Kathleen Capenos Barrett v. David J. Kantz

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Alston and Senior Judge Coleman
KATHLEEN CAPENOS BARRETT
MEMORANDUM OPINION *
v. Record No. 2506-09-1 PER CURIAM
APRIL 20, 2010
DAVID J. KANTZ
FROM THE CIRCUIT COURT OF YORK COUNTY
E. Preston Grissom, Judge Designate
(Kathleen C. Barrett, pro se, on brief). Appellant submitting on
brief.
No brief for appellee.
Kathleen C. Barrett (mother) appeals an order of the trial court granting her motion for a
modification in the parties’ child support award. On appeal, mother contends the trial court erred
by: (1) failing to make the modified child support payments retroactive to the date she filed her
motion for modification; (2) failing to order David J. Kantz, father, to pay the orthodontic expenses
for the child, E.K.; and (3) calculating the amount father must pay for the orthodontic expenses of
the child, D.K. We affirm the trial court’s decision on (1) and (2), reverse its decision on (3), and
remand for further proceedings.
Background
The parties married in 1992 and had two children during the marriage, D.K and E.K. At the
time of the hearings, D.K was fifteen years old and E.K. was twelve years old. The parties divorced
in 2004. Father had primary physical custody of the children until December 2008. By order
entered on January 28, 2009, the trial court awarded mother primary physical custody of the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
children. The trial court also ordered, in consideration of an agreement between the parties, that
mother would forego receiving child support from father for a period of twelve months from the
date of the hearing, January 13, 2009, barring any change in circumstances.
In March 2009, mother filed in the juvenile and domestic relations district court (the JDR
court) a motion to amend or review the child support provision. The JDR court denied the motion,
and mother appealed the issue to the trial court on May 8, 2009. In addition, mother filed a motion
asking the trial court to order father to pay a portion of the children’s upcoming orthodontic
expenses.
After hearing evidence at hearings held on September 8, 2009 and October 13, 2009, the
trial court found that “father ceased cooperating with the current counselor in co-parenting
counseling as recommended, attributing to his failure to exercise visitation with the children as
scheduled by the prior order, a factor constituting the sole change in circumstances justifying
modification of the prior order.” The trial court ordered father to pay mother a monthly child
support payment of $1,286, commencing on December 1, 2009. In addition, the trial court denied
mother’s request that the child support award be retroactive to the date she filed her motion for
modification.
At the hearings, the trial court received evidence documenting the need for orthodontic
treatment for both children. The financial agreement documents showed that the estimated
post-insurance cost of D.K’s treatment was $4,255, payable in installments for twenty months. The
trial court found that D.K.’s need for orthodontics was “more urgent” than that of E.K. The trial
court ordered that in the event that D.K. received orthodontic treatment beginning no later than
February 1, 2010, father shall pay to the orthodontist $128 per month commencing on February 15,
2010 for a total payment of $2,825. In addition, the trial court found that orthodontic treatment for
-2-
E.K. was not “urgently needed or compelling at this time such as to justify an additional expense at
this time.” Thus, the trial court did not order father to pay for orthodontic treatment for E.K.
Mother appealed the trial court’s decision to this Court.
Analysis
“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.” Brown v. Brown, 30 Va. App. 532,
538, 518 S.E.2d 336, 338 (1999). Thus, on appeal, mother bears the burden of proving the trial
court abused its discretion.
Mother contends the trial court erred by failing to make the modified child support
payments retroactive to the date she filed her motion for modification.
“The court may . . . revise and alter . . . [a child support] decree . . . as the circumstances of
the parents and the benefit of the children may require.” Code § 20-108. Code § 20-108 further
provides that: “No support order may be retroactively modified, but may be modified with respect
to any period during which there is a pending petition for modification in any court, but only from
the date that notice of such petition has been given to the responding party.”
“Whether to make modification of a support order effective during a period when a petition
is pending is entirely within the discretion of the trial court.” O’Brien v. Rose, 14 Va. App. 960,
965, 420 S.E.2d 246, 249 (1992). The parties had agreed that mother would forego child support
payments until January 2010, barring a change in circumstances. Although the trial court found a
change in circumstances, under the circumstances of this case, we cannot say the trial court abused
its discretion in ruling that the support payments would commence on December 1, 2009.
Mother also argues the trial court erred by not ordering father to pay for the orthodontic
treatment expenses for the younger child, E.K.
-3-
Code § 20-108.2(D) provides that:
Except for good cause shown or the agreement of the parties, in
addition to any other child support obligations established pursuant
to this section, any child support order shall provide that the
parents pay in proportion to their gross incomes, as used for
calculating the monthly support obligation, any reasonable and
necessary unreimbursed medical or dental expenses that are in
excess of $250 for any calendar year for each child who is the
subject of the obligation.
