Charlottesville Divorce Lawyer Rob Hagy

Continuance Properly Denied Where Parent Failed to Subpoena Child in Custody of Other Parent; Father's Testimony Enough to Establish Day Care Costs; Portion of Military Pension Earned During "Temporary" Separation Still Marital Property

In the case of Reese v. Reese, the Virginia Court of Appeals, in an unpublished decision, ruled that the trial court correctly denied a mother’s request for a continuance of a custody hearing where she failed to exercise diligence in securing attendance of child witness and correctly determined the father's child care costs.  However, the trial court erred in its determination of the appropriate marital share of father’s military pension.

Mother failed to subpoena the child witness, the parties' daugther, instead relying on the fact that she listed in the child in her witness list.  At trial, father failed to bring the daughter with him.  Mother sought a continuance and the trial court ruled the father mother failed to exercise due dilligence in seeking the daughter's attendance at trial.  Due diligence requires, at a minimum, that a party attempt to subpoena the witness or provide a reasonable explanation why a subpoena was not issued.

Wife also contends that the trial court erred in finding that husband spent $800.00 per month in child care costs based upon his testimony alone.  The trial court accepted the testimony without corroboration finding that the amount was not unreasonable.  Because the credibility of a witness and the weight accorded the evidence are matters solely for the trial court determine, the Virginia Court of Appeals upheld the decision to accept the oral testimony alone as proof of the child care costs.

As for the matter of the military pension, the Virginia Court of Appeals ruled the trial court made a mistake by excluding vrom consideration that portion of the military pension acquired by husband while they were only temporarily separated.

Court of Appeals Upholds Child Support, Spousal Support and Equitable Distribution Rulings: Failure to Follow Appellate Procedure Again Prevents Consideration of Some Issues

In the case of Buch v. Buch, the Virginia Court of Appeals, in an unpublished opinion, upheld the trial court's child, spousal, and equitable distribution rulings. 

As for the matter of spousal support, the husband argued that the trial court’s determination of wife’s income and need and husband’s ability to pay was contrary to the evidence and that the trial court's award of spousal support for an indefinite duration was an abuse of discretion based upon the evidence presented.   

Whether and how much spousal support will be awarded is a matter of discretion for the trial court.  In fixing the amount of the spousal support award, a trial 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.

In this case, the trial court considered the statutory factors for awarding spousal support as set forth in Virginia Code Section 20-107.3(E). The trial court awarded wife spousal support of $2,000 per month. The trial court explained that it arrived at this figure by establishing wife’s base salary as a teacher and determining that her base income would be supplemented by some amount of tutoring.  Additionally, the trial court considered the standard of living established during the marriage and found that wife cannot approximate her marital lifestyle without spousal support.  The trial court also found that wife’s monetary and nonmonetary contributions combined were at least as substantial as husband’s income and her flexibility in career choice allowed him the ability to focus on his job.  The trial court complied with Code § 20-107.1 by considering the statutory factors and making appropriate findings identifying the factors supporting the spousal support award. As a result, the trial court did not abuse its discretion.

Husband also claimed on appeal that the court's ruling obligating him to pay by pay half of the children’s unspecified extracurricular expenses.  He argued that the court had already considered these expenses when arriving at wife’s spousal support award.  The Virginia Court of Appeals did not agree.  The trial court's order provides that any activity must be agreed to by the parties.  Therefore, he will not be subject to pay half of any activity unless he agrees to the activity. Moreover, wife had requested that husband pay a greater share of the children’s expenses.

As for the equitable distribution issues, the Virginia Court of Appeals refused to take up the matters citing Rule 5A:20 and Rule 5A:18. Rule 5A:20(e) requires that an appellant’s opening brief contain "[t]he principles of law, the argument, and the authorities relating to each question presented." Unsupported assertions of error "do not merit appellate consideration." Here, husband’s brief fails to comply with Rule 5A:20(e) because it solely relied on unpublished legal opinions as authority.  Moreover, husband failed to present any legal argument predicated on the legal analyses in these opinions, relying instead on conclusory statements. "‘Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration.’"

