Kirk T. MILAM v. Sheila J. MILAM.
Record No. 0079-15-4
Court of Appeals of Virginia, Alexandria
Nov. 17, 2015
778 S.E.2d 535
Peter W. Buchbauer (Buchbauer & McGuire, P.C., on brief), Winchester, for appellee.
Present: PETTY, ALSTON, JJ. and FELTON, Senior Judge.
PETTY, Judge.
Kirk T. Milam (“father“) assigns nine errors to the circuit court‘s award of increased child support. He assigns errors to the court‘s factual finding of income for Sheila J. Milam (“mother“), to the court‘s factual finding of his income, and to the court‘s resulting determination of his child support obligation. Father argues, among other things, that the circuit court erred in increasing his child support obligation because his motion was entitled “Motion to Reduce Child Support” and mother did not expressly present a request for an increase.
I. BACKGROUND
On appeal, we view the evidence “in the light most favorable to the prevailing party below and its evidence is afforded all reasonable inferences fairly deducible therefrom.” Bristol Dep‘t of Soc. Servs. v. Welch, 64 Va.App. 34, 40, 764 S.E.2d 284, 287 (2014) (quoting Logan v. Fairfax Cty. Dep‘t of Human Dev., 13 Va.App. 123, 128, 409 S.E.2d 460, 462 (1991)). In this case, mother prevailed below.
Mother and father were married in 1994 and had five children together. At the time of the modified final divorce decree on April 9, 2012, three of the children were minors. One son was over eighteen years old but had not yet graduated from high school. These four children continued to live with mother during the period relevant to this appeal.
On May 3, 2012, father appealed to this Court the final divorce decree. On June 29, 2012, after his son graduated from high school, father filed “Defendant‘s Motion to Reduce Child Support and Spousal Support.” This Court issued its opinion regarding the final divorce decree on April 30, 2013, affirming in part, reversing in part, and remanding. Milam v. Milam, No. 0837-12-4, 2013 WL 1804185, 2013 Va.App. LEXIS 134 (Va.Ct.App. Apr. 30, 2013). After oral argument by the parties, the circuit court issued an order upon remand on July 25, 2014. In that order, the court found that the shared custody guidelines were not presumptive under the circumstances of this case because mother‘s income was less than
The hearing on father‘s motion to reduce child support was held on September 24, 2014. The court issued a letter opinion dated November 17, 2014, which was incorporated into the final order dated December 23, 2014.1 In that letter opinion, the court calculated father‘s income to be $11,199 per month. The court rejected father‘s argument that his 2012 income tax return provided the best estimate of his current income. The court concluded it need not rely on the 2012 tax return because it “heard no evidence in support of [father‘s] inability to file his 2013 tax return.” In part, the court reasoned that father‘s argument was rebutted by father‘s “own witness‘s testimony.” Specifically, the court noted that father‘s “Certified Public Accountant testified that he only needed [father‘s] bank statements in order to file [father‘s] 2013 tax return.” The record indicates, however, that the witness was called by mother, not father. Further, contrary to the court‘s description, the record indicates that the witness was female, rather than male, and described herself as a tax preparer rather than a Certified Public Accountant. Nonetheless, the court concluded from the witness’ testimony that “there was no reason why [father‘s] 2013 tax return could not be filed.” As a result, it rejected the argument that the court should rely on the 2012 tax return, which was the most recently filed one.
Instead, the court agreed with mother that the “most accurate estimation of [father‘s] income is reflected by his earnings
Turning to mother‘s income, the parties agreed that mother‘s income from employment alone was about $745 per month. The court found no merit in father‘s argument that spousal support owed by father should be included in mother‘s income. The court reasoned that father “ha[d] not paid [spousal support]” and had arrearages in the amount of $23,559.94. The court therefore concluded that father‘s support obligations should not be included in determining mother‘s actual income. Further, the court rejected father‘s reasoning that mother must earn at least $3000 per month because she testified that she tries to tithe to her church 10% of her income, or $300. The court found “there [was] no evidence to support [father‘s] argument that [mother] actually tithes $300.00 per month.”
