Pedro F. Becerra-Cely v. Judy Amick-Becerra

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
PEDRO F. BECERRA-CELY
MEMORANDUM OPINION *
v. Record No. 1798-96-1 BY JUDGE JOSEPH E. BAKER
APRIL 15, 1997
JUDY AMICK-BECERRA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Kenneth N. Whitehurst, Jr., Judge
James A. Evans (Dinsmore, Evans & Bryant, on
brief), for appellant.
Paul M. Lipkin (Goldblatt, Lipkin & Cohen,
P.C., on brief), for appellee.
Pedro F. Becerra-Cely (husband) appeals from a decree of
divorce entered by the Circuit Court of the City of Virginia
Beach (trial court). Husband contends that the trial court erred
in granting Judy Amick-Becerra (wife) sole custody of their minor
child, and in limiting husband's visitation such that he may not
have overnight visitation with their child. Husband further
asserts that the trial court erred in awarding wife $446 monthly
child support and in holding that husband was in arrears in
support payments in the sum of $19,246.
As the parties are familiar with the record, we recite only
those facts necessary to an understanding of our opinion. The
judgment of the trial court is presumed correct, and the burden
is on the party alleging reversible error to show by the record
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that reversal is the remedy to which he or she is entitled.
Steinberg v. Steinberg, 11 Va. App. 323, 326, 398 S.E.2d 507, 508
(1990). We will not set aside the trial court's judgment unless
the judgment is plainly wrong or without evidence to support it.
Simmons v. Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199
(1986).
I. and II. Custody and Visitation
The parties married on July 13, 1982 and separated on August
31, 1994. The record establishes that husband was having an
adulterous affair with Melissa Gavrish during the parties'
marriage. Gavrish gave birth to a child by husband and was
pregnant by him with a second child at the time of the parties'
divorce. The trial court found that husband committed adultery,
and the record supports that finding.
Two children were born of the parties' marriage, one having
died after the parties separated. Sole custody of the surviving
child, age nine, was awarded to wife with the right of reasonable
visitation to husband; however, husband was denied overnight
visitation. The record discloses that husband intended to move
to Ireland with Gavrish and the children born of her affair with
husband. In matters of custody and visitation, the best
interests of the custodial child are always paramount and within
the sound discretion of the trial court. The trial court's
decision thereon will not be reversed in the absence of a showing
of abuse of discretion. Under the facts contained in this
- 2 -
record, no abuse of discretion has been shown.
III. Child Support
In computing the amount of child support, the trial court
accepted the commissioner's report, which included a guideline
worksheet that determined husband's monthly earnings to be
$3,583, and accordingly ordered monthly support of $446. 1 The
record does not support the trial court's finding with respect to
husband's monthly earnings. The last annual earnings of husband
shown by this record are approximately $27,000 which he was not
earning at the time this matter was heard below. The only monies
shown by the record to have been received by husband thereafter
were annual student loans from the "federal government" in the
sum of $36,000, which the record further discloses must be repaid
by husband. That repayable loan may not be imputed as income to
husband. Accordingly, we reverse the trial court's finding
relative to monthly support payments and remand this cause for
further consideration of that issue.
At oral argument, husband conceded that in making an
appropriate support award it may not be error to impute previous
annual income based upon previous years in which actual earned
1
Wife argued that the trial court's finding of fact that
husband earned $26,950 during his last year of full employment
justifies the amount $446 in monthly support. While the trial
court did find that husband earned $26,950 during his last year
of full employment, it specifically stated that the amount of
support was determined based upon an imputed income to husband of
$43,000 ($3,583 per month). This sum included a $36,000 loan
obtained by husband and a $7,000 loan for which husband applied.
- 3 -
income was shown.
IV. Arrearages
Prior to their separation, on December 31, 1993, the parties
executed a Final and Permanent Separation and Property Settlement
Agreement (PSA). In this appeal, we discuss only the provisions
in the PSA concerning custody and support for the child. As to
child support, the PSA provided as follows:
9. Child Support. Child support shall be
paid by the parent who does not have primary
physical custody of the children to the
parent who has primary physical custody at
the time of the payment commencing on January
1, 1994 in the amount of $__________ per
month. Husband is currently in medical
school and has minimal income, but is
expected to contribute to child support based
upon what income he does have. . . .
As can be seen, the dollar amount was left blank; however, in the
margin opposite paragraph 9, the words "house mortgage payment"
were handwritten and initialed by the parties. The record
clearly discloses that the amount of that monthly payment was
$931.64.
At the time the PSA was executed, the parties were living
together in the same house with their two children. 2 They
continued to live together for an additional eight months,
apparently jointly operating three separate Montessori schools
from which they received income. Thus, neither party had
exclusive "primary custody" of the children until they separated
2
One child died in an accident prior to the entry of the
final decree of divorce from which this appeal emanates.