As for the child support issue, the matter of the allocation of a tax exemption, the husband waived that argument by failing to object to the trial court's refusal to grant him the exemption in violation of 5A:18.

As a result of these failures, the Virginia Court of Appeals granted wife's request for attorneys fees to defend the appeal, and remanded the case back to the trial court for a determination of the amount of the fees.

Trial Judge Erred in Denying Mother a Trial De Novo on Appeal to Circuit Court

In the case of Alexander v. Flowers, the Virginia Court of Appeals, in a published opinion, ruled that the trial judge erred in telling a mother appealing a JDR custody decision that if she had no new evidence to present, as indicated by his reading of the JDR trial transcript, he would leave custody with the father and in addition, impose a large attorney's fee award against the mother. 

The Virginia Court of Appeals Issued One Published and Two Unpublished Family Law Decisions Today

Retired Husband Denied Spousal Support Due to His Adultery

In the case of Toth v. Toth, the Fairfax Circuit Court denied a retired husbands request for spousal support as his wife was able to prove adultery with evidence from a private investigator who saw husband coming and going from his girlfriend's home, including an appearance by husband in his underwear.

The Virginia Court of Appeals Issued One Published and Four Unpublished Family Law Opinions Today

Appeals Court Remands Child Support Ruling: Circuit Court Ordered to Consider Current Employment Status and Income for Child Support Imputation Purposes

In the case of Broadhead v. Broadhead, the Virginia Court of Appeals, in a published opinion, held that the trial court erred in ruling that the father was voluntarily underemployed as compared to his employment at the time of the initial child support award, instead of considering his current employment.  Furthermore, the trial court erroneously considered the father's income at the time of the initial child support award, when he was making considerably more money, instead of his current income.

On the first issue, the Appeals Court found that the father did not voluntarily leave his positions as general counsel at Capital One or CitiFinancial, where he was making almost double his current income.  Against his consent, he was laterally moved within Capital One to a position for which he was not trained nor experienced, and then let go.  In between his employment with Capital One and CitiFinancial, the father started his own company, receiving no salary, but rather, he lived on his severance pay from Capital One.  Upon being employed with CitiFinancial, the father was required to work in Baltimore Monday through Friday, away from his home and children in Richmond.  After attempting to telecommute two days per week so he could spend time with his children, CitiFinancial required the father to revert back to working in Baltimore Monday through Friday, or lose his job.  Not wanting to give up his time with his children, the father chose to return to working for himself at the company he created, wherein his income was almost half of what he could have earned with Capital One or CitiFinancial.  The trial court erred in finding that the father was voluntarily underemployed based on his employment at the time of the initial child support award, instead of considering his current employment and the circumstances leading up to it.

Secondly, and based on the first incorrect ruling, the trial court erroneously considered the father's income at the time of the initial child support award in imputing income to him, instead of using the income he is, or should be, making currently.  Once the trial court reviews the issue of whether or not the father is currently voluntarily underemployed, then the correct imputation of income should be determined.

Trial Court Errs in Neglecting to Impute Income to Wife and Accepting Expenses Without Documentation

In the case of Brian McKee v. Barbara McKee, the Virginia Court of Appeals, in an unpublished opinion, held that the trial court erred in 1)  neglecting to impute income to the wife, and 2) partially erred in setting the spousal support at a sum unjustified by the wife's expenses and the husband's capacity to pay.  However, it found that on the third issue, husband's argument that the child support expenses were covered by the spousal support award, the court found that the husband defaulted procedurally.

On the first issue, the Appeals Court held that the "wife had a duty to earn money to reduce husband's spousal support obligation", even though she had been a homemaker for many years at the time of separation.  The wife held several degrees and could reasonably obtain a job that did not interfere with her child-rearing responsibilities.  At the time of the hearing, the couple's three minor children were all of school age and child care services were not an issue.

The second issue has three prongs.  The first prong is that the wife received the marital residence in the parties' property settlement agreement, and agreed to "indemnify and hold Husband harmless form any liability."  However, during the divorce hearing she sought to include the mortgage payment as part of her request for spousal support.  The Court held that the "circuit court erred in holding husband could be made to pay for wife's mortgage payment in spousal support.  The debt on the marital property received consideration in the parties' agreement when wife received the marital home and in exchange agreed to assume the debt."

