Gerri Paige Butterman v. Alexander Herbert Butterman

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Beales and Powell
Argued at Alexandria, Virginia
GERRI PAIGE BUTTERMAN
MEMORANDUM OPINION * BY
v. Record No. 3007-08-4 JUDGE CLEO E. POWELL
AUGUST 18, 2009
ALEXANDER HERBERT BUTTERMAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jan L. Brodie, Judge
David G. Hubbard (Leiser, Leiser & Hennessy, PLLC, on brief),
for appellant.
David M. Levy (Camille Allan; Surovell, Markle, Isaacs & Levy,
PLC, on brief), for appellee.
Gerri Paige Butterman (“wife”) appeals an order of the Circuit Court of Fairfax County
granting Alexander Herbert Butterman (“husband”) sole legal and physical custody of the
parties’ children. Wife also appeals the court’s decision to limit her spousal support and to
apportion debts related to the children’s therapy equally between the parties. Finding no error,
we affirm the decision of the trial court.
BACKGROUND
Husband and wife were married on June 29, 1996 in New York. Two children were born
of the marriage. In mid-June, 2006, husband began to notice wife acting strangely. Over the
next two days, husband observed wife’s odd behavior becoming progressively worse, to the
point where she was rambling and speaking in codes. After wife was unable to order dinner at a
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
restaurant, husband and wife’s father convinced wife that she needed to be admitted to the
hospital. Wife was released from the hospital on June 20, 2006.
On June 23, 2006, wife again began to act strangely. As before, wife’s behavior became
progressively worse as time went on. Wife then began calling 911, asking the police to take her
to the hospital because she did not want to go with husband. The police eventually took her to
the hospital. Following an involuntary commitment hearing, wife was released from the hospital
on June 26, 2006.
On June 27, 2006, wife called 911 ten times, from 9:00 p.m. until 7:00 a.m. the next
morning, reporting that husband was abusing her. When the police finally arrived at 7:00 a.m.,
they found husband sleeping in his bed. After determining that wife was making false reports,
they arrested her and took her to jail. Wife then refused to get dressed for her arraignment and
spent a total of nine days in jail before being released. In January and February of 2008, wife’s
family made at least four more attempts to have her involuntarily committed due to her erratic
behavior.
Soon after the June 27, 2006 incident, the parties realized that their marriage was at an
end. They subsequently entered into a time-limited separation agreement, which gave wife
physical custody of the parties’ children. The separation agreement expired at the end of
February, 2007. In light of the expiration of the separation agreement, a pendente lite hearing
was scheduled for March 13, 2007. However, on March 12, 2007, wife insisted husband take
custody of the children the next day. Wife relinquished custody to husband on March 13, 2007
and moved to Florida.
Husband took the necessary steps to transfer the children to a new school district, as they
had been living in Leesburg with wife, and husband lived in Vienna. However, due to the
suddenness of the transfer, there were a number of problems. During the 2007-08 school year,
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the children had over 101 tardies each. Carrie Powers, the school counselor for the children,
testified that, although the number of tardies was high, it appeared to be more related to anxiety
on the part of one of the children, rather than anything husband was doing incorrectly. She also
testified that there was definite improvement toward the end of the school year, as the children
became more accustomed to their new environment.
Due to his work schedule, husband was forced to hire a nanny to care for the children.
The nanny would care for the children during the day while husband was at work. In October of
2007, while under the supervision of the nanny, there was an incident where the nanny’s
thirteen-year-old brother touched one of the children inappropriately. The police investigated the
incident and recommended against prosecuting the nanny’s brother, because, in their
determination, this was a case of the brother being immature, and they did not believe that he
was being cruel or malicious. Additionally, the police officers believed that any subsequent
prosecution would be more traumatizing to the child.
