David L. Ridenour v. Laura M. Ridenour

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Huff and O’Brien
Argued by videoconference
PUBLISHED
DAVID L. RIDENOUR
OPINION BY
v. Record No. 1889-19-4 JUDGE GLEN A. HUFF
OCTOBER 20, 2020
LAURA M. RIDENOUR
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Jeanette A. Irby, Judge
Sonya L. Powell (Powell Radomsky, PLLC, on briefs), for
appellant.
Lawrence D. Diehl (Barnes & Diehl, P.C., on brief), for appellee.
David Ridenour (“husband”) appeals from the final decree of divorce which awarded
Laura Ridenour (“wife”) child support in the monthly sum of $10,336. Husband contends that
the trial court erred by deviating from the child support guidelines to include expenses for one of
the children’s occupational therapist. Husband contends that such expenses were required to be
treated as unreimbursed medical expenses and, therefore, excluded from the calculation of the
child support award.
This Court disagrees. The applicable statutes do not mandate that the child’s
occupational therapy expenses be treated only as unreimbursed medical expenses and
categorically excluded from consideration when fashioning a child support award. The statutory
scheme maintains the discretion of trial courts to evaluate the facts of individual cases and
deviate from the child support guidelines in appropriate circumstances. Because the trial court
did not abuse its discretion in determining that this case presented a unique situation justifying
deviation from the child support guidelines, this Court affirms.
I. BACKGROUND
“Under familiar principles, we view [the] evidence and all reasonable inferences in the
light most favorable to the prevailing party below. Where, as here, the court hears the evidence
ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly
wrong or without evidence to support it.” Pommerenke v. Pommerenke, 7 Va. App. 241, 244
(1988) (quoting Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20 (1986)). So
viewed, the evidence is as follows:
Husband and wife were married on January 1, 2005 and separated on May 31, 2018. The
couple had five children, including B.R. who was born in 2009. When B.R. was eight months
old, he suffered a tragic fall, which resulted in a traumatic brain injury. As a result, B.R. suffers
from a cognitive communication disorder, frontal lobe dysfunction, visual spatial deficits,
possible seizure disorder, and attention deficit disorder. Despite being ten years old at the time
of the trial below, B.R. functioned at approximately the level of a four to five-year-old child.
B.R. has worked with Beatrice Bruno, an occupational therapist,1 since 2011. Bruno
began working with B.R. as a member of a treatment team including multiple other therapists
who worked with B.R. in different areas such as speech and physical therapy. However, due to
her strong relationship and consistent success working with B.R., Bruno has been B.R.’s sole
therapist in recent years. Bruno now works with B.R. in multiple therapeutic disciplines,
including occupational, physical, and speech therapy. Due to the nature of B.R.’s disabilities and
1
The term “occupational therapy” is more inclusive than the term “occupation”
colloquially implies. As Bruno explained at trial, occupational therapists help their patients to
learn or improve doing their daily tasks. Bruno’s role as an occupational therapist includes
assisting B.R. with learning to accomplish daily tasks such as brushing his teeth or showering
unassisted.
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the care he needs, Bruno’s therapy also often overlaps with care-giving tasks such as bathing
B.R., feeding him, or putting him to bed.
Bruno also spends time working with the couple’s other children. This time includes
working with them on how to best communicate and interact with B.R. However, on at least one
occasion Bruno also accompanied the couple’s other children to a psychological evaluation.
On that occasion, Bruno acted as their caretaker, speaking with the psychologist, escorting the
children to their evaluations, and caring for the children when they became upset during their
evaluations.
Although her hours vary, Bruno works with B.R. approximately thirty-five hours per
week. However, the entirety of those thirty-five hours is not spent on occupational therapy.
Bruno’s most recent treatment plan for B.R. calls for ten hours per week of occupational therapy.
As Bruno explained, the ten hours per week of occupational therapy represents a goal and
assumes that other therapists—such as physical therapists and speech therapists—would take
over some aspects of care for B.R. At the time of trial, her thirty-five hours per week
represented a mix of occupational therapy and other services, such as physical and speech
therapy for B.R. Bruno’s services cost approximately $8,000 per month, depending on the
specific number of hours spent with B.R.