The second prong of the issue addresses the wife's income and expense statement submitted to the court for consideration.  Husband claimed that "wife improperly sought spousal support for a number of expenses she either did not have or failed to document."  The Appeals Court agreed with the husband and held that the "wife failed to meet her burden regarding these expenses and the circuit court erred in considering them in the spousal support award". 

The third issue regards the husband's claim that the court "failed to consider his ability to pay the amount of spousal support awarded."  Husband claims a net income of $20,034 per month and expenses of $13,094.  Husband argues that the circuit court's order to pay, per month, $14,000 in spousal support, $1,680 in child support, and $429.50 for private school tuition, leaves him with insufficient funds to cover his expenses.  The court holds that the "husband's argument ignores the tax consequences of paying spousal support to wife," and that after his tax savings are taken into account, he actually pays $8,606 in spousal support per month.  The court further notes that husband purchased a million-dollar home after the separation for which he pays a $5,000 per month mortgage, and that the circuit court did not err in taking this into consideration when making their decision.  "The circuit court stated that it did not 'understand why he committed to this million dollar home right after separation before this was resolved ... he has to remember that his first obligation would be to his family'."

Lastly, the issue of whether or not the circuit court erred in awarding wife spousal support for expenses included in the child support award, the Court found that the husband defaulted procedurally on this issue because his counsel did not "raise the issue in question...before the circuit court," and therefore, "he has waived any arguments under it."

Parental Rights of Incarcerated Father Properly Terminated

In the case of McDonald v. the Henrico County Department of Social Services, the Virginia Court of Appeals, in an unpublished opinion, ruled that the trial court correctly terminated the parental rights of a father who was incarcerated for part of the child's time in foster care where clear and convincing evidence proved appellant failed to maintain contact with or substantially plan for the future of the child.

Code § 16.1-283(C)(1) requires proof, by clear and convincing evidence that:

The parent or parents have, without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of the child for a period of six months after the child’s placement in foster care notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to communicate with the parent or parents and to strengthen the parent-child relationship. Proof that the parent or parents have failed without good cause to communicate on a continuing and planned basis with the child for a period of six months shall constitute prima facie evidence of this condition.

[W]hile long-term incarceration does not, per se, authorize termination of parental rights or negate the Department’s obligation to provide services, it is a valid and proper circumstance which, when combined with other evidence concerning the parent/child relationship, can support a court’s finding by clear and convincing evidence that the best interests of the child will be served by termination.

In this case, father wrote child a few times, but stopped, failed to maintain phone contact with the child or with the DSS and failed to provide them any meaningful plan for how he would raise the child once released.

The father also argued that the DSS never provided him services to strengthen his relationship with his son.  Code § 16.1-283(C)(1) required DSS to prove that it made "reasonable and appropriate" efforts to communicate with the father and strengthen his relationship with the child. What constitutes "reasonable and appropriate" efforts can only be judged with reference to the circumstances of a particular case. In this case, the DSS had letter and phone contact with father, but father discontinued the contact, and will not be released from jail until 2013, which combined with the child's special needs, supports a finding that the DSS used reasonable and appropriate efforts.

Error in Preserving Issue Prevents Appeal; Procedural Issues Aside-Drug Use Supports Termination of Parental Rights

In the case of Staples v. Chesapeake Department of Social Services, the Virginia Court of Appeals, in an published opinion, affirmed a trial court's decision terminating of mother’s parental rights to her child where question of whether trial court erred in considering petition for termination because petition did not specify which subsection of Code § 16.1-283 appellee was proceeding under barred by Rule 5A:18 and because the evidence was sufficient to support termination.

At trial, mother never raised her claim that the court erred by considering the petition for termination because the petition did not specify under which subsection of Code § 16.1-283 DHS was proceeding.  This violates the well known procedural rule, 5A:18, that the Court of Appeals will not consider an argument on appeal which was not presented to the trial court.

In addition, the evidence supporting termination in this case was overwhelming.  The mother had a serious cocaine addiction which prevented her from caring for the child.