Having found mother‘s income to be $745 per month, the court also found that mother‘s income was below 150% of the federal poverty level for purposes of
5. Upon receipt of a sworn affidavit that any payments due are late or unpaid, or that Defendant failed to perform as set forth in these conditions, a [capias] shall issue and Defendant shall be remanded to the custody of the Sheriff of Rappahannock County, Virginia for service of his twelve month jail sentence.
Father appealed the final order to this Court.
II. ANALYSIS
“We begin our analysis by recognizing the well-established principle that all trial court rulings come to an appellate court with a presumption of correctness. Thus, we will not invalidate a court‘s decree unless the only reasonable interpretation thereof requires invalidation.” Stiles v. Stiles, 48 Va.App. 449, 453, 632 S.E.2d 607, 609 (2006) (quoting Riggins v. O‘Brien, 263 Va. 444, 448, 559 S.E.2d 673, 675-76 (2002)). “The court‘s paramount concern when awarding child support is the best interest of the children.” Id. at 456, 632 S.E.2d at 611. “The court must consider the basic needs of the child, the parent‘s ability to pay, and to the extent that the parent is able to provide more than the basic necessities of life, the degree to which the child should reasonably share in his or her parents’ prosperity.” Conway v. Conway, 10 Va.App. 653, 658, 395 S.E.2d 464, 466-67 (1990).
A. AN INCREASE IN CHILD SUPPORT MAY ARISE FROM APPLICATION OF THE STATUTORY GUIDELINES EVEN IF A PARENT REQUESTS A REDUCTION ONLY
Father argues that the circuit court erred as a matter of law by increasing his child support obligation even though
“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.” Oley v. Branch, 63 Va.App. 681, 699, 762 S.E.2d 790, 799 (2014).
“An abuse of discretion . . . can occur in three principal ways: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.”
Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) (alteration in original) (quoting Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir.1984)). Thus, unless 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. See Wright v. Wright, 61 Va.App. 432, 454, 737 S.E.2d 519, 529-30 (2013) (discussing the standard of review in an equitable distribution case).
Regardless of father‘s choice of title for his motion, he requested a modification of child support pursuant to
The court may, from time to time after decreeing as provided in § 20-107.2, on petition of either of the parents,
or on its own motion . . . revise and alter such decree concerning the care, custody, and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require.
Evaluation of a motion to modify child support requires a multi-step analysis by the court. First, the movant bears the burden of proving a material change of circumstance. Crabtree v. Crabtree, 17 Va.App. 81, 88, 435 S.E.2d 883, 888 (1993). “Once a child support award has been entered, only a showing of a material change in circumstances will justify modification of the support award.” Id. The court is then required to determine the presumptive child support amount by using the statutory guidelines. Id. (“The statutory guidelines must be applied not only in the initial child support hearing, but also in hearings to modify support.“); see Hiner v. Hadeed, 15 Va.App. 575, 579, 425 S.E.2d 811, 813 (1993) (“In a proceeding to increase, decrease, or terminate child support under
Here, after a material change in circumstances was established,2 the court was required to determine the presumptive support amount by following the statutory guidelines. This the court did. Although father is now required to support three minor children, rather than four, his increase in income resulted in a higher presumptive amount. Father argues that because he titled his motion for modification a “Motion to Reduce Child Support” the court was precluded from increas-
We disagree. Father relies on our decisions in Fadness and in Boyd v. Boyd, 2 Va.App. 16, 340 S.E.2d 578 (1986), for the proposition that an increase in child support cannot be granted unless the non-moving parent specifically requests the increase. However, both these cases dealt with spousal support. “Spousal support and child support represent two distinct remedies directed at two very different interests: the spouse‘s needs and the child‘s needs.” Robbins v. Robbins, 48 Va.App. 466, 484, 632 S.E.2d 615, 624 (2006). This can be seen, for example, in
“Statutory child support guidelines were designed ‘to assure that both the child‘s needs and the parent‘s ability to pay are considered in determining the amount of support awards.‘” Oley, 63 Va.App. at 689, 762 S.E.2d at 793-94 (quoting Richardson v. Richardson, 12 Va.App. 18, 20, 401 S.E.2d 894, 895 (1991)). Child support awards are thus crafted for the child‘s benefit, not for the purpose of granting a parent relief. See Stiles, 48 Va.App. at 456, 632 S.E.2d at 611 (“The court‘s paramount concern when awarding child support is the best interest of the children.“). To this end, a court has authority to “make such further decree[s] as it shall deem expedient concerning support of the minor children. . . .”
