Alexander Figueroa v. Kimberly S. Nelson, f/k/a Kimberly Figueroa

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia
ALEXANDER FIGUEROA
MEMORANDUM OPINION* BY
v. Record No. 2221-04-4 JUDGE JAMES W. BENTON, JR.
AUGUST 2, 2005
KIMBERLY S. NELSON, F/K/A
KIMBERLY FIGUEROA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
Ted Kavrukov (Law Offices of Ted Kavrukov, on briefs), for
appellant.
Benton S. Duffett, III (Grenadier, Anderson, Simpson, Starace &
Duffett, P.C., on brief), for appellee.
The trial judge denied Alexander Figueroa’s motions for changes in child custody and
visitation, found Figueroa in “willful contempt” of several orders, and granted, in part, Kimberly
Nelson’s motions to modify child support and visitation. Figueroa appeals and presents six issues
for review. We affirm the trial judge’s order on all issues.
I.
Kimberly Nelson and Alexander Figueroa were divorced by a final decree in 2003. During
the divorce proceedings, the trial judge entered a consent order on March 10, 2003 that contained
extensive agreements between the parties covering custody and visitation for their two children.
The order contained the following provisions:
1. That [Nelson] is hereby granted sole legal custody of the minor
children . . . .
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
2. That [Nelson] is hereby granted sole physical custody of the
minor children . . . .
* * * * * * *
9. [Figueroa] shall forthwith participate in an anger management
program to learn to effectively direct his emotions.
10. [Figueroa] shall forthwith participate in ongoing individual
counseling or psychotherapy . . . .
* * * * * * *
24. . . . [Figueroa] agrees that during his Wednesday mid-week
visitation with [the son], he agrees that he shall actively support
[the son’s] participation in gymnastics, and shall transport [the son]
to and from gymnastic class.
The trial judge entered a support order on March 28, 2003, which contained several
provisions concerning specific payments. For example, it contained the following provisions
relating to medical expenses for the children:
3.A.(1). In addition to the support amount set forth above,
[Figueroa] shall pay or reimburse to [Nelson], 57.4% of the
extraordinary medical expenses (pursuant to subsection D and G3
of [Code] § 20-108.2) of the children within 10 days of [Nelson]
presenting documentation of the same. The Court finds that [the
daughter’s] premature delivery is extraordinary in nature, and as a
result, [Figueroa] shall pay or reimburse to [Nelson] 57.4% of all
of [the daughter’s] medical expenses associated with her premature
delivery and related complications/treatment.
The final decree of divorce incorporated by reference the parties’ property settlement
agreement. Three paragraphs of the agreement address the issue of attorney’s fees.
In May 2004, Figueroa filed a motion to change primary physical custody of the children,
or alternatively for joint legal custody, and to increase his visitation. Nelson filed a petition to
show cause for contempt and a motion to modify visitation and child support. Nelson’s
contempt petition alleged that Figueroa had not paid for medical expenses, had not supported
their son’s gymnastic classes, failed to participate in an anger management program, and had put
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the daughter’s health at risk when he sought medical treatment for her in violation of his role as a
non-custodial parent.
Following evidentiary hearings, the trial judge denied Figueroa’s motion in its entirety.
She made extensive findings and found Figueroa in willful contempt of the March 10, 2003
consent order. Pertinent to this appeal, she ordered Figueroa to reimburse Nelson $200 for the
son’s gymnastic classes, to comply with the order requiring Figueroa to actively support the
son’s participation in gymnastics, and to reimburse Nelson for his share of the children’s
extraordinary medical expenses. The trial judge awarded Nelson attorney’s fees in the amount of
$15,000. The trial judge also modified Figueroa’s visitation rights, finding that his mid-week
visitation with his daughter was not in the child’s best interest.
II.
