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In the case of Reese v. Reese, the Virginia Court of Appeals, in an unpublished decision, ruled that the trial court correctly denied a mother’s request for a continuance of a custody hearing where she failed to exercise diligence in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.

Larger Income Constitutes Material Change of Circumstance-Justifies Child Support Increase; Daycare Expenses Awarded

In the case of Stevens v. Stevens, the Circuit Court for Loudoun County, ruled that father's salary increase from approximately $90,000.00 to over $100,000.00 a year constitutes a material change of circumstance and awards mother more child support where mother's income had decreased and mother had child 115 days each year. The increase is awarded even though an expert testified on behalf of father that mother could make an additional 10,000 to 20,000 in imputed income.

The father asked for a deviation from the presumptive amount of child support set by the guidelines for three reasons: the imputed income to mother; that mother did not actually pay the day case expenses ($757.00) a month; and that father did not think son needed to be in the day care he was attending.

The court ruled that it would not deviate from the presumptive amount based upon the day care situation.  The parties had previously agreed on daycare at this daycare facility when it cost more to attend.  Father withdrew son based upon a series of disagreements with the daycare facility of tuition costs, lack of transportation from school to daycare, and the quality of the program provided.  But, the child was doing well at the daycare and mother could transport the child to daycare because of her flexible work hours.

This case is interesting because the judge offers some insight on the reasonableness of a specific type of work-related child care. The judge equated the analysis to that for determine whether private school costs should be taken into account in a child support proceeding.  In that situation, two conditions must exist: a demonstrated need coupled with the parents ability to pay.  In addition, the court must determine whether the child care is quality care from a licensed source pursuant to Virginia Code Section 20-108.2(F).  In this case, all three factors were present.

The court declined to inpute income because the father failed to present evidence of a means to cover child care costs of the mother took a higher paying job.  Father countered this by arguing that his new wife could preovide daycare.  The court declined to accept this approach, stating that child care by a step parent is not a good idea unless both parents agree.  Mother didn't agree.