John D. Pellegrin v. Diane L.B. Pellegrin (Ramee) ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and
Humphreys
Argued at Alexandria, Virginia
JOHN DAVID PELLEGRIN
MEMORANDUM OPINION * BY
v. Record No. 0209-01-4 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 29, 2002
DIANE LYNN BINGMAN PELLEGRIN (RAMEE)
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
John D. Pellegrin, pro se.
David M. Levy (Surovell, Jackson, Colten &
Dugan, P.C., on brief), for appellee.
John D. Pellegrin (appellant) (Pellegrin) appeals the trial
court's dismissal of his petition to terminate or modify spousal
support on the grounds that the trial court improperly
considered certain evidence and improperly declined to impute
income to Diane L.B. Pellegrin Ramee (appellee) (Ramee).
Pellegrin also appeals the trial court's award of attorney's
fees to Ramee. For the reasons that follow, we affirm and
remand for a determination of appellate attorney's fees.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
Background
On appeal, we view the evidence and all reasonable
inferences that flow from it in the light most favorable to
Ramee, the party prevailing below. Calvin v. Calvin, 31 Va.
App. 181, 183, 522 S.E.2d 376, 377 (1999). Pellegrin and Ramee
were divorced on March 5, 1991, by a final decree affirming,
ratifying, and incorporating the parties' Property Custody and
Support Settlement Agreement (PSA). The PSA provided that
Pellegrin's support obligation would be reduced as Ramee's
income from employment increased.
On April 30, 1998, appellant filed a petition in the
Circuit Court of Fairfax County to terminate spousal support and
maintenance. He contended that Ramee, who had a Master's in
Education and Counseling Development, was voluntarily foregoing
gainful employment and, therefore, not entitled to support
according to the PSA. He presented the testimony of Thomas W.
Minnick, an expert in the field of mental health counseling
employment. The trial court, however, found that the PSA did
not require Ramee to seek employment, and Pellegrin appealed.
On appeal, we held that the PSA "established an implied
contractual duty upon [Ramee] to make a reasonable effort to
seek employment." Pellegrin v. Pellegrin, 31 Va. App. 753, 761,
525 S.E.2d 611, 615 (2000). Finding the trial court erred in
concluding that no such duty arose from the terms of the
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contract, we remanded the matter "for further proceedings based
on the evidence presented." Id.
On remand, over Pellegrin's objection, the trial court
permitted Ramee to testify regarding her efforts to secure
employment. Ramee stated that she received employment
counseling and followed a plan to secure employment, which
included applications to more than two dozen employers. She
noted after she completed her Master's in Education and
Counseling Development in December 1997, she had difficulty
finding a job because she lacked clinical experience.
Therefore, in January 1998, she obtained an unpaid externship at
the Prince William County Community Services Board where she
obtained clinical experience hours and eventually secured a
paying position in January 1999.
Minnick testified that Ramee was readily employable and
could earn in excess of $50,000 per year. He also noted that,
at the time Ramee was looking for employment, he personally
would not have hired her as a substance abuse counselor because
she lacked clinical experience of at least one year.
From this evidence, the trial court determined Pellegrin
failed to prove Ramee had not made reasonable efforts to gain
employment, and it declined to impute income to her.
On May 15, 1998, the trial court heard Ramee's petition for
a rule to show cause. The trial court found Pellegrin in
contempt for failure to make support payments, but suspended
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this finding on the condition that Pellegrin resume spousal
support payments. Pellegrin failed to meet this condition. On
November 9, 1999, the trial court stayed the matter so that
Pellegrin's then pending bankruptcy proceeding in U.S.
Bankruptcy Court could be resolved. After the bankruptcy
proceeding was resolved, another hearing on the rule to show
cause was held on December 7, 2000, in conjunction with the
remand hearing.
At the December 7 hearing, the trial court found Pellegrin
in contempt for failure to pay spousal support resulting in
arrearages of $42,773.96, plus interest in the amount of
$5,846.11. The court advised Pellegrin that he could purge
himself of contempt by presenting a plan for payment of the
arrearages. On December 22, 2000, Pellegrin proposed that he
pay $300 per month. The court rejected this plan as
unreasonable because it would require 13.6 years to pay the
debt, without including interest. After a two-hour stay in
detention, Pellegrin presented a second plan to pay Ramee $1,000
per month and give her four initialed Tiffany light shades, to
be credited towards his outstanding arrearages. The court
accepted the plan, and Ramee agreed to it.
II.
Analysis
Pellegrin contends that the trial court erred by: (1)
permitting Ramee to present additional evidence on remand; (2)
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refusing to impute income to Ramee; (3) awarding Ramee
attorney's fees for successfully enforcing the terms of the PSA;
(4) finding him in contempt despite evidence of his inability to
pay support; and (5) unconstitutionally incarcerating him. We
find each of these contentions to be without merit.
