Michael A. OLEY v. Lisa S. BRANCH.
Record No. 1857-13-2.
Court of Appeals of Virginia, Richmond.
Sept. 9, 2014.
762 S.E.2d 790
No brief or argument for appellee.
Present: HUMPHREYS, ALSTON and DECKER, JJ.
HUMPHREYS, Judge.
Michael A. Oley (“Oley,” “father,” or “plaintiff“) appeals a child support order entered
Each of Oley‘s arguments are addressed in turn below. For the reasons that follow, the judgment of the circuit court is affirmed in part, and reversed and remanded in part.
I. BACKGROUND
Pursuant to Oley‘s and Branch‘s custody agreement, Oley is the custodial parent of their three minor children—ages nine, eleven, and fourteen. Oley and Branch have a fourth child who turned eighteen several months before the circuit court‘s August 27, 2013 child support order that is the focus of this dispute. The issues before this Court relate solely to the circuit court‘s decisions regarding Branch‘s child support obligations, and therefore the facts below are relevant only to those disputes.
A. The Parties’ Gross Monthly Incomes and Child Support Obligations
Branch was unemployed and enrolled in school to become a dental assistant at the time of the child support hearing. The circuit court found that the evidence allowed it to impute income to Branch based on her most recent employment. It concluded that Branch was “capable of earning at least the rate of $8.50 an hour based on her [former] employment at Chick-fil-A,“—resulting in a monthly income of $1,462. Consequently, the circuit court fixed Branch‘s gross monthly income at $1,462.
Oley argued that Branch had other sources of “income” that the circuit court was required to consider when calculating her gross income pursuant to the statutory guidelines. Branch receives annuity payments stemming from a personal injury settlement from a 1987 car accident she was in when she was sixteen years old. She was awarded lifetime monthly payments of $1,000 as well as four $100,000 lump sum payments that were made in 1997, 2002, 2007, and 2012. The circuit court found that Branch‘s personal injury settlement annuity was excluded from being considered part of her gross income. Relying on this Court‘s decision in Whitaker v. Colbert, 18 Va.App. 202, 442 S.E.2d 429 (1994), the circuit court reasoned that because the settlement itself was not apportioned as to loss of income or lost wages, an annuity stemming from that settlement was not intended to be included in the statutory definition of gross income.
Branch also received a $5,500 Federal Pell Grant (“Pell Grant“) to go back to school. Oley argued that the circuit court should include her Pell Grant as well as $1,200 in “free housing“—the cost of the rent she paid before moving in with her mother—because it is a “gift” she receives by living with her mother free-of-charge. Without stating any reasons for doing so, the circuit court did not include either item in its computation of Branch‘s gross income.
With respect to Oley‘s monthly income, Oley owns a startup Internet business that he runs from his home. Prior to that, he owned a roofing and construction company that he “shuttered” in 2009 due to changes in the economic climate. The circuit court noted that Oley‘s bank account appeared to have large sums of money and he had recently purchased a $60,000 recreational vehicle using sums from those accounts. Oley attributed the money in his accounts to his past earnings and the proceeds from the sale of his home. The circuit court noted that it found Oley‘s “testimony regarding his income to be very suspicious.” However, despite its
The circuit court concluded that pursuant to the statutory schedule the presumptive support Branch should pay Oley each month for their three minor children was $1,711.20.1 However, the circuit court found that a deviation from the guidelines was warranted because “applying the guidelines amounts would work at a substantial inequity in this case.” Because Branch was only capable of earning $1,462 per month, the guideline amount of $1,711.20 would require “her to pay something that she doesn‘t have.” In considering a deviation from the guidelines, the circuit court additionally
noted that “the evidence establishes that the father appears to have plenty of money to meet the needs of his children.”
Based on its finding that a deviation from the guidelines was appropriate, the circuit court ordered Branch to pay Oley $453.75 per month from May 1, 2011 until March 1, 2013 in child support for their four children—ending the date of their fourth child‘s eighteenth birthday. After March 1, 2013, the circuit court ordered Branch to pay Oley $400 a month in child support for their remaining three minor children.
