Olga Lukashevsky v. Igor Bakhir ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
OLGA LUKASHEVSKY
MEMORANDUM OPINION *
v. Record No. 2957-01-4 PER CURIAM
APRIL 2, 2002
IGOR BAKHIR
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Judge
(Olga Lukashevsky, pro se, on brief).
No brief for appellee.
Olga Lukashevsky (wife) appeals the decision of the circuit
court finding her in contempt for failing to pay court-ordered
child support to Igor Bakhir (husband). On appeal, wife contends
the trial court erred by (1) finding the evidence sufficient to
hold her in contempt, and (2) refusing to allow her to present the
testimony of three witnesses concerning her inability to pay.
Upon reviewing the record and opening brief, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
decision of the trial court. See Rule 5A:27.
Procedural Background
Husband and wife separated on or about July 1, 2000. On
February 5, 2001, the juvenile and domestic relations district
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
court awarded husband custody of the couple's minor child. In a
May 18, 2001 pendente lite order, the circuit court ordered wife
to pay husband $159 monthly child support. When wife refused to
make any payments, husband filed a petition for rule to show
cause. After hearing arguments, the circuit court, on September
28, 2001 found wife in contempt of court.
The evidence presented at the hearing demonstrated wife
voluntarily left her employment in the metropolitan Washington
area where she was earning $64,000 annually as a computer
programmer. Wife moved to Louisiana and claimed that because her
Federal Immigration and Naturalization Service records had not
been forwarded to that state she was unable to work. Wife
provided no documentary proof to support her contentions. Husband
testified wife stated she disagreed with the child support order
and would not pay him. The hearing on September 28, 2001 had been
continued from September 21, 2001. Wife did not subpoena
witnesses to testify on her behalf at the hearing.
Analysis
I.
"Willful disobedience to any lawful . . . order of court is
contempt and . . . punishable as such." Board of Supervisors v.
Bazile, 195 Va. 739, 745, 80 S.E.2d 566, 571 (1954). "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
- 2 -
S.E.2d 666, 669 (1991) (citation omitted). "On appellate review
of this issue, we may reverse the ruling of the trial court only
if we find that it abused its discretion." Barnhill v. Brooks,
15 Va. App. 696, 704, 427 S.E.2d 209, 215 (1993). The trial
court found wife voluntarily left her job. Wife told husband
she was unwilling to pay the support she owed. The trial court
stated it believed husband's testimony over wife's testimony.
"The credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995). The trial court found wife voluntarily and
willfully refused to obey its order. We cannot conclude, based
on the evidence in this record, that the trial court abused its
discretion.
II.
"On appeal, the judgment of the trial court is presumed
correct. The burden is on the party who alleges reversible
error to show by the record that reversal is the remedy to which
he is entitled." Johnson v. Commonwealth, 12 Va. App. 391, 396,
404 S.E.2d 384, 387 (1991) (citation omitted). "The burden is
upon the appellant to provide us with a record which
substantiates the claim of error. In the absence thereof, we
will not consider the point." Jenkins v. Winchester Dep't of
Social Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991).
- 3 -
Where we do not have the benefit of a transcript of the
proceedings, we can consider only that which is contained in the
written statement signed by the trial judge. See id. There is
no transcript in this appeal, and the written statement of facts
provided by the trial court is limited.
Wife alleges the trial court refused to allow her to call
witnesses on her behalf. The written statement of facts
indicates wife did not subpoena any witnesses for the September
28, 2001 hearing. In the absence of other evidence, we cannot
say that wife has borne her burden to demonstrate that the trial
court erred.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
- 4 -