Gordon Arthur Schroeter v. Alyce P. Schroeter

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia
GORDON ARTHUR SCHROETER
MEMORANDUM OPINION * BY
v. Record No. 2608-98-4 JUDGE JAMES W. BENTON, JR.
DECEMBER 28, 1999
ALYCE P. SCHROETER
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
John R. Prosser, Judge
William B. Allen, III (Amy B. Tisinger;
Allen & Allen, P.C., on brief), for
appellant.
Michelle M. Jones (Robert T. Mitchell, Jr.;
Hall, Monahan, Engle, Mahan & Mitchell, on
brief), for appellee.
This appeal arises from a final decree of divorce. Gordon
Arthur Schroeter contends that the trial judge erred in
determining child custody, visitation schedules, child support,
allocation of marital debts when decreeing as to the property of
the parties, and attorney's fees. For the reasons that follow, we
affirm the decree.
Gordon Arthur Schroeter and Alyce P. Schroeter were married
in 1994 and separated in 1997. One child was born during the
marriage. At the trial of the divorce proceeding, the husband and
wife stipulated that the divorce should be granted on the ground
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
that they had lived apart without interruption or cohabitation for
more than one year. They also stipulated that each would retain
the tangible personal property in his or her possession. Both
parties presented evidence and ore tenus testimony concerning
custody and visitation of their child, child support, equitable
distribution of their property, and attorney's fees.
I.
"[U]pon decreeing a divorce, . . . the [trial judge] may make
such further decree as [the judge] shall deem expedient concerning
the custody or visitation and support of the minor children of the
parties." Code § 20-107.2. "The authority granted the trial
[judge] by Code § 20-107.2 to determine custody and require
support of infant children in a divorce action is a matter of
judicial discretion to be exercised with the child's welfare as
the paramount consideration." D'Auria v. D'Auria, 1 Va. App. 455,
461, 340 S.E.2d 164, 168 (1986). Furthermore, our review of
custody decisions is controlled by the following well established
principles:
The trial [judge's] decision, when based
upon an ore tenus hearing, is entitled to
great weight and will not be disturbed
unless plainly wrong or without evidence to
support it. It is appropriate that this be
the rule governing our review of appeals
because the trial judge was in a position to
see and hear the witnesses, and to closely
examine the evidence. As such, his findings
are entitled to an appropriate degree of
respect.
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Simmons v. Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199
(1986).
Under equally well established principles, we review the
evidence in the light most favorable to the party who prevailed
below, in this case the wife. The ore tenus testimony
concerning custody and the other issues raised at trial is
summarized in a statement of facts. See Rule 5A:8. Our review
of the statement of facts discloses that the issues that the
husband raises on appeal were disputed by the parties. Indeed,
the summary of the wife's testimony establishes that she
contradicted the husband on most material issues.
In making his custody determination, the trial judge ruled
"after hearing evidence ore tenus, and after consideration of
all of the factors set forth in [Code] § 20-124.3." Upon our
review of the summary of the testimony, we cannot conclude that
the wife's testimony was incredible or did not plainly support
the judge's ruling. See Douglas v. Hammett, 28 Va. App. 517,
525, 507 S.E.2d 98, 102 (1998) (noting that when the trial judge
determines the credibility of witnesses who testify ore tenus,
we give that ruling great weight).
In reviewing the record, we find apt the following ruling
in Ford v. Ford, 14 Va. App. 551, 419 S.E.2d 415 (1992):
Following extensive and detailed
testimony by the various witnesses, the
trial [judge] was in effect asked to
evaluate the moral climate of the home [in]
which [the child lived]. Especially in
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light of the strict standard that governs
this Court's review of the trial [judge's]
final determinations, we do not find that
the trial [judge] abused [his] discretion
when [he] awarded the parties joint custody.
Id. at 555, 419 S.E.2d at 418. This record in this case,
likewise, fails to show an abuse of discretion.
II.
The husband contends the trial judge also erred (1) "in
[his] determination of the visitation schedule," (2) "in not
considering the work related child care costs and expenses
incurred by the [husband]," and (3) "in not granting a statutory
deviation from the Child Support Guidelines for the costs and
expenses for transportation to be incurred by the [husband]."
The record does not reflect that the husband objected to any of
the trial judge's rulings concerning visitation or child
support. In accord with Rule 5A:18, "[w]e will not consider for
the first time on appeal an issue that was not preserved in the
trial court." Martin v. Martin, 27 Va. App. 745, 752, 501
S.E.2d 450, 453 (1998).
III.
Based upon findings regarding the parties' property and
their debts and upon "consideration of all the factors set forth
in [Code] § 20-107.3," the trial judge decreed as to the
parties' property.
The record contains evidence that the husband's income and
earning capacity were greater than the wife's. The husband also
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had a larger share of assets. We find nothing in the record to
support the husband's claim that the trial judge "erred in . . .
the allocation of [the parties'] marital debt.'"
The statute does not contain a presumption of equal
distribution of assets or debts. See Papuchis v. Papuchis, 2
Va. App. 130, 132, 341 S.E.2d 829, 830 (1986). When, as in this
case, the trial judge considers the statutory factors in making
the determinations of equitable distribution, we will not
reverse those decisions absent a showing of an abuse of
discretion. See Robinette v. Robinette, 10 Va. App. 480, 486,
393 S.E.2d 629, 633 (1990).
IV.
"An award of attorney's fees is a matter submitted to the
trial court's discretion and is reviewable on appeal only for an
abuse of discretion." Graves v. Graves, 4 Va. App. 326, 333,
357 S.E.2d 554, 558 (1987). This was a case in which issues of
custody, visitation, child support, spousal support, and
equitable distribution were contested at trial. We find no
basis to conclude that the trial judge abused his discretion in
awarding to the wife her attorney's fees.
V.
Upon the wife's motion and because the husband raised a
substantial number of meritless issues, we hold the wife is
entitled to attorney's fees for this appeal. Accordingly, we
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remand this case to the trial judge solely to award a reasonable
attorney's fee in favor of the wife for this appeal.
For these reasons, we affirm the decree and remand for the
limited purpose of awarding attorney's fees.
Affirmed and remanded.
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