B. Childcare Expenses
Oley runs his startup Internet company mainly from his home, but occasionally he works from a “virtual office” in Innsbrook. The three minor children attend school every weekday from 8:15 a.m. until 3:10 p.m. Oley testified that he requires childcare from 8:30 a.m. to 5:00 p.m. His current nanny works those hours, and sometimes longer, for $400 per week. According to Oley, the nanny‘s responsibilities included “cooking, cleaning, laundry, [and] a multifaceted amount of things.” The children are home only approximately two hours out of the nanny‘s 8:30 a.m. to 5:00 p.m. workday.
The circuit court found that the evidence demonstrated that the nanny‘s presence was more akin to “taking a role of a mother” rather than providing childcare that “simply allow[s] [Oley] to work.” Noting that it found Oley‘s testimony “not particularly credible,” the circuit court concluded that the evidence did not demonstrate that the nanny‘s responsibilities had “anything to do with work-related day care.” Therefore, the circuit court denied Oley‘s request for childcare support because there was “insufficient evidence to find that [he] has legitimate work related child care expenses to be considered in accordance with the guidelines.” (Emphasis added).
C. Private School Tuition
Oley‘s and Branch‘s three minor children currently attend a private school named Salem Christian School. Their combined yearly tuitions total $15,000. The children have not always attended Salem Christian—they were home schooled
for “a couple of years” and attended public school for “a couple of years.” The children re-entered Salem Christian after a period of home schooling. The parties’ custody agreement was only that the children would not be home schooled; however, the agreement did not specifically mandate their attendance at Salem Christian. Branch does not object to the children attending Salem Christian.
The circuit court denied Oley‘s motion to require Branch to pay for the children‘s private school tuition because it found that Oley‘s evidence failed to establish that “there is a need for the children to attend private school,” “that the funds and needs otherwise cannot be met in public school,” and “that the mother has the ability to pay for it.”
II. ANALYSIS
A. “Gross Income” under Code § 20-108.2(C)
Statutory child support guidelines were designed “to assure that both the child‘s needs and the parent‘s ability to pay
Thus, “the starting point for a trial court in determining the monthly child support obligation of a party is the amount as computed by the schedule found in
of the parties and the number of children involved.” Id.
all income from all sources, and shall include, but not be limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards.
(Emphasis added). Subsection (C) then enumerates specific sources of income that are categorically excluded from being considered part of a party‘s “gross income.” See, e.g.,
Oley asserts in his first, second, and third assignments of error that the circuit court erred as a matter of law by excluding certain sources of funds in its computation of Branch‘s “gross income.” Specifically, he argues the following items are “income” as defined by
i. Personal Injury Settlement Annuity
Oley first argues that the circuit court erred by failing to include Branch‘s annuity payments, originating from a 1987 personal injury settlement, in the computation of her “gross income.” We disagree.
This Court has previously considered whether personal injury settlements are “income” within the scope of
Oley argues that because Branch receives her personal injury settlement in the form of an annuity, Branch‘s payments are “income” under subsection (C). The definition of “gross income” contained in
Dispersing Branch‘s personal injury settlement in the form of an annuity does not change the underlying character of the source—a personal injury settlement. Consequently, the mere fact that Branch receives her personal injury settle-
ment in the form of an annuity does not render our holding in Whitaker inapplicable. This Court‘s holding in Whitaker does not stand for the proposition that personal injury settlements are categorically excluded from being considered income under subsection (C). Rather Whitaker explains under what circumstances a personal injury settlement may or may not be considered income. In order for a personal injury settlement to be considered income pursuant to
In this case, like in Whitaker, Branch‘s settlement is not apportioned as to the nature of the damages that involve the settlement. There is nothing in the record that indicates that the settlement involved compensation for lost wages or lost income—particularly in light of the fact that Branch was a minor at the time of the accident. The circuit court concluded that Branch‘s settlement payments, even if paid out over many years in the form of an annuity, were capital recoupments intended to make “a badly injured child whole.” The record supports the circuit court‘s determination that the evidence did not prove that the annuity payments generated any income to Branch. Therefore, the circuit court did not err in excluding Branch‘s personal injury payments when computing her gross income pursuant to
