Princiotto v. Gorrell, 42 Va. App. 253, 590 S.E.2d 626
(2004)
IN THE
COURT OF APPEALS OF
ARGUED
AT
PATRICIA
A. PRINCIOTTO (GORRELL)
v.
ROBERT
P. GORRELL, JR.
Record
No. 3386-02-2
Decided:
January 13, 2004
Present:
Judges Frank, McClanahan and Senior Judge Coleman
FROM THE
Affirmed,
in part, and remanded, in part. [Page 255]
COUNSEL
Murray J. Janus (Bremner, Janus, Cook &
Marcus, on brief), for appellant.
Donald K. Butler (Mark B. Michelsen;
ButlerCook, L.L.P., on brief), for appellee.
OPINION
COLEMAN,
J. — Patricia Ann Princiotto (mother) appeals the circuit court's decision
concerning child support payments. On appeal, mother presents the following
questions: [Page 256]
I.
Whether the trial court erred in failing to award the mother child support in
accord with the Virginia Child Support Guidelines for shared custody and for
deviating from the presumptive amount without written findings.
II.
Whether the trial court erred in allowing the father to pay the children's
expenses directly instead of paying child support to the mother.
III.
Whether the trial court erred in not awarding mother her attorney's fees
[except for a $1,000 award for work to be done on a consent order], in light of
the disparities in their income[s].
We find
no error in the trial court's decisions regarding child support payments, and
affirm on Questions I and II. However, we remand for the trial court to address
the attorney’s fees issue presented in Question III.
Background
Mother and Robert Pinkney Gorrell, Jr.
(father) married in 1977. They have four minor children. The parties separated
in 1999 and entered into a separation agreement. The agreement provided for
division of their property, custody of the children, and spousal support. Under
the agreement, father paid mother spousal support through the end of 2001. The
agreement also stated that father would pay no child support until January 1,
2002, when mother's spousal support payments ended, “at which time either party
may ask the Court to determine child support if they cannot agree.” The parties
“agree[d] that the child support arrangements provided for in this agreement
are fair and equitable and not otherwise subject to modification until January
1, 2002.” As part of the agreement, father would be responsible for the
children's expenses for clothing, sports, horse boarding, summer camps, the
majority of Christmas presents, extra-curricular activities, private school
costs not paid for by other parties, tutoring, medical and hospitalization
insurance, and extraordinary medical costs. [Page 257]
On March 14, 2000, the trial court entered
a final decree of divorce in which it “affirmed, ratified and incorporated” the
agreement. One year later, the trial court entered a consent order. That order
reflected that the parties agreed to joint legal and shared physical custody of
the children.
On January 1, 2002, father stopped making
spousal support payments as provided by the terms of the agreement. Thereafter,
the parties could not agree on the amount of child support; however, father
continued to pay the children's various expenses as required by the terms of
the agreement. In May 2002, mother moved for an award of child support under
the statutory guidelines, Code § 20-108.2. In deposition and hearing testimony,
father presented evidence that his father (the children's grandfather) was
paying the private school tuition for the children and that father's child care
expenses paid between July 11 and October 22, 2002, totaled $17,896.
At a hearing on mother's motion, the trial
court expressed concern about having child support payments paid directly to
mother. The court “had . . . considerable[,] un-refuted evidence of the
financial irresponsibility of [mother].” The court “want[ed] these children
provided for” but did not “want their funds improperly utilized . . . [a]nd
certainly the court would be remiss if [it] set up a system which would allow
it to be done again.” The facts showed that over the years the mother had
accumulated large debt that she had attempted to secrete from the father and
had been financially irresponsible. At the time of the hearing, mother had no
house payments; she paid for utilities and repairs.
By order dated November 22, 2002, the court
directed the parties to draft a consent order “as to what bills for the
children [father] is to pay directly and deduct that from the guideline support
with the balance to be paid directly to [mother].” The order required father to
pay mother's attorney $1,000 “to cover the additional work required” on the
consent order. [Page 258]
By order dated November 26, 2002, the court
found that father had a monthly gross income of $12,713 and that mother had a
monthly gross income of $1,462. Under the shared custody guidelines, the
presumptive amount of child support was $1,535.
The court then concluded that the evidence
warranted a deviation from the presumptive amount. The trial court found that
mother “ha[d] demonstrated financial irresponsibility and that direct payments
of child support to her would not benefit or be in the best interests of the
children.” In lieu of direct child support payments to mother, the court
ordered father to pay all expenses of the children as set forth in the
agreement of the parties.
Analysis
I.
“‘Decisions concerning child support rest
within the sound discretion of the trial court and will not be disturbed on
appeal unless plainly wrong or unsupported by the evidence.’” Rinaldi v.