- 4 -
on August 31, 1994. Until August 1994, husband paid $931.64 each
month to wife. Notwithstanding that wife has continually
retained "primary custody" of the surviving child, husband
thereafter did not make that monthly payment.
On April 13, 1995, wife instituted a divorce suit against
husband. A pendente lite hearing was held in the trial court on
April 28, 1995. We were not provided a transcript of that
hearing and neither counsel for the parties in this appeal was
present at the pendente lite hearing. A temporary support decree
was entered which gave wife custody of the child and ordered
husband to pay wife $125 per month beginning May 1, 1995 for
support of the child. 3 The order recites that the support award
is based on husband's income of $250 per month and wife's monthly
income of $1,333.
The pendente lite order further provided that "[n]o support
arrearages exist at this time." The order stated that the
findings were predicated on "having considered the testimonial
and documentary evidence presented his [sic] date"; however,
neither the reason for the finding of no arrearages nor the
evidence considered in making the finding are in the record
before us. The order contained a further provision that as the
$125 per month support obligation becomes due and is unpaid, it
thereby "creates a judgment by operation of law." Upon familiar
3
The trial judge who entered the pendente lite order was not
the judge who entered the final divorce decree.
- 5 -
principles, the order is presumed correct. Steinberg, 11 Va.
App. at 326, 398 S.E.2d at 508.
At trial, wife requested that the trial court enter a
judgment for "arrearages." She asserted that husband owed her
for the monthly payments described in the margin of paragraph 9
of the PSA which husband had not paid since July 1994. Wife's
assertion disregards the trial court's finding in the pendente
lite order that as of April 28, 1995, there was no arrearage. In
addition, the pendente lite order established that husband's
support obligation was $125 per month. That order may not be
retroactively modified. See Code § 20-108; see also Cofer v.
Cofer, 205 Va. 834, 140 S.E.2d 663 (1965); Taylor v. Taylor, 10
Va. App. 681, 394 S.E.2d 864 (1990).
At the hearing before the commissioner, the PSA was
presented and marked P-1. Neither party wanted the PSA to be
incorporated into the final decree precisely as that document was
written. Husband wanted only the PSA provisions pertaining to
custody and visitation incorporated into the final decree and
objected to all other provisions. Wife wanted all of the PSA
provisions incorporated into the final decree except for the
custody and visitation provisions. In addition, wife wanted a
judgment for arrearages beginning with the payment due under the
PSA in August 1994. In its final decree of divorce, the trial
court confirmed the commissioner's report, granted wife a divorce
on the ground of husband's adultery, dismissed husband's
- 6 -
cross-bill, and dissolved the bonds of matrimony between the
parties. It affirmed, ratified and incorporated the PSA in part,
as it is authorized by law to do, see Frye v. Swarting, 4 Va.
App. 173, 178-79, 355 S.E.2d 342, 344-45 (1987); Rodriguez v.
Rodriguez, 1 Va. App. 87, 90, 334 S.E.2d 595, 597 (1985), and
directed the parties to comply with the portions incorporated by
use of the following paragraph:
Except as to the matters dealing with
Veronica's custody and support, the
Agreement, which is filed with the papers in
this cause, be and the same is hereby
affirmed, ratified and incorporated as a part
of this decree as if fully set forth herein
and the parties are directed to comply with
same.
Having specifically excluded that portion of the PSA upon which
wife bases her claim of arrearages, the trial court was without
jurisdiction to render a judgment concerning the excluded
provisions. 4
The Supreme Court in Shoosmith v. Scott,
217 Va. 789, 232 S.E.2d 787 (1977),
distinguished the effect of a divorce decree
that approves a contract between the parties
without specifically incorporating the
contract or ordering the husband to perform
its obligations, and a divorce decree that
specifically incorporates the contract or
orders the husband to perform its
obligations. In the former, the decree is an
approval of a private contract and may not be
enforced in the divorce suit, whereas in the
latter situation, the court may enforce the
agreement through its contempt powers.
4
As aforenoted, the trial court is without authority to
modify its previous orders (here the pendente lite order)
retroactively. Cofer, 205 Va. at 839, 140 S.E.2d at 666-67;
Taylor, 10 Va. App. at 683, 125 S.E.2d at 865-66.
- 7 -
Rodriguez, 1 Va. App. at 90, 334 S.E.2d at 597. Here, the
portion of the PSA containing the support provisions was excluded
from the final divorce decree. Furthermore, no order in this
record directs husband to comply with the contract support
provision. Thus, the support provision constituted a private
contract between the parties and "may not be enforced in the
divorce suit." Id. McCaw v. McCaw, 12 Va. App. 264, 403 S.E.2d
8 (1991), relied upon by wife, is not contrary to this
conclusion. Accordingly, the trial court was without
jurisdiction to award a judgment on the portion of the PSA it had
not approved or with which it had not ordered husband to comply.
For the reasons stated, the judgment of the trial court is
reversed and remanded for such further action as may be warranted
that is not inconsistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
- 8 -