Therefore, we hold that when a motion for modification of child support is before the court, the court may increase or decrease the amount of child support pursuant to the statutory guidelines, regardless of the wording of the motion seeking modification and regardless of whether the other parent specifically requests such relief.
Here, the circuit court had before it a motion to modify child support. The court followed the statutory process of determining the presumptive amount and awarded that amount. Finding that the circuit court did not abuse its discretion when considering and applying the statutory process for modification of child support, we will not disturb its decision.
B. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN APPLYING THE FEDERAL POVERTY GUIDELINES
Father argues that the circuit court erred as a matter of law by including one of the parties’ adult children as part of mother‘s household for purposes of determining whether
“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.” Oley, 63 Va.App. at 699-700, 762 S.E.2d at 799.
Section 20-108.2(G)(3)(d) states:
The federal guidelines establish the poverty level based on the number of “persons in family/household.” Annual Update of the HHS Poverty Guidelines, 79 Fed. Reg. 3953 (Jan. 22, 2014). The guidelines, however, “[do] not provide definitions of such terms as ‘income’ or ‘family’ because there is considerable variation in defining these terms among the different programs that use the guidelines.” Id. at 3594. The federal guidelines explain that questions such as
“Should a particular person be counted as a member of the family/household?” [is] actually [a] question[] about how a specific program applies the poverty guidelines. All such questions about how a specific program applies the guidelines should be directed to the entity that administers or funds the program, since that entity has the responsibility for defining such terms as “income” or “family,” to the extent that these terms are not already defined for the program in legislation or regulations.”
Id.4
For the purposes of
Here, the circuit court reasoned that the plain text of the federal poverty guidelines bases the poverty level on the number of persons in a household regardless of whether the person is classified a dependent of the party. Neither
Nevertheless, father argues that only those children he is obligated to support pursuant to
Finding that mother‘s income is below 150% of the poverty level for her household size is not the end of the inquiry.
Here, the circuit court expressly found that application of the shared custody guidelines in this case would seriously impair mother‘s ability to maintain minimal adequate housing
C. OMISSION OF SPOUSAL SUPPORT FROM MOTHER‘S INCOME WAS HARMLESS ERROR
“The issue of [a party‘s] income is a question of fact, and ‘the judgment of the [circuit] court on questions of fact is entitled to great weight and will not be disturbed unless it is plainly wrong or without evidence to support it.‘” Patel v. Patel, 61 Va.App. 714, 727, 740 S.E.2d 35, 42 (2013) (second alteration in original) (quoting Smith v. Board of Supervisors, 201 Va. 87, 91, 109 S.E.2d 501, 505 (1959)).
“For purposes of calculating child support,
Father argues the circuit court erred “in determining [mother‘s] income, because the [c]ourt completely omitted from its calculation [mother‘s] income from the spousal support payments she receives from [father].” In its letter opinion, the court found mother‘s monthly income to be $745 and rejected father‘s argument that spousal support be included. The court found that father “ha[d] not been paying his support obligations.” The court noted arrearages in the amount of $23,559.94. Although father indisputably had arrearages at the time of the hearing, the uncontested evidence shows that father made some spousal support payments to mother during the twelve months preceding the hearing. To the extent that the court failed to include these payments in mother‘s gross income, it erred.
When it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached, no judgment shall be arrested or reversed . . . (2) For any other defect, imperfection, or omission in the record, or for any error committed on the trial.