Dumsick, 32 Va. App. 330, 334, 528 S.E.2d 134, 136 (2000) (quoting Barnhill v.
Brooks, 15 Va. App. 696, 699, 427 S.E.2d 209, 211 (1993)).
Mother's argument on the first question
presented is two-fold. She first argues that the trial court erred in departing
from the guidelines. She also contends the court erred in failing to make
written findings to support the deviation as required by Code § 20-108.1(B).
A.
Deviation from the Guidelines
Code §§ 20-108.1 and 20-108.2 govern the
method by which a trial court makes a child support determination and award.
The court's award “shall be rendered upon the evidence relevant to each
individual case. However, there shall be a rebuttable presumption . . . that
the amount of the award which would result from the application of the
guidelines set out in § 20-108.2 is the correct amount of child support to be
awarded.” Code § 20-108.1(B). [Page 259]
In order
to rebut the presumption, the court shall make written findings in the order,
which findings may be incorporated by reference, that the application of such
guidelines would be unjust or inappropriate in a particular case. The finding
that rebuts the guidelines shall state the amount of support that would have
been required under the guidelines, shall give a justification of why the order
varies from the guidelines, and shall be determined by relevant evidence
pertaining to the . . . factors affecting the obligation, the ability of each
party to provide child support, and the best interests of the child[.]
Id.;
Code § 20-108.2(A). The factors include, “court-ordered direct payments for the
benefit of the child.” Code § 20-108.1(B)(6). Where a parent seeks to modify a
child support award that had been agreed to and incorporated by the court in
its decree, the trial court must first calculate the presumptive amount of
support under the guidelines in Code § 20-108.2 and then must determine whether
deviation is required or warranted. See Watkinson v. Henley, 13 Va. App. 151,
158, 409 S.E.2d 470, 473-74 (1991). If the court determines that a deviation is
required or warranted, it must justify why its order varies from the guidelines
by applying relevant evidence affecting the obligation, the ability to pay and
the best interests of the children. Code § 20-108.2(A).
Here, the trial court calculated the
presumptive award amount under the child support guidelines. The calculation of
the presumptive award under the guidelines is not an issue on appeal. The court
then found from the unrefuted evidence that mother had a long history of
financial irresponsibility. That history had led the parties to enter into the
separation agreement whereby the father directly paid most of the children's
expenses in lieu of payments to mother. Under the agreement, father's direct
payments far exceeded the presumptive amount set forth by the guidelines.
The court justified its deviation from the
guidelines, in part, on a finding of financial irresponsibility on the part of
mother. Code § 20-108.1 allows such a finding and consideration under
subsection (B)(18) (“[s]uch other factor[] . . . as [is] necessary [Page 260]
to consider the equities for the parents and children”). Such a factor,
combined with the court's reference to and incorporation of the separation
agreement, satisfies the statutory requirement for deviation from the
guidelines. Code § 20-108.1(B)(16).
The trial court correctly followed the
statutory procedures for determining child support. It found that direct
payment of the child support to mother would not benefit or be in the best
interests of the children and that the parties' agreement, which was
incorporated into the final divorce decree, adequately provided for the
children's support. The trial court did not abuse its discretion in reaching
this conclusion.
B.
Written Findings
We find no merit in mother's argument that
the trial court failed to make written findings to justify the deviation as
required by Code § 20-108.1(B). To rebut the guidelines' presumption of correctness,
“a trial court must make written findings of enough detail and exactness to
allow for effective appellate review of the findings. Specifically, these
findings must identify the factors that justified deviation from the
guidelines, and explain why and to what extent the factors justified the
adjustment.” Richardson v. Richardson, 12 Va. App. 18, 22, 401 S.E.2d 894, 897
(1991).
The court's order addressed the incomes and
expenses of each party. It then found the presumptive child support guideline to
be $1,535 per month. The court order then included the following language:
The
Court further determines from the evidence that it will deviate from the child
support guideline amount for the reasons stated in Court, including the fact
that [mother] has demonstrated financial irresponsibility and that direct
payments of child support to her would not benefit or be in the best interests
of the children.
We find
such language complies with the statutory mandate to provide written findings
in the court order. The court identifies the factors that justified deviation
from the guidelines, [Page 261] and explains why and to what extent the factors
justified the adjustment. The mother's financial irresponsibility and the
father's willingness to continue to pay directly for the children's expenses in
accordance with his prior agreement, which payments had consistently far
exceeded the presumptive guideline amount, provided sufficient written
justification to deviate from the guidelines. It provides enough detail and
exactness for this Court upon review to find no error. See e.g., Wilson v.
