedure for
calculating child support under the sole custody guidelines.
Code § 20-108.2(G)(3)(a) sets forth the procedure for
calculating child support in shared custody situations "[w]here
a party has custody or visitation of a child or children for
more than ninety days of the year."
The record fails to contain the child support guidelines
worksheet used to determine child support or indicate upon what
basis (sole or shared custody) the trial court calculated the
award. However, assuming it was prepared under the sole custody
guideline, the evidence fails to show that the shared guidelines
applied.
For the purposes of [Code § 20-108.2], "day"
means a period of twenty-four hours;
however, where the parent who has the fewer
number of overnight periods during the year
has an overnight period with a child, but
has physical custody of the shared child for
less than twenty-four hours during such
overnight period, there is a presumption
that each parent shall be allocated one-half
of a day of custody for that period.
Code § 20-108.2(G)(3)(c). Under Ewing v. Ewing, 21 Va. App. 34,
37, 461 S.E.2d 417, 418 (1995) (en banc), a "day" is defined as
- 6 -
"any continuous twenty-four hour period," and does not include
periods when the child "'is attending school, is placed in
non-parent day care, or placed with a third party.'"
Although the children spend two nights a week with father
in addition to fourteen days in the summer, because they have
school on Mondays, father cannot be credited with any continuous
twenty-four hour periods during the school year for those two
overnight visits. Assuming the children attend school for nine
months (thirty-seven weeks), the father would accrue
seventy-four overnight visits. However, crediting each of those
non-continuous twenty-four hour periods as a half-day, see Code
§ 20-108.2(G)(3)(c), would result in a total of thirty-seven
days of custody during the academic year. Assuming there was no
school or daycare in the summer, the most father could hope to
accrue in the summer would be twenty-six days during thirteen
weeks of summer vacation. Adding those days in the fifty-week
period that father has custody (thirty-seven days + twenty-six
days = sixty-three days) with the two-week summer vacation
(fourteen days) would amount to a total of seventy-seven days,
well below the ninety-day minimum required for application of
the shared custody guidelines. Because the record demonstrates
that father has less than ninety days of custody, as "day" is
defined under the statute, the trial court did not err in
calculating child support.
- 7 -
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
- 8 -