This statute ““puts a limitation on the powers of this court to reverse the judgment of the trial court—a limitation which we must consider on every application for an appeal and on the hearing of every case submitted to our judgment.“” Kirby v. Commonwealth, 50 Va.App. 691, 699, 653 S.E.2d 600, 604 (2007) (quoting Walker v. Commonwealth, 144 Va. 648, 652, 131 S.E. 230, 231 (1926)).
Here, the court found in its letter opinion that mother‘s monthly income was $745 and father‘s monthly income was $11,199, with no adjustment for spousal support. Nevertheless, the court used as a basis for its award the Child Support Guideline Worksheet included in the joint appendix at page 546. This worksheet adds to mother‘s income, and deducts from father‘s income, the full spousal support obligation of $2830 per month. Based on this worksheet, the presumptive amount of father‘s child support obligation was $1380. This is the amount the court awarded. Therefore, any error in the court‘s statements was harmless because the court actually calculated the presumptive child support amount by adjusting for the spousal support obligation, just as father argued the court should do.5
Father assigns error to the wording of the court‘s order setting certain conditions as part of a suspended sentence. The circuit court found father guilty of contempt pursuant to
5. Upon receipt of a sworn affidavit that any payments due are late or unpaid, or that Defendant failed to perform as set forth in these conditions, a cap[ias] shall issue and Defendant shall be remanded to the custody of the Sheriff of Rappahannock County, Virginia for service of his twelve month jail sentence.
Father argues that if mother submits an affidavit, the procedure provided by the order “would deprive father of his liberty without notice, or a hearing, or the opportunity to be represented by counsel.”
Where a “court has suspended the execution or imposition of sentence, the court may revoke the suspension of sentence for any cause the court deems sufficient that occurred at any time within the probation.”
This minimal safeguard of a hearing is clearly inferred from
Here, the fifth condition of suspended sentence stated that upon receipt of a sworn affidavit father would be arrested and
E. THE COURT DID NOT ABUSE ITS DISCRETION BY USING ACTUAL INCOME FIGURES AS A BASIS FOR DETERMINING MOTHER‘S INCOME
Father argues the court erred by “ignoring [mother]‘s admission that she tithes 10% of her income and the clear inference from her testimony that [mother‘s] annual income is $36,000.”
The issue of a party‘s income is a question of fact that we will not disturb unless it is plainly wrong or without evidence to support it. Patel, 61 Va.App. at 727, 740 S.E.2d at 42. “The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.” McKee v. McKee, 52 Va.App. 482, 492, 664 S.E.2d 505, 510 (2008) (en banc) (quoting Sandoval v. Commonwealth, 20 Va.App. 133, 138, 455 S.E.2d 730, 732 (1995)). Thus, “[o]n appeal, we will not reverse findings of fact ‘unless plainly wrong.‘” Budnick v. Budnick, 42 Va.App. 823, 834, 595 S.E.2d 50, 55 (2004).
We find father‘s assertion that the circuit court “mini-mize[ed],” “ignored” or “overlooked” the facts on this issue to
F. THE COURT‘S CALCULATION OF FATHER‘S INCOME WAS NOT PLAINLY WRONG OR WITHOUT EVIDENCE TO SUPPORT IT
Father argues that the court erred “by adding all of [father‘s] income from [c]ourt-appointed counsel work to his deposits in determining his income[.]” The calculation of father‘s income is a question of fact, and we will not disturb the circuit court‘s judgment unless plainly wrong or without evidence to support it. Patel, 61 Va.App. at 727, 740 S.E.2d at 42.
During the hearing on father‘s motion to reduce child support, father introduced a list purporting to show voucher amounts paid to him by the Commonwealth over a period of several years. Father argued that the list included both garnished amounts and amounts that were already counted as income by way of deposits into his operating account. Al-
Simply put, father disagrees with the court‘s factual finding regarding his income in light of the court‘s interpretation of the documentary evidence and the weight given testimony presented at trial. “[W]hen a court hears evidence at an ore tenus hearing, its decision is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Goodhand v. Kildoo, 37 Va.App. 591, 599, 560 S.E.2d 463, 466 (2002). The circuit court had before it all of father‘s evidence and heard father testify. The court was not required to credit father‘s evidence or testimony. Father‘s income is a finding of fact that we will not disturb unless father points us to legal authority and argument demonstrating that the circuit court was plainly wrong. Patel, 61 Va.App. at 727, 740 S.E.2d at 42. Father has failed to do so. We will therefore leave the court‘s factual finding undisturbed.