A. Admission of additional evidence
It is well settled that a decision "'to hear additional
evidence is within the sound discretion of the trial court.'"
Calvin, 31 Va. App. at 184, 522 S.E.2d at 378 (quoting Rowe v.
Rowe, 24 Va. App. 123, 144, 480 S.E.2d 760, 770 (1997)); Morris
v. Morris, 3 Va. App. 303, 307, 349 S.E.2d 661, 663 (1986). The
trial court's ruling at the first hearing was based on a legal
interpretation of the PSA and not on the evidence heard. We
reversed the court's decision, holding that the PSA "established
an implied contractual duty upon [Ramee] to make a reasonable
effort to seek employment," and we remanded the matter "for
further proceedings based on the evidence presented."
Pellegrin, 31 Va. App. at 761, 525 S.E.2d at 615. The trial
judge found that this directive did not preclude the
presentation of additional evidence, explaining, "I only heard
half the case. And . . . in light of the posture in which the
case ended here, I just do not see how I can rule without taking
further evidence today." The record supports this finding.
Ramee did not present evidence of her employment search at the
first hearing because the court had granted her motion to
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strike. Additional evidence was therefore necessary to dispose
of the issue before the court on remand.
B. Imputation of Income
The trial court found that Pellegrin had not met his burden
of proving that Ramee was foregoing gainful employment and,
therefore, declined to impute income to her. Such a "refusal to
impute income will not be reversed unless plainly wrong or
unsupported by the evidence." Blackburn v. Michael, 30 Va. App.
95, 102, 515 S.E.2d 780, 784 (1999). Furthermore, "[t]he burden
is on the party seeking imputation to prove that the other
[party] was voluntarily foregoing more gainful employment,
either by producing evidence of a higher-paying former job or by
showing that more lucrative work was currently available."
Niemiec v. Dep't of Soc. Servs., 27 Va. App. 446, 451, 499
S.E.2d 576, 579 (1998) (citations omitted).
In this case, Pellegrin did not present evidence of a
higher-paying former job. Instead, he sought to prove that
Ramee's unemployment was voluntary because more lucrative work
was available. His expert, Minnick, testified that because the
market for mental health counselors was strong, Ramee was
readily employable and could earn in excess of $50,000 per year.
This abstract statement is insufficient to demonstrate voluntary
unemployment.
Moreover, the evidence in the case is contrary to Minnick's
conclusion that Ramee was readily employable and supports the
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trial court's ruling that Ramee was not voluntarily unemployed.
The trial court found that, at the time Ramee sought employment,
one year of clinical experience, which she did not have, was the
minimum for hiring a mental health counselor with a master's
degree. Ramee testified and presented records indicating that
she actively sought employment as a substance abuse counselor
but was unsuccessful because she lacked clinical experience.
She noted that potential employers specifically told her that
she needed more experience and that most job listings in the
field required one year of experience. Indeed, Minnick,
himself, stated that he personally would not have hired Ramee as
a substance abuse counselor because she did not have a year of
clinical experience.
Finally, we note that the trial court discounted Minnick's
expertise on the issue, noting that "he is not a headhunter in
this area. His specialty is not placing people in this area.
He is not a rehabilitation expert . . . ." See Street v.
Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en
banc) (noting that the trier of fact "has the discretion to
accept or reject any of the witness' testimony"). In short,
credible evidence in the record supports the trial court's
resolution of this issue. See Barnes v. Wise Fashions, 16 Va.
App. 108, 111, 428 S.E.2d 301, 303 (1993) (trial court may
resolve any apparent conflicts in the testimony of an expert).
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Because the record does not demonstrate that Ramee was, in
fact, qualified for the jobs Pellegrin alleged were available,
Pellegrin has failed to carry his burden of demonstrating that
Ramee was voluntarily unemployed. Niemiec, 27 Va. App. at 453,
499 S.E.2d at 580 (holding that mother was not voluntarily
unemployed where party seeking to impute income "did not
establish that [employment] positions were available" to her or
"that she failed to market herself adequately").
C. Contempt
Pellegrin contends that the trial court erred in holding
him in contempt. Specifically, he argues that the court's
finding of voluntary underemployment is unsupported by the
evidence and that the trial court improperly rejected his
initial proposed payment plan. We disagree.