ii. Free Housing
Oley next argues that the circuit court erred by failing to include the monetary value of Branch‘s “free housing” when it calculated her gross income. He asserts that the “free housing” is a “gift” from her mother, and is therefore “income” as defined by
Oley relies on Carmon v. Department of Social Services, 21 Va.App. 749, 467 S.E.2d 815 (1996), to support his proposition that free room and board must constitute nonmonetary income. However, Oley fails to read the holding in Carmon within its factual context. In Carmon, this Court found that
free room and board were considered “income” under
Oley argues that Branch‘s “free housing” is a gift from her mother. Although “the statute defines gifts as income,” Howe, 30 Va.App. at 214, 516 S.E.2d at 244, allowing someone to live with you is not a “gift.” “A gift is property that is voluntarily transferred to another without compensation.” Goldhamer v. Cohen, 31 Va.App. 728, 736, 525 S.E.2d 599, 603 (2000) (citing Black‘s Law Dictionary 696 (7th ed.1999)). Here there is no property being transferred. Moreover, there is nothing in the record to establish the value of Branch‘s room at her mother‘s house. Oley asserts that the value of
iii. Pell Grant
Oley next argues that the circuit court erred by failing to include Branch‘s $5,500 Pell Grant when it calculated her gross income. Whether federal educational grants are “in-
come” for the purposes of calculating child support is a matter of first impression in Virginia.2
The Pell Grant Program provides financial assistance to students attending eligible intuitions of higher education to help subsidize their post-secondary education costs.3 Trustees of the Cal. State Univ. v. Riley, 74 F.3d 960, 962 (9th Cir. 1996); see also
vices. See, e.g.,
“Under
income,” non-enumerated programs, such as federal educational grants, are therefore subject to inclusion.
Therefore, because
B. Childcare Expenses
Oley next argues that the circuit court erred as a matter of law by failing to award him childcare expenses.
Additionally, the custodial parent testified that she was paying the nanny a higher hourly rate than she was earning herself. Id. In affirming the trial court, this Court noted that “[s]imply because a statute requires inclusion of certain expenses in a child support award, it does not follow that the party seeking the inclusion of those expenses does not have the burden to produce sufficient credible evidence showing the appropriate amount of those expenses.” Id. at 171-72, 707 S.E.2d at 478.
In this case, the circuit court found that Oley failed to produce credible evidence that the childcare costs he was seeking were employment related. The nanny worked from 8:30 a.m. to 5:00 p.m. cooking, cleaning, and doing laundry while the children were in school 8:15 a.m. to 3:00 p.m. and Oley was working from home.
C. Private School Tuition
Oley next argues that the circuit court abused its discretion in declining to deviate from the statutory guidelines by including the children‘s private school tuition as part of Branch‘s child support obligation.
“Implicit in the statutory scheme is that educational expenses are included in the presumptive amount of child support as calculated under the Code.” Smith v. Smith, 18 Va.App. 427, 435, 444 S.E.2d 269, 275 (1994). However, as explained supra, it is within the circuit court‘s discretion to deviate from the presumptive support guidelines based on the factors found in
support, and the best interests of the child.
In determining whether there is a demonstrated need for the child to attend private school, “the trial court must consider ‘factors such as the availability of satisfactory public schools, the child‘s attendance at private school prior to the separation and divorce, the child‘s special emotional or physical needs, religious training, and family tradition.‘” Joynes v. Payne, 36 Va.App. 401, 424, 551 S.E.2d 10, 21 (2001) (quoting Solomond, 22 Va.App. at 391, 470 S.E.2d at 160).
In this case the circuit court declined to require Branch to pay the children‘s private school tuition because, after having “reviewed the Eisert case,” the court found that Oley‘s evidence failed to establish “there [wa]s a need for the children to attend private school and that the funds and needs otherwise cannot be met in public school.” Additionally, the circuit court found that Oley failed to establish “that the mother has the ability to pay for it.” In Eisert v. Eisert, No. 2990-06-4, 2008 WL 703719 (Va.Ct. App. Mar. 18, 2008), an unpublished decision of this Court, we found that because the children‘s need to attend private school was not in dispute the circuit court “was only required to explain in writing why it was ‘unjust or inappropriate’ for wife to share in the cost of tuition.” Id. at *7. This Court concluded that the circuit court did not abuse its discretion in ordering the husband to
pay the full cost of tuition because there was a large disparity in the parties’ disposable incomes. Id.