Mother, as the party seeking recovery for unreimbursed expenses in the trial court, bore the
burden to show these expenses were reasonable and necessary. Code § 20-108.2(D). Further, on
appeal, mother has the burden of proving the trial court’s factual findings were plainly wrong or
without evidence to support them. Jennings v. Jennings, 12 Va. App. 1187, 1189, 409 S.E.2d 8, 10
(1991); Code § 8.01-680.
The trial court considered the recommendation of the children’s orthodontist as to the
needs of each child. The trial court found that D.K.’s need for orthodontic treatment was “more
urgent” than the need of E.K. for orthodontic treatment. It further found that E.K.’s orthodontic
treatment was not “urgently needed or compelling at this time.” Thus, on this record, the trial
court impliedly found that it was the orthodontist’s recommendation that D.K.’s treatment was
necessary while E.K.’s treatment was not necessary at this time.
We cannot say the trial court erred in construing the orthodontist’s recommendation. The
children’s orthodontist noted that because of D.K.’s age, treatment should begin “relatively
soon.” While treatment for E.K. was “recommended,” there is no such indication that it was
“necessary.” Thus, relying on the orthodontist’s recommendation, the trial court made a factual
determination that E.K.’s treatment was not necessary. We cannot say the trial court erred as a
matter of law in making such a determination. 1
1
Should E.K. undergo orthodontic treatment at a later time, nothing in this opinion
should be interpreted as preventing mother from seeking reimbursement for that cost pursuant to
-4-
Mother contends the trial court erred in calculating the amount of father’s monthly
obligation for the orthodontic treatment for D.K. The written statement of facts states that the trial
court found father was responsible for 67.6% of the total unreimbursed cost of the orthodontic
treatment for D.K. In the October 20, 2009 order, the trial court ordered father to pay the
orthodontist $128 per month for a total payment of $2,825. However, the figures on the
“Orthodontic Financial Agreement” document for D.K. do not comport with the trial court’s
calculations contained in the order. Because the trial court incorrectly calculated father’s monthly
obligation for D.K.’s orthodontic treatment, we reverse this portion of the trial court’s order and
remand the case to the trial court for the recalculation of father’s support obligation for the
orthodontic treatment for D.K.
For these reasons, we affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
Code § 20-108.2(D), assuming the trial court determines the cost of that treatment to be
reasonable and necessary.
-5-
Frank, J., concurring, in part, and dissenting, in part.
I concur with the majority opinion that the trial court did not err in not retroactively
modifying child support to March 2009 and that the trial court erred in calculating father’s
monthly payment for orthodontic treatment. However, because I believe the trial court
misapplied the facts to the statutory requirements of Code § 20-108.2(D), I respectfully dissent.
Dr. Thomas W. Butterfoss, D.M.D., opined that treatment for E.K. should begin “now, in
order to take advantage of his growth potential . . . .” Nothing in the doctor’s letter suggested it
would be appropriate to delay E.K.’s orthodontic treatment.
Nevertheless, the trial court concluded that the need for the eldest child’s treatment was
more urgent than E.K.’s. Further, the trial court stated that E.K.’s treatment “is not urgently
needed or compelling at this time such as to justify an additional expense at this time.” No
evidence supports this conclusion, nor does the statute allow the trial court to consider the
relative needs of the children’s competing medical interests.
As stated in the majority opinion, Code § 20-108.2(D) mandates any child support shall
provide for a proportional payment for “any reasonable and necessary unreimbursed medical or
dental expenses . . . .” Neither party questions the reasonableness of the orthodontic charges.
The only issue is whether that expense for E.K. is “necessary.” “Necessary” is defined as “of,
relating to, or having the character of something that is logically required.” Webster’s Third
New International Dictionary 1510 (1993). “Urgent” is defined as “calling for or demanding
immediate attention.” Id. at 2521.
The mandatory language of Code § 20-108.2(D) is clear. Other than by agreement of the
parties, or for good cause shown, the trial court, upon a finding that the medical or dental
treatment is “reasonable and necessary,” must apportion costs of such treatment. The language
of the statute is not permissive, but is mandatory.
-6-
The trial court made a factual finding E.K.’s orthodontic care was not “urgently
needed . . . .” This finding is plainly wrong and without evidence to support that finding. See
Carter v. Thornhill, 19 Va. App. 501, 509, 453 S.E.2d 295, 300 (1995). To the contrary,
Dr. Butterfoss opined E.K’s treatment should begin “now” and explained the need for the
immediate treatment. Further, the trial court did not find such treatment was not necessary, only
that it should be delayed.
I disagree with the majority’s conclusion that the trial court “impliedly found” that E.K.’s
treatment was not necessary at this time. We must look to the trial court’s finding that the
treatment was not “urgent,” hardly a finding, either express or implied, that such treatment is not
necessary.
I would find the trial court erred in not following the mandate of Code § 20-108.2(D). I
would remand for the trial court to determine if the requirements of that section have been met.
-7-