A two-day evidentiary hearing was held on August 12 and 13, 2008 in order to determine
custody of the children. During the hearing, husband admitted that he had violated the court’s
pendente lite order by bringing his children with him when he went to see his girlfriend on the
weekends. Husband apologized to the trial court and explained that, due to his schedule, the
only time that he could see his girlfriend and his children was during the weekend. Additionally,
he explained that his girlfriend has two children who are the same age as his children. According
to husband, the children’s exposure to his girlfriend and her children was a positive thing,
because the children got along great and it felt like a “large family.”
After hearing all of the evidence, the trial court considered the statutory factors and
determined that husband would have full physical and legal custody of the children. The trial
court granted wife telephone visitation twice a week, supervised visitation within the
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Washington D.C. metro area, and one week of visitation in Florida during the summer, to be
supervised by the maternal grandparents. Additionally, the trial court found husband was
“technically in contempt,” for violating the pendente lite order and fined him one (1) dollar.
However, the trial court subsequently suspended the finding of contempt.
On October 14, 2008 another evidentiary hearing was held in order to determine matters
of equitable distribution, child support, and spousal support. The trial court considered the
statutory factors and apportioned all existing marital debt equally between the parties. This
consisted of a tax lien on wife’s vehicle and a $3,888 debt relating to the children’s therapy.
On the issue of spousal support, the trial court determined that wife was entitled to
$2,000/month in spousal support for one year. She would then receive only $1,000/month in
spousal support for the following five years. In making this ruling, the trial court stated that it
was not convinced that wife could not work, due to the “lack of any medical evidence and the
credibility of [wife].”
On the issue of child support, the trial court considered the evidence and the factors and
determined that husband was entitled to receive child support from wife. However, the trial
court noted that the application of the guidelines in this case would be unjust and inappropriate,
due to the nature of portions of both parties’ income. 1 The trial court ordered that the amount of
child support should be set by removing the anomalous income from both parties and imputing
an income of $35,000/year to wife, based on her past work experience. As a result, husband was
awarded child support in the amount of $1,017 per month.
Wife appeals.
1
Wife had recently received a one-time lump sum payment that was factored in, whereas
husband was receiving financial assistance from his father.
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ANALYSIS
A. Child Custody
Wife argues that the trial court ignored husband’s “highly problematic circumstances”
and focused solely on her physical and mental condition as the basis for the sole custody award.
Wife specifically contends that, based on the evidence adduced at trial, the trial court disregarded
the factors enumerated in Code § 20-124.3 in making its custody decision.
When determining custody, “the controlling consideration is always the child’s welfare.”
Sutherland v. Sutherland, 14 Va. App. 42, 43, 414 S.E.2d 617, 618 (1992). However, “the trial
court has broad discretion in determining what promotes the children’s best interests.” Brown v.
Brown, 30 Va. App. 532, 538, 518 S.E.2d 336, 338 (1999).
Code § 20-124.3 specifies the factors a court “shall consider” in
determining the “best interests of a child for . . . custody or
visitation.” Although the trial court must examine all factors set
out in Code § 20-124.3, “it is not ‘required to quantify or elaborate
exactly what weight or consideration it has given to each of the
statutory factors.’” Sargent v. Sargent, 20 Va. App. 694, 702, 460
S.E.2d 596, 599 (1995) (quoting Woolley v. Woolley, 3 Va. App.
337, 345, 349 S.E.2d 422, 426 (1986)). As long as evidence in the
record supports the trial court’s ruling and the trial court has not
abused its discretion, its ruling must be affirmed on appeal. See
Alphin v. Alphin, 15 Va. App. 395, 405, 424 S.E.2d 572, 578
(1992).
Brown, 30 Va. App. at 538, 518 S.E.2d at 338.