Figueroa contends the award of attorney’s fees violated paragraph 39 of the property
settlement agreement. This paragraph provides that “[t]he parties hereby mutually release one
another from any further obligation to pay any other or further counsel fees on behalf of one
another in connection with any matter or thing whatsoever . . . .”1
1
The parts of the agreement that address attorney’s fees read as follows:
6. The parties agree that, in the event of a default in this
agreement, the defaulting party shall be responsible for all
reasonable fees and costs (attorney’s fees, court costs, and the like)
incurred by the party seeking enforcement of this Agreement.
19. Each of the parties shall hold the other harmless from any
and all liability of every kind on his or her specific obligations
under this agreement and shall indemnify the other for any
expense, including counsel fees, he or she may necessarily incur in
connection with compliance or default therewith.
39. [Figueroa] and [Nelson] agree to pay for their respective
counsel fees and costs for all legal services rendered or to be
rendered to them in connection with their separation and divorce.
The parties hereby mutually release one another from any further
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In awarding Nelson attorney’s fees, the trial judge ruled “that the language of the parties’
property settlement agreement that each party will be responsible for his or her attorney’s fees
does not prevent the court from awarding fees and costs for subsequent child custody litigation in
which the father was held in contempt of prior court orders.” This ruling is supported by well
established case decisions.
[C]ourts have the power to award counsel fees incurred in divorce
cases where contempt proceedings have to be initiated and
conducted to enforce an order of the court. This is particularly true
where the custody of a child, or child support, is involved because
of the court’s continuing concern for the welfare of children, and
because a parent’s common law duty to support his or her children
is not affected by the entry of a final decree in a divorce case
terminating the parent’s marital relationship.
An aggrieved party to a divorce suit has the right to petition for
relief, and the court has the authority to hold the offending party in
contempt for acting in bad faith or for willful disobedience of its
order. Consistent with our prior decisions, we hold that in such
cases a court has the discretionary power to award counsel fees
incurred by an aggrieved party incident to contempt proceedings
instituted and conducted to obtain enforcement of an order of the
court.
Carswell v. Masterson, 224 Va. 329, 332, 295 S.E.2d 899, 901 (1982). See also Edwards v.
Lowry, 232 Va. 110, 114, 348 S.E.2d 259, 262 (1986); Arvin, Inc. v. Sony Corp., 215 Va. 704,
705-07, 213 S.E.2d 753, 755 (1975); Sullivan v. Sullivan, 33 Va. App. 743, 752-53, 536 S.E.2d
925, 930 (2000).
No contractual agreement between the parties constrained the trial judge from enforcing
the March 10, 2003 order. This proceeding involved the court’s contempt power, which was
invoked because of Figueroa’s “willful disobedience” of the court’s order. Carswell, 224 Va. at
obligation to pay any other or further counsel fees on behalf of one
another in connection with any matter or thing whatsoever, except
as provided for in this Agreement.
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332, 295 S.E.2d at 901. Upon a finding of contempt, the trial judge’s power to enforce the
court’s order included the authority to award attorney’s fees. Id.
In such cases, an award of attorney’s fees is a matter submitted to the sound discretion of
the trial judge and is reviewable on appeal only for an abuse of discretion. Sullivan, 33 Va. App.
at 753, 536 S.E.2d at 930; 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 of the circumstances
revealed by the record. McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985).
The record does not establish that the trial judge abused her discretion in making the
award. The trial judge found that Figueroa had not paid for the daughter’s medical expenses, he
had not supported his son’s participation in gymnastics, and he sought medical treatment for the
daughter in willful violation of Nelson’s custodial status. The trial judge ruled that Figueroa
“willful[ly]” disobeyed these provisions of the March 10, 2003 consent order. The award of
attorney’s fees was proper and reasonable under the circumstances as a means of enforcement of
the contempt findings.
III.
Figueroa contends that the trial judge violated “his [and his] children’s federally
protected rights” by interfering with his right to parent his child. He cites numerous federal
decisions, including Roberts v. United States Jaycees, 468 U.S. 609, 617-20 (1984), and
Santosky v. Kramer, 455 U.S. 745, 753 (1982), and he also cites our decision in Eichelberger v.