In this case, unlike Eisert, the parties did not affirmatively agree that private school attendance was necessary. Although Oley asserts that they agreed private school was in the best interest of the children, the record in the light most favorable to the party that prevailed in the court below reflects that Branch merely had no objection to the children attending Salem Christian School. The parties’ agreement was only that the children would not be home schooled. The circuit court did not find any evidence in the record that demonstrated a need to attend private school or that the children‘s needs could not adequately be met in public school. The children had attended public school in the past and had also been home schooled. There was no evidence as to any special emotional or physical needs of the children that would require them to attend private school. Nor was there any evidence supporting the children‘s need to attend private school due to religious training.
Irrespective of a demonstrated need for private school attendance, the circuit court also found that the evidence did not establish that Branch had the ability to pay for private
Here, the circuit court did not order Oley to pay for the children‘s tuition, but rather concluded that Branch did not have the ability to contribute to the cost nor was there a demonstrated need to order her to contribute. In other words, the circuit court merely concluded that Oley had failed to demonstrate a justification for deviating from the statutory guidelines by ordering Branch to pay the children‘s tuition.
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. Vissicchio v. Vissicchio, 27 Va.App. 240, 253,
498 S.E.2d 425, 432 (1998). In reaching its decision, the circuit court properly considered both the children‘s need for private school and Branch‘s ability to pay tuition. Under these circumstances, we find that there was sufficient evidence to support the circuit court‘s decision to decline to deviate from the child support guidelines to include the cost of the children‘s private school tuition, and therefore we find no abuse of discretion.
D. Child Support Arrearages
Oley next argues that the circuit court erred by failing to award him child support arrearages.
The circuit court found that there were no child support arrearages as of February 28, 2013. The juvenile and domestic relations district court had set Branch‘s monthly payments at $453.75 per month for the four children. The circuit court adopted that number for the four children but lowered her payments to $400 a month beginning March 1, 2013, the date of the fourth child‘s eighteenth birthday. Consequently the circuit court found that Branch had a credit for the payments made from March 1, 2013 to May 22, 2013 and there was an overage in the amount of $163.42 as of May 31, 2013. Because we are remanding this case to the circuit court to recalculate the presumptive guidelines before any deviations respecting the parties’ monthly child support, and because the circuit court‘s determination regarding alleged arrearages was based upon the monthly support obligations it ordered, we need not address this issue.
E. Due Process
Oley‘s final argument is that he did not receive a fair hearing because the circuit court was biased and he therefore should receive a new trial. Specifically he argues that the circuit court‘s deviations from the guidelines are “so far removed” from similar cases in Virginia, that there is a “strong appearance of bias.” Further, he asserts that while he “does not claim any knowledge of any pre-disposition by the [circuit] court,” its
verbal utterances of apparent favoritism of mother, bias against father, viewed in tandem with the Final Order, one would be hard pressed not to see the appearance that the [circuit] court simply used judicial authority and statutorily granted powers of deviation to correct a personally perceived injustice not supported by the evidence or the facts, nor grounded in law.
Oley cites no authority in support of his position that his due process rights were violated. “Rule 5A:20(e) provided, in part, that the opening brief shall include ‘[t]he principles of law, the argument, and the authorities relating to each question presented.‘” Atkins v. Commonwealth, 57 Va.App. 2, 20, 698 S.E.2d 249, 258 (2010). “The Supreme Court concluded that ‘when a party‘s ‘failure to strictly adhere to the requirements of Rule 5A:20(e)’ is significant, ‘the Court of Appeals may... treat a question presented as waived.‘” Id. (quoting Parks v. Parks, 52 Va.App. 663, 664, 666 S.E.2d 547, 548 (2008)). “If the parties believed that the circuit court erred, it was their duty to present that error to [the Court of Appeals] with legal authority to support their contention.” Fadness v. Fadness, 52 Va.App. 833, 851, 667 S.E.2d 857, 866 (2008). Because Oley provides no legal argument or authority in his brief to support his position that he was denied due process of law and did not receive a fair hearing, his argument is waived under Rule 5A:20(e).
Oley not credible. All of the circuit court‘s legal rulings demonstrated an appropriate application of reason and impartiality.
III. CONCLUSION
In sum, we reverse the circuit court‘s judgment excluding Branch‘s Pell Grant from the computation of her gross income under
Affirmed in part, reversed in part, and remanded.