This Court has previously held that “Code § 20-124.3 requires the trial court to identify
the fundamental, predominating reason or reasons underlying its decision.” Kane v. Szymczak,
41 Va. App. 365, 372-73, 686 S.E.2d 349, 353 (2003). “To satisfy Code § 20-124.3, therefore,
the trial court must provide a case-specific explanation (one that finds its contextual meaning
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from the evidence before the court) of the fundamental, predominating reason or reasons for the
decision.” Id. at 373, 686 S.E.2d at 353. 2
Wife relies heavily on Petry v. Petry, 41 Va. App. 782, 589 S.E.2d 458 (2003), for the
notion that because wife stayed home with the children and husband worked long hours, wife
should automatically get custody. However, wife’s reliance on Petry is misplaced. Although
wife is correct that the father in Petry worked long hours, much like husband in the present case,
there are few, if any, additional similarities. In Petry the father began having an adulterous
affair, abandoned his family, and did not request any visitation. Under those circumstances, this
Court determined that the trial court had not abused its discretion in granting the mother’s
request to move with the children to New York. Id. at 796, 589 S.E.2d 465.
None of the additional facts in Petry are present in this case. Here, husband has neither
had an adulterous affair nor did he abandon his family. To the contrary, husband took the
children in on a day’s notice from wife and affirmatively sought sole legal and physical custody.
It is clear that the trial court examined all of the factors in making its ruling. In fact, the
trial court’s analysis exceeded ten (10) pages of transcript. The record demonstrates that the trial
court specifically addressed several of the issues wife claims the trial court disregarded or
ignored. Contrary to wife’s argument, the trial court specifically addressed the facts, particularly
the issue of tardiness, which the trial court noted had improved; husband’s girlfriend and her
family, which the trial court commented was a positive factor; and the issue of the husband’s
decision to not administer the children’s medication, which the trial court weighed against wife’s
propensity to be an “internet doctor.” Furthermore, in summarizing the evidence, the trial court
2
Wife attempts to characterize this Court’s holding in Kane as requiring the trial court
provide a “fundamental, predominating reason” for each part of its decision, not just the decision
as a whole (i.e. the court must give a reason for its custody decision, another reason for its
visitation decision, etc.). However, nothing in Kane indicates that the trial court must provide
more than the fundamental, predominating reason for its decision as a whole.
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explained that, while husband’s circumstances were “not ideal,” “[wife]’s condition . . . leaves
me with no choice.” So, while wife argues that the trial court ignored the factors, in reality the
trial court weighed the factors and found that they were in husband’s favor. The trial court is
certainly allowed to do this and committed no error in doing so. Accordingly, we hold the trial
court did not abuse its discretion in granting sole legal and physical custody to husband.
B. Spousal Support and Imputed Income
Wife argues that the trial court abused its discretion by finding that she is able to work
and imputing to her an income of $35,000 per year. Specifically, wife contends that the trial
court ignored the fact that she was receiving disability payments from the Social Security
Administration in making its decision.
“Whether spousal support should be paid is largely a matter committed to the sound
discretion of the trial court, subject to the provisions of Code § 20-107.1.” McGuire v. McGuire,
10 Va. App. 248, 251, 391 S.E.2d 344, 346 (1990). “A party seeking spousal support bears the
burden of proving all the facts necessary for an award.” Robbins v. Robbins, 48 Va. App. 466,
484, 632 S.E.2d 615, 624 (2006). “In fixing the amount of the spousal support award, . . . the
court’s ruling will not be disturbed on appeal unless there has been a clear abuse of discretion.
We will reverse the trial court only when its decision is plainly wrong or without evidence to
support it.” Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 (1992) (citations
omitted).
This Court has previously held that “[t]he declaration of the Social Security
Administration [is] not dispositive of whether the trial court properly imputed income to wife.”
O’Hara v. O’Hara, 45 Va. App. 788, 797, 613 S.E.2d 859, 864 (2005). Rather, “[a] court may
impute income to a party who is voluntarily unemployed or underemployed. Imputation of
income is based on the principle that a spouse should not be allowed to choose a low paying
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position that penalizes the other spouse.” Calvert v. Calvert, 18 Va. App. 781, 784-85, 447
S.E.2d 875, 876-77 (1994).