Wilson, 18 Va. App. 193, 196, 442 S.E.2d 694, 696 (1994) (quoting Mayers v.
Mayers, 15 Va. App. 587, 591-92, 425 S.E.2d 808, 810-11 (1993)); Baumgartner v.
Moore, 14 Va. App. 696, 698, 419 S.E.2d 291, 293 (1992); Auman v. Auman, 21 Va.
App. 275, 277-78, 464 S.E.2d 154, 155-56 (1995).
II.
Mother next contends that the trial court
erred in allowing father to pay the children's expenses directly, rather than
making payments to her. Mother claims that the court's order has the effect of
awarding zero child support to a parent with shared custody. We have touched
upon the applicability of subparts (16) and (18) of Code § 20-108.1(B) to the
trial court's decision. In addition to those factors, Code § 20-108.1(B)(6)
allows a trial court to consider “court-ordered direct payments for the benefit
of the child . . . .” While trial courts should be aware that a direct payment
scheme for children's expenses may lead to administrative and accounting
problems between the parties, it is not our task to determine whether the
scheme is the wisest or easiest method of providing child support in a manner
that will be in the best interests of the children. This statute authorizes and
contemplates direct payments on behalf of the child if the court determines
that they are in the best interests of the child. Here, the court's order
provided, “it is ORDERED that in lieu of making direct child support payments
to [mother], that [father] shall be responsible for paying all of the expenses
of the children as set forth in the agreement of the parties.” [Page 262]
We are to determine whether the trial court
abused its discretion under the circumstances of this case in ordering direct
payments of the children's expenses as the method for paying child support. See
Rinaldi, 32 Va. App. at 334, 528 S.E.2d at 136. Given the applicability of the
provisions of Code § 20-108.1(B), we cannot say that the court abused its
discretion, under the facts of this case, in providing for direct payment of
the children's numerous and substantial expenses, in amounts that historically
exceeded the presumptive amount under the guidelines.
III.
Lastly, mother contends the trial court
abused its discretion in failing to award her attorney's fees except for the
$1,000 award made in conjunction with the drafting of the consent order. Before
proceeding to the merits of this issue, we address father's contention that
mother failed to preserve the issue as required by Rule 5A:18. We find that the
issue was preserved. By pleading filed on May 3, 2002, supplemented by the
introduction of an exhibit, mother asked the trial court for an award of
attorney's fees. Code § 8.01-384(A) governs. That statute reads, in pertinent
part: “No party, after having made an objection or motion known to the court,
shall be required to make such objection or motion again in order to preserve
his right to appeal, challenge, or move for reconsideration of, a ruling,
order, or action of the court.” Having made the motion for attorney's fees in
the pleading, mother was not required to reiterate it.
Upon consideration of the merits of this
issue, we conclude that the trial court failed to consider or rule on mother's
request. Mother requested $8,375 in fees. In the November 22, 2002 order, the
court awarded $1,000 specifically to cover the additional work required in the
drafting of the consent order. The final order, entered on November 26, 2002,
does not address mother's request for fees for legal services rendered other
than fees required for drafting the consent order. [Page 263]
We are mindful of the fact that “[a]n award
of attorney's fees is a matter submitted to the trial court's sound discretion
and is reviewable on appeal only for an abuse of discretion.” Graves v. Graves,
4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). However, in order to review a
decision to award or refrain from awarding fees, or the amount of any award,
the trial court must make a ruling for this Court to review. Here, the court
failed to rule on the request. Accordingly, we remand this matter to the trial
court to determine whether the attorney's fees requested by mother were
appropriate, and, if so, to enter an order awarding those fees.
Affirmed,
in part, and remanded, in part.
MCCLANAHAN,
J., concurring.
I join the majority opinion and concur with
its reasoning except in one detail. I do not think it appropriate for us to
discourage trial courts from exercising direct payment authority under Code §
20-108.1(B)(6) on the ground that it “may lead to administrative and accounting
problems between the parties.” Ante, at 261, 590 S.E.2d at 630. That admonition
comes perilously close to commenting on the “‘propriety, wisdom, necessity and
expedience’” of legislation. Mouberry v. Commonwealth, 39 Va. App. 576, 585,
575 S.E.2d 567, 571 (2003) (quoting Willis v. Mullett, 263 Va. 653, 658, 561
S.E.2d 705, 709 (2002)). See Harrison v. Day, 202 Va. 967, 973, 121 S.E.2d 615,
619 (1961) (“Courts have nothing to do with the wisdom of legislation.”); see
also Dale v. City of Newport News, 18 Va. App. 800, 802, 447 S.E.2d 878, 879
(1994).