Eichelberger, 2 Va. App. 409, 345 S.E.2d 10 (1986). Specifically, he argues that neither the
judge nor the custodial parent may restrict activities during his visitation “in the absence of a
finding that the activity presented a danger to the child or otherwise affected the child’s welfare.”
Id. at 410-11, 345 S.E.2d at 11.
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Figueroa did not point to any place in the record where he properly preserved for appeal
the issue of a violation of his federally protected rights. Contrary to our Rules, he failed to
provide “a clear and exact reference to the page(s) of the transcript, . . . record, or appendix
where [the] question was preserved in the trial court.” Rule 5A:20(c). This issue was not one of
the objections that he noted to the order from which this appeal arises. Thus, we have no
indication he raised the issue of “federally protected rights” at trial, and we are barred from
considering the issue by Rule 5A:18.
To the extent Figueroa generally contends the trial judge erred by placing limitations on
his visitation, we conclude the arguments lack merit. Figueroa argues the trial judge “did not
follow Eichelberger” when the trial judge made his visitation “subject to Nelson’s whim,” held
him in contempt for not taking his son to gymnastics class, and held him in contempt for taking
the daughter to the hospital “on his visitation time.”
When a party contends on appeal that the trial judge “erred in [determining] . . . custody
and . . . visitation . . . [issues], we consider the evidence in the light most favorable to the party
prevailing below, and will reverse only if the decree is plainly wrong or is without evidence to
support it.” Wilson v. Wilson, 12 Va. App. 1251, 1254, 408 S.E.2d 576, 578 (1991). Viewed in
this light, the evidence proved Figueroa failed to take his son to gymnastics class in violation of a
consent order. Although Figueroa claims that the trial judge erred by requiring this activity, we
note that Figueroa agreed in the consent order to “actively support [the son’s] participation in
gymnastics.” The trial judge did not limit Figueroa’s activity; the judge merely required him to
comply with the consent order.
Figueroa argues that the trial judge violated Eichelberger by holding him in contempt for
taking the daughter to the hospital. There is no indication in the record that the trial judge
attempted to limit Figueroa’s legitimate activities with his daughter. The child’s primary
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physician testified that the child has cerebral palsy and perinatal asphyxia. Nelson has sole
custody and is responsible for the child’s medical care. In contravention of his non-custodial
status, Figueroa took the child to the hospital to receive medical treatment from a physician for a
matter which is not apparent in the record. This physician had no background or information on
the daughter’s complicated medical history and prescribed a medicine that the primary physician
would not have. Figueroa knew this and again attempted to schedule another appointment
without notifying Nelson or the child’s primary physician. The record supports the trial judge’s
decision to sanction Figueroa for these transgressions and to “enjoin [Figueroa] from taking [the
children] to any non-emergency medical appointments.”
Figueroa also argues that the trial judge made his visitation subject to Nelson’s whim. He
does not substantiate this claim with any facts, authority, or citations to the record. “Statements
unsupported by argument, authority, or citations to the record do not merit appellate
consideration. We will not search the record for errors in order to interpret the appellant’s
contention and correct deficiencies in a brief.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992).
IV.
Figueroa contends “there were no extraordinary medical expenses” for his daughter and,
even if any existed, Code § 20-108(D) should have controlled the judge’s decision.
The parties’ daughter suffers from cerebral palsy and numerous complications. At the
hearing, Nelson testified that she had given Figueroa medical bills for ongoing extraordinary
medical care incurred on behalf of the children and that Figueroa had failed to make payment as
was required by the March 28, 2003 order. Trial exhibits documented the nature and amount of
those expenses.
