Opinion
Record No. 1269-94-2
Decided: January 31, 1995
FROM THE CIRCUIT COURT OF HENRICO COUNTY, Buford M. Parsons, Jr., Judge
(Scott D. Landry, on brief), for appellant.
(Thomas O. Bondurant, Jr.; W. Todd Benson; Bondurant Benson, on brief), for appellee.
Present: Chief Judge Moon, Judge Bray and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Lorraine Shackleford (mother) appeals the decision of the circuit court awarding her $5,200 in unpaid child support from Earnest E. Franck, Jr. (father). Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27.
Mother raises two issues on appeal: (1) whether the trial court erred by ruling, as a matter of law, that mother bore the burden of proof to establish husband's noncompliance with the previous court order; and (2) whether the trial court erred by failing to award judgment interest on the accrued arrearage.
Burden of Proof
The circuit court ruled as a matter of law that mother was required to bear the burden of proof "in order to obtain the relief requested" on her motion for a Rule to Show Cause. The record on appeal contains neither a hearing transcript nor a written statement of facts. See Rule 5A:8. However, as mother's first argument is framed strictly as a question of law, the record before us is adequate for review of that question by this Court on appeal.
We find no error in the circuit court's determination that mother bore the burden of proving, by a preponderance of the evidence, a prima facie case that father failed to comply with the previously-ordered child support. "In a show cause hearing, the moving party need only prove that the offending party failed to comply with an order of the trial court. The offending party then has the burden of proving justification for his or her failure to comply." Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d 666, 669 (1991). See also Moffitt v. Commonwealth, 16 Va. App. 983, 986, 434 S.E.2d 684, 687 (1993).
Therefore, as the moving party, mother retained the burden to prove her prima facie case. Father was required to go forward with his proof to explain or contradict mother's evidence.
For reasons which are not clear in the absence of a transcript or a written statement of facts, the circuit court found mother's evidence sufficient only as to a portion of the time for which mother asserted father paid no child support. Thus, the trial court assessed evidence not before this Court on appeal as refuting mother's attestation in her affidavit.
Therefore, we affirm the decision of the trial court.
Interest on Arrearage
Mother also contends that the trial court erred by failing to award post-judgment interest on the support arrearage pursuant to Code Sec. 20-78.2. In interpreting this section, the Virginia Supreme Court stated that, as a general rule, " 'in the absence of factors making it inequitable, interest should be assessed on unpaid installments of alimony from the date they mature or become due until the date they are paid.' " Chattin v. Chattin, 245 Va. 302, 309, 427 S.E.2d 347, 351 (1993) (citation omitted). Thus, a determination whether to award interest on arrearage is partially fact-specific.
A transcript or written statement of facts is indispensable to the determination of mother's second issue. The circuit court's order demonstrates that, for reasons we do not know and based upon evidence not before us, mother was entitled only to a partial judgment on her request for unpaid child support, and no interest.
"The trial court's judgment is presumed to be correct, and 'the burden is on the appellant to present to us a sufficient record from which we can determine whether the lower court has erred.' " Twardy v. Twardy, 14 Va. App. 651, 658, 419 S.E.2d 848, 852 (1992) (reh'g en banc) (citation omitted). Mother has failed to present a sufficient record to allow a review of the alleged error on the part of the circuit court. Accordingly, we dismiss the appeal as to this issue.
Affirmed in part, dismissed in part.