Whether a person is voluntarily unemployed or underemployed is a
factual determination. In evaluating a request to impute income,
the trial court must “consider the [parties’] earning capacity,
financial resources, education and training, ability to secure such
education and training, and other factors relevant to the equities of
the parents and the children.”
Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 784 (1999) (quoting Niemiec v.
Commonwealth, 27 Va. App. 446, 451, 499 S.E.2d 576, 579 (1998)).
In the present case, the record shows that wife qualified for disability benefits in 2004.
The evidence further shows that despite the fact that she qualified for disability benefits, wife
returned to work in February of 2005 where she was expected to work twelve (12) hour days.
She left that employment in June 2005 because she “didn’t really care for the assistant manager.”
She subsequently found a much better job in the same field and worked at that job until August
of 2005.
Aside from her own testimony, wife offered no further evidence to prove that she was
actually disabled or to demonstrate how her health issues currently affected her ability to work.
Furthermore, she testified that she had made no recent effort to find a job to take advantage of
various programs offered by the Social Security Administration which would allow her to obtain
employment and continue to receive disability benefits.
It is well established that ‘“[t]he credibility of witnesses and the weight accorded their
testimony are matters solely for the fact finder who has the opportunity of seeing and hearing the
witnesses.’” Commonwealth v. Jackson, 276 Va. 184, 197, 661 S.E.2d 810, 816 (2008) (quoting
Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)). The
conclusions drawn by the fact finder on credibility issues may be disturbed on appeal only if the
appellate court finds that the witness’ testimony was “inherently incredible, or so contrary to
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human experience as to render it unworthy of belief.” Fisher v. Commonwealth, 228 Va. 296,
299-300, 321 S.E.2d 202, 204 (1984). “In all other cases, we must defer to the conclusions of
‘the fact finder[,] who has the opportunity of seeing and hearing the witnesses.’” Ashby v.
Commonwealth, 33 Va. App. 540, 548, 535 S.E.2d 182, 187 (2000) (quoting Schneider, 230 Va.
at 382, 337 S.E.2d at 736-37).
It is readily apparent that the trial court did not find wife’s testimony regarding how her
disability affected her ability to work credible. In making its decision, the trial court noted that
wife “was engaged throughout the hearing, did not complain of any major pain or discomfort,
and did not have any difficulty paying attention to or participating in the proceedings. In fact, at
times she could be quite animated.” The trial court subsequently held that, “[b]ased on the lack
of any medical evidence and the credibility of [wife], I am not convinced that she cannot work.”
As there is no evidence of plain error on the part of the trial court, we cannot say that the trial
court abused its discretion in finding that appellant is able to be employed and imputing to her an
income of $35,000 per year, which the court based on an average of wife’s income over the past
several years that she worked.
C. Equitable Distribution
Wife argues that, in light of the fact that husband makes considerably more money than
she does, the trial court erred in apportioning debts related to the children’s therapy equally
between the parties. However, wife cites no authority requiring a trial court to apportion debts
proportionate to the parties’ income. We further note that, in addition to the children’s therapy
debts, the trial court also required husband to pay half of the tax lien on wife’s vehicle.
“Fashioning an equitable distribution award lies within the sound discretion of the trial
judge and that award will not be set aside unless it is plainly wrong or without evidence to
support it.” Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990). “In
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reviewing an equitable distribution award on appeal, we have recognized that the trial court’s job
is a difficult one, and we rely heavily on the discretion of the trial judge in weighing the many
considerations and circumstances that are presented in each case.” Klein v. Klein, 11 Va. App.
155, 161, 396 S.E.2d 866, 870 (1990).
The fact that the debts were apportioned in a manner that wife disagrees with does not
demonstrate that the decision of the trial court was plainly wrong or without evidence to support
it. Accordingly, we cannot say that the trial court abused its discretion in apportioning the
children’s therapy debts equally between the parties.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
Affirmed.
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