Roger W. Frydrychowski v. Cheryl J. Frydrychowski

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
ROGER W. FRYDRYCHOWSKI
MEMORANDUM OPINION *
v. Record No. 2086-96-2 PER CURIAM
APRIL 1, 1997
CHERYL J. FRYDRYCHOWSKI
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
(William K. Grogan; Roger W. Frydrychowski,
pro se; William K. Grogan & Associates, on
brief), for appellant.
(Torrence M. Harman; J. W. Harman, Jr.;
Harman & Harman, on brief), for appellee.
Roger W. Frydrychowski (husband) appeals the decision of the
circuit court setting spousal support and deciding other issues.
On appeal, husband contends the trial court erred by (1) reducing
his visitation with the parties' two minor sons; (2) failing to
restore visitation to two days; (3) awarding Cheryl Frydrychowski
(wife) $1,050 in monthly spousal support; (4) finding him liable
for $3,290 in support arrearages; and (5) ordering him to pay
wife's attorney's fees. Upon reviewing the record and briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Visitation
"In matters concerning custody and visitation, the welfare
and best interests of the child are the 'primary, paramount, and
controlling consideration[s].'" Kogon v. Ulerick, 12 Va. App.
595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). The
trial court is vested with broad discretion to make the decisions
necessary to safeguard and promote the child's best interests,
and its decision will not be set aside unless plainly wrong or
without evidence to support it. See Farley v. Farley, 9 Va. App.
326, 327-28, 387 S.E.2d 794, 795 (1990).
Husband assigns error to the July 15, 1994 order of the
trial court reducing his midweek visitation to one day. We
previously ruled that husband's appeal from that order was
untimely and we do not revisit that issue in this appeal. See
Frydrychowski v. Frydrychowski, Record No. 0461-95-2 (Va. Ct.
App. June 20, 1995). Challenges to the trial court's 1994
decision are out of time.
Husband also assigns error to the trial court's refusal to
restore two days of visitation. As the party seeking a change in
visitation, husband bore the burden to demonstrate a material
change in circumstances and that those circumstances warranted a
change in visitation. See Ohlen v. Shively, 16 Va. App. 419,
424, 430 S.E.2d 559, 561 (1993). Husband asserted that the two
minor children, while apparently doing well under the current
arrangement, would be better off if he had greater visitation.
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After hearing the parties testify concerning the existing
visitation arrangements, the trial court denied husband's motion
to change visitation. The credibility of the witnesses was a
matter for the trial court to determine. The record contains no
evidence demonstrating that the trial court's decision was not in
the best interests of the children or that it was plainly wrong.
Spousal Support
In awarding spousal support, the
chancellor must consider the relative needs
and abilities of the parties. He is guided
by the nine factors that are set forth in
Code § 20-107.1. When the chancellor has
given due consideration to these factors, his
determination will not be disturbed on appeal
except for a clear abuse of discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
(1986). The record demonstrates that the court considered the
statutory factors, including the parties' respective needs and
incomes. Wife was employed full time. While husband alleged
that wife could earn more in another position, he presented no
evidence to support his suggestion that wife was underemployed.
Husband has failed to demonstrate an abuse of discretion in the
court's order of support.
Husband refers to the "windfall" wife received by payment of
child support for the parties' daughter. Those payments are
irrelevant to the court's determination of spousal support.
"Child support and spousal support are separate and distinct
obligations based on different criteria." Lambert v. Lambert, 10
Va. App. 623, 629, 395 S.E.2d 207, 210 (1990).
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Arrearages
Under the existing court order, husband was obligated to pay
child support of $1,589 per month for the parties' three minor
children. No provision in the award was keyed to the children's
reaching majority.
A trial court may not retroactively modify a
child support decree to cancel a support
arrearage or to relieve a parent of an
accrued support obligation. Past due
installments become vested and are not
subject to change. A court may only modify a
support order to be effective prospectively.
The order may be made effective "with respect
to any period during which there is a pending
petition for modification, but only from the
date that notice of such petition has been
given to the responding party." Code
§ 20-108.
Bennett v. Commonwealth ex rel. Bennett, 22 Va. App. 684, 696,
472 S.E.2d 668, 674 (1996) (citing Cofer v. Cofer, 205 Va. 834,
838-39, 140 S.E.2d 663, 666-67 (1965); Taylor v. Taylor, 10 Va.
App. 681, 683-84, 394 S.E.2d 864, 865-66 (1990)). Therefore,
husband's challenge to the court's finding of an arrearage is
without merit.
Attorney's Fees
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. See Graves v. Graves, 4 Va.
App. 326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper
award of counsel fees is reasonableness under all the
circumstances. See McGinnis v. McGinnis, 1 Va. App. 272, 277,
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338 S.E.2d 159, 162 (1985). The trial court awarded wife only a
portion of her attorney's fees. We reject husband's
characterization that wife's refusal to abide by the parties'
visitation agreement after it was rejected by the trial court was
"unreasonable." Her compliance with the existing order was not
an unreasonable position adding unnecessarily to litigation
costs. Based on the number of issues involved and the respective
abilities of the parties to pay, we cannot say that the award was
unreasonable or that the trial judge abused his discretion in
making the award.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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