"A trial court may hold a support obligor in contempt for
failure to pay where such failure is based on unwillingness, not
inability, to pay." Barnhill v. Brooks, 15 Va. App. 696, 704,
427 S.E.2d 209, 215 (1993). The moving party must demonstrate
that the offending party failed to comply with an order of the
court. Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d
666, 669 (1991) (citing Frazier v. Commonwealth, 3 Va. App. 84,
87, 348 S.E.2d 405, 407 (1986)). "The offending party then has
the burden of proving justification for his or her failure to
comply." Id. (citing Frazier, 3 Va. App. at 87, 348 S.E.2d at
407); see Laing v. Commonwealth, 202 Va. 511, 514, 137 S.E.2d
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896, 899 (1964) ("[T]he inability of an alleged contemner,
without fault on his part, to tender obedience to an order of
court, is a good defense to a charge of contempt."); Barnhill,
15 Va. App. at 704, 427 S.E.2d at 215.
Where a court issues a judgment of contempt, "'its finding
is presumed correct and will not be reversed unless plainly
wrong or without evidence to support it.'" Glanz v. Mendelson,
34 Va. App. 141, 148, 538 S.E.2d 348, 351 (2000) (quoting Brown
v. Commonwealth, 26 Va. App. 758, 762, 497 S.E.2d 147, 149
(1998)). When reviewing the sufficiency of the evidence
supporting a finding of contempt, we view the evidence in the
light most favorable to the party prevailing below. See id.
Pellegrin failed to carry his burden of demonstrating his
inability to pay the court-ordered support. At the time of the
hearing, Pellegrin was an attorney with nearly 30 years of
experience and with his own private practice. Pellegrin's
profit and loss statement showed repayment of $25,000 in loans
and personal credit card debt by his law firm in 1999 and
$45,000 in 2000. In addition, he and his wife were active
members of Springfield Golf and Country Club. In light of this
evidence of ability to pay, the trial court did not credit
Pellegrin's claim that he earns only $10,000 per year from his
law firm and that he has diligently sought other employment.
See Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d
730, 732 (1995) ("The credibility of the witnesses and the
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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."). Accordingly, the court determined that his
underemployment was voluntary and held him in contempt and
rejected his plan to pay Ramee only $300 per month. It later
accepted his plan to pay $1,000 per month and turn over four
Tiffany lamp shades to Ramee, as payment towards his arrearages.
We find that the record supports the trial court's finding of
voluntary underemployment and its order.
D. Attorney's Fees
Pellegrin also contends that we should: (1) vacate the
trial court's award of $5,000 in attorney's fees from the first
hearing; and (2) reverse the trial court's award of fees in
connection with the remand hearing. As we have noted in earlier
appeals by Pellegrin, the first issue is barred by res judicata
because we have previously ruled to the contrary. See
Pellegrin, 31 Va. App. at 768, 525 S.E.2d at 618.
The second claim is governed by the terms of the PSA, which
provides:
The parties agree that any expenses,
including but not limited to, counsel fees,
court costs, and travel, incurred by a party
in the successful enforcement of any of the
provisions of this Agreement . . . shall be
borne by the defaulting party. Any such
costs incurred by a party in the successful
defense to . . . any such provisions shall
be borne by the party seeking [enforcement].
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At the remand hearing, the trial court awarded Ramee $2,500
in attorney's fees. Because wife successfully defended against
Pellegrin's attempt to enforce the provisions of the PSA
requiring imputation of income, see id. at 759-61, 525 S.E.2d at
613-15, we affirm this award. Cf. id. at 768, 525 S.E.2d at
618. (affirming award of attorney's fees because wife's "actions
for which attorney's fees were awarded involved the successful
enforcement of the PSA," in accordance with the PSA's provision
governing such awards). Also pursuant to the PSA and, as
requested by Ramee on appeal, we remand to the trial court to
assess and award appropriate appellate attorney's fees to Ramee
incurred by her in the appellate case presently before us. See
O'Loughlin v. O'Loughlin, 23 Va. App. 690, 694, 479 S.E.2d 98,
100 (1996) (finding that trial court may award attorney's fees
incurred on appeal with a specific remand and particularized
instructions to do so). 1
1
Although Ramee requested appellate attorney's fees in
conjunction with the prior appeal, we did not award her
appellate fees and did not direct the trial court to do so. See
generally Pellegrin, 31 Va. App. 753, 525 S.E.2d 611. She now
requests that we direct the trial court to consider an award of
attorney's fees incurred in conjunction with that appeal on the
ground that the present appeal is "a continuation of the earlier
matter." However, she cites no authority in support of this
proposition, and we have found none. Therefore, because "the
judgment in the former action [was] rendered on the merits by a
court of competent jurisdiction," res judicata bars our
reconsideration. Simmons v. Commonwealth, 252 Va. 118, 120, 475
S.E.2d 806, 807 (1996); see also Highsmith v. Commonwealth, 25
Va. App. 434, 440, 489 S.E.2d 239, 241 (1997) (noting that a
court's constructive determination of an issue sufficiently
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For the foregoing reasons, the judgment of the trial court
is affirmed, and the matter is remanded solely for consideration
of an award of attorney's fees consistent with this opinion.
Affirmed and remanded.
constitutes determination "on the merits" in the context of res
judicata (citation omitted)).
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