G. ASSIGNMENT OF ERROR DEFAULTED BY 5A:18
Rule 5A:18 states:
No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to preserve the issue for appellate review.
“The main purpose of requiring timely specific objections is to afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals. In addition, a specific, contemporaneous objection gives the opposing party the opportunity to
Father argues that the court erred in “failing to determine [father‘s] income at the time of the filing of his Motion to Reduce Child Support, June 29, 2012, instead making a finding of [father‘s] 2014 income, a time not in existence when [father] filed his Motion to Reduce Child Support.” He did not make this argument to the circuit court. Rather, father argued to the court that his 2012 tax return was the best estimation of his current (2014) income because it was the most recently filed return. Because the circuit court did not have an opportunity to rule on the argument that 2012 was a more appropriate year because it was the year in which the motion was filed, we will not address that assignment of error.7
H. ASSIGNMENTS DEFAULTED BY RULE 5A:20
“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.‘” Fadness, 52 Va.App. at 850, 667 S.E.2d at 865 (alteration in original) (quoting Jones v. Commonwealth, 51 Va.App. 730, 734, 660 S.E.2d 343, 345 (2008)). An appellate court “is not a depository in which the appellant may dump the burden of argument and research.” Id. “[S]trict compliance with the rules permits a reviewing court to ascertain the integrity of the parties’ assertions which is essential to an accurate determination of the issues raised on appeal.” Id. (quoting Jones, 51 Va.App. at 734-35, 660 S.E.2d at 345). Accordingly, when a
Father argues that the circuit court erred by concluding “that [father‘s] average monthly income for the months of August through December 2014 would be the same as his average monthly income for January through July 2014.” Father cites Srinivasan v. Srinivasan, 10 Va.App. 728, 735, 396 S.E.2d 675, 679 (1990), for the principle that “current circumstances and what the circumstances will be ‘within the immediate or reasonably foreseeable future’ must be the basis of support awards.” But father cites no principle of law, legal argument, or authority relating to his contention that the circuit court used an incorrect method of determining his current annual income when it calculated an average. Here, father‘s failure to provide “[t]he principles of law, the argument, and the authorities,” for this assignment of error is significant, and we deem the argument waived. See Rule 5A:20.
Father additionally argues that the circuit court committed plain error in finding that [father‘s] own Certified Public Account (“CPA“), a man‘s testimony[,] rebutted [father‘s] testimony regarding his 2012 income, because the evidence was clear that only [father‘s] bookkeeper—who is neither a CPA, nor a man—testified, and the record shows that [mother], not [father] called the bookkeeper as a witness.
In its letter opinion, the court refers to the witness as “he,” as a Certified Public Accountant, and as father‘s witness. Each of these characterizations conflicts with the record. Father does not challenge the testimony of the witness, only the faulty description of the witness by the court. Father fails to provide “[t]he principles of law, the argument, and the authorities” explaining why the court‘s faulty description of the witness makes the court‘s finding regarding father‘s income incorrect. He failed to provide meritorious argument that the errors were more than harmless misspeak. See
III. CONCLUSION
We conclude that the circuit court erred in ordering that husband‘s suspended jail sentence for contempt would be automatically revoked if husband failed to make future payments, without providing husband notice and an opportunity to be heard. Accordingly, we reverse and vacate condition number 5 of the final order. We affirm the circuit court‘s factual findings of mother‘s income and father‘s income. Based on those findings, we hold that the court did not err in determining father‘s child support obligations. We therefore affirm the remainder of the circuit court‘s ruling.
Affirmed in part, reversed and vacated in part.