B.R.’s need for continuing therapy was uncontested at trial. The parties also agreed that
Bruno would remain B.R.’s main therapist for the foreseeable future and that her costs should be
apportioned 80% to husband and 20% to wife in accordance to their proportional income. An
issue arose as to whether Bruno’s fee should be considered an unreimbursed medical expense
that would not be a part of child support calculations or whether they would present good cause
to deviate from the child support guidelines. When asked at the outset by the trial court,
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husband’s counsel indicated that a deviation may be appropriate, but equivocated and said that it
would be necessary to speak with husband before giving the court any definite answer.
No further argument on the matter was heard until closing arguments. During husband’s
closing arguments, he contended that Bruno’s expenses should be considered unreimbursed
medical expenses as a matter of law, which would result in their exclusion from the child support
calculations. The trial court rejected husband’s argument, holding that his counsel’s statements
at the outset of trial bound husband to the position that a deviation was the appropriate
mechanism for allocating the cost of Bruno’s care.
In granting the final decree of divorce, the trial court determined that Bruno’s services
were not limited to therapy. The trial court found that “she sometimes served as a caretaker for
the other children. She also provided respite time for [mother].” Because of this array of
services, the trial court reasoned, B.R.’s needs and Bruno’s multi-faceted work justified a
deviation from the child support guidelines. The trial court added husband’s portion of her
$8,000 monthly fee to his child support obligation. This appeal followed.
II. STANDARD OF REVIEW
“The determination of child support is a matter of discretion for the circuit court, and
therefore we will not disturb its judgment on appeal unless plainly wrong or unsupported by the
evidence.” Niblett v. Niblett, 65 Va. App. 616, 624 (2015). That discretion, however, is not
unbounded. The applicable statutes set forth mandatory steps that courts must follow when
exercising their discretion. Id. Therefore, “[u]nless it appears from the record that the circuit
court judge has abused his discretion by not considering or by misapplying one of the statutory
mandates, the child support award will not be reversed on appeal.” Id. (quoting Milam v. Milam,
65 Va. App. 439, 451 (2015)).
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III. ANALYSIS
Husband contends that the trial court erred in two ways. First, husband avers that the trial
court’s findings that Bruno acted “as a caretaker for the other children” and “provided respite
time” for mother are plainly wrong and without evidence to support them. Second, husband
avers that Bruno’s care was required, as a matter of law, to be categorized as an unreimbursed
medical expense and excluded from child support calculations. Therefore, husband contends that
the trial court erred in deviating from the child support guidelines to include the cost of Bruno’s
care. Wife, for her part, contends that husband’s entire argument is precluded by the doctrine
prohibiting a party from approbating and reprobating.2
Even if this Court were to assume that all of Bruno’s work constituted an unreimbursed
medical expense, that would not remove the discretion available to the trial court, in the
appropriate case, to deviate from the child support guidelines. The applicable statutes do nothing
more than set forth a default rule for allocating unreimbursed medical expenses. That default
rule is incorporated as a part of the child support guidelines. See Code § 20-108.2(D). The
presumption, however, that the guidelines provide “the correct amount of child support to be
awarded” may be rebutted upon a finding that such award “would be unjust or inappropriate in a
particular case as determined by relevant evidence pertaining to the factors set out in
2
Wife also avers that husband’s assignments of error are barred because they challenge a
ruling the trial court did not make. Husband’s assignments of error challenge the trial court’s
inclusion of “medical expenses” as a deviation from the child support guidelines as opposed to
treating them as unreimbursed medical expenses under Code § 20-108.2(D). Wife argues that
this renders husband’s assignments of error fatally flawed because the trial court “did not find
that the expenses were all medical and therefore never ruled that said expenses should be subject
to that section of the Code.” Wife contends that this is apparent because the trial court found that
Bruno provided an array of different services that extended beyond solely “medical expenses.”
However, husband specifically challenges the trial court’s factual findings on those matters as
part of his overall argument. Therefore, this Court finds no merit in wife’s attempt to
reformulate husband’s argument and then seek a procedural dismissal based on that reframing.
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§ 20-108.1.” Code § 20-108.2(A). The factors to be considered pursuant to Code § 20-108.1
include “[a]ny special needs of a child resulting from any . . . medical condition.”
Code § 20-108.1(B)(8). Therefore, none of the guidelines’ provisions remove a trial court’s
discretion to deviate from the child support guidelines, including, when warranted, awarding a
monetary award for expenses that would be considered unreimbursed medical expenses. In light
of the foregoing, wife’s preclusion arguments become moot, and this Court finds no error in the
trial court’s ruling.