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When the March 28, 2003 order was entered, Code § 20-108.2 defined extraordinary
medical and dental expenses as “uninsured expenses in excess of $100 for a single illness or
condition and shall include but not be limited to eyeglasses, prescription medication, prostheses,
and mental health services whether provided by a social worker, psychologist, psychiatrist, or
counselor.” Applying the terms of the March 28, 2003 order, the trial judge required Figueroa to
pay $1,069.54 for the medical expenses. The trial judge also found that “henceforward this is
probably taken care of by the amendment to the code . . . the custodial parent is responsible for
the first $250, and everything after that is an extraordinary medical expense.”
The record supports these findings. Therefore, the trial judge did not err.
V.
Figueroa contends that the trial judge should not have held him in contempt “for
exercising his right to visitation without the interference of Nelson.”
While it is true that the trial judge found that Figueroa’s failure to place his daughter in
the prescribed position in the car seat was “an example of his tin ear when it comes to assessing
[the daughter’s] physical needs,” the record does not indicate the trial judge found him in
contempt for that conduct. It was just an example, among many, that demonstrated his conduct
and was relevant to the custody issue then also pending before the trial judge.
Nelson’s petition alleged that Figueroa violated five provisions of the court’s prior
orders. The trial judge made specific findings on the record at the August 6, 2004 hearing
regarding Figueroa’s conduct that formed the basis of the contempt finding. Those findings were
made in response to the specific acts alleged in the contempt petition as being violative of the
court’s orders and were based on the evidence adduced at the evidentiary hearing.
Figueroa argues that the evidence fails to prove willfulness in violating these orders and,
thus, asserts that the trial judge erred by finding him in contempt. “A trial court has the authority
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to hold an offending party in contempt for acting in bad faith or for willful disobedience of its
order.” Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d 666, 669 (1991) (emphasis
added).
The evidence proved Figueroa failed to pay his share of the medical expenses, sought
medical treatment for the daughter in violation of Nelson’s role as the custodian, and failed to
support the son’s gymnastic program. Figueroa’s contention that the record failed to prove
willfulness is frivolous in light of his statements and conduct. For example, in an email,
Figueroa wrote to Nelson: “If you put him in gymnastics on Wednesdays, he will NOT attend.”
The record proved Figueroa repeatedly failed to perform this task over a two-month period. The
record fails to establish that the trial judge erred.
VI.
Figueroa contends that the trial judge violated his right to due process when she failed to
enforce his subpoena to compel the chief of police to testify.
The trial judge did not prohibit Figueroa from offering evidence about the crime rates in
the mother’s neighborhood, she simply refused to enforce the subpoena for the chief of police to
testify. Although Figueroa contends he argued that the refusal violated his right to due process,
he has not specified the place in the record where he argued this due process issue in the trial
court or where he offered a proffer of the chief of police’s expected testimony regarding crime
rates in the mother’s neighborhood. “Statements unsupported by argument, authority, or
citations to the record do not merit appellate consideration. We will not search the record for
errors in order to interpret the appellant’s contention and correct deficiencies in a brief.”
Buchanan, 14 Va. App. at 56, 415 S.E.2d at 239.
The brief fails to demonstrate reversible error. Moreover, the record in this case does not
support a claim that the trial was unfair in any respect.
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VII.
Figueroa contends that the trial judge’s order included “non-litigated” items. He argues
that “opposing counsel . . . ‘took the liberty’ of adding ‘substance’ to [the judge’s] rulings.”
This claim lacks merit. The record showed that Nelson’s attorney drafted the order.
Figueroa’s attorney objected to certain language in paragraphs 8, 10, and 18. Prior to entering
the order, the trial judge entertained Figueroa’s line-by-line objections to the language and
overruled most of his objections. The judge amended other portions of the order per Figueroa’s
request. The judge also offered to consider a draft of an order with language Figueroa deemed
appropriate and promised to rule on the requested changes. Figueroa apparently never took the
opportunity the judge offered.
VIII.
We grant Nelson’s motion for a reasonable attorney’s fee for this appeal. For the reasons
we have given, we affirm the trial judge’s rulings on all issues and remand to the trial judge to
fix a reasonable attorney’s fee for this appeal.
Affirmed and remanded.
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