Code § 20-108.2 governs how the child support guidelines are calculated. Each of its
subsections provide one part of the process. Subsection B sets forth a schedule, based on the
number of children and the combined gross monthly income of the parties, that determines the
“basic child support obligation.” Subsection C defines what is considered as a part of gross
monthly income for purposes of subsection B. Subsections E and F define how to calculate costs
for insurance and child-care, respectively. Both provide that the resulting costs “shall be added
to the basic child support obligation.” Pertinent to this appeal, subsection D deals with
“unreimbursed medical expenses.” It 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. . . . Any
amount paid under this subsection shall not be adjusted by, nor
added to, the child support calculated in accordance with
subsection G.
Code § 20-108.2(D). Lastly, subsection G provides instructions on calculating the overall child
support in different custodial scenarios based on the preceding subsections. In other words,
subsection G explains how to combine the “basic child support obligation” gleaned from
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subsection B with the other costs calculated in subsections D, E, and F to arrive at the proper
child support guideline calculations.
As Code §§ 20-108.1(B) and -108.2(A) clarify, the result of those calculations is only
presumptively correct. In cases where a trial court finds that application of those guidelines
would be unjust or inappropriate, the trial court may deviate from the presumptive sum in order
to set an appropriate child support award tailored to the facts of that case. Contrary to husband’s
assertions, the discretion given to trial courts to fashion equitable awards in cases where
deviations are appropriate is not limited to merely altering the “basic child support obligation”
found in Code § 20-108.2(B). Rather, trial courts, when the evidence supports it, have the power
to modify the overall child support from that which is established by the guideline calculations,
including modifying allocation of any unreimbursed medical expenses or child-care and
insurance costs. Therefore, Code § 20-108.2(D) does not require that unreimbursed medical
expenses be categorically excluded from child support calculations as a matter of law. It merely
sets a default rule that is presumptively correct. In other words, Code § 20-108.2(D) does not
limit a trial court’s discretion after it makes a finding under Code § 20-108.2(A) that application
of the guidelines would be unjust or inappropriate. After making such a finding, a trial court has
the power to alter any portion of the guideline calculations to arrive at a just and equitable
award.3
In this case, the trial court found that B.R.’s extensive medical disabilities resulting from
his traumatic brain injury justified a deviation from the child support guidelines. Furthermore, it
found that B.R.’s extensive disabilities required a wide range of treatment which included more
than just occupational therapy for B.R., but also warranted various caretaker functions and
3
Of course, a just and equitable award necessarily implies that parties are prohibited
from seeking a double recovery.
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respite care for mother as well. For years, that treatment had been supplied by a single provider
due to Bruno’s unique success in working with B.R. across the entire spectrum of his
impairments. These facts, the trial court reasoned, rendered an unmodified application of the
child support guidelines inappropriate.
Given these facts, this Court holds that the trial court did not abuse its discretion in
fashioning the child support award as it did. B.R.’s medical disabilities present a unique
challenge. Furthermore, the evidence supports the trial court’s findings that B.R. and mother
require, and Bruno provides, additional caretaker and respite care services. Both Bruno and
mother testified that Bruno often assists B.R. with everything from brushing his teeth to going to
bed. Bruno’s high level of involvement in these tasks provides mother with respite time she
would not otherwise have to focus on the other children or other aspects of her life. This is also
true for periods of time in which Bruno works with the other children on improving their
communication and relationship with B.R. While these tasks fall under the ambit of therapy in
many senses, that does not mean they are not also caretaking and respite care functions. Indeed,
the severity of B.R.’s disabilities and the complexity of his care underscores the uniqueness of
this case. Recognizing the unique challenges to be addressed in providing appropriate child
support in the case, the trial court deviated from the child support guidelines in order to fashion
an appropriate award which included the cost of B.R.’s unique medical care. This Court finds no
error in the trial court’s decision.
IV. CONCLUSION
The trial court’s finding that application of the child support guidelines was unjust and
inappropriate in this case is supported by credible evidence. Therefore, Code § 20-108.2(D) did
not require any unreimbursed medical expenses to be categorically excluded from child support
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calculations as a matter of law. Accordingly, the trial court did not abuse its discretion when it
fashioned the child support award in this case.
Affirmed.
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