Opinion
Record No. 2426-93-2
Decided: November 29, 1994
FROM THE CIRCUIT COURT OF HENRICO COUNTY, George F. Tidey, Judge
Affirmed in part, reversed in part, and remanded.
(S. Keith Barker, on brief), for appellant. Appellant submitting on brief.
No brief or argument for appellee.
Present: Chief Judge Moon, Judge Coleman and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Nancy J. Watts (mother) appeals the decision of the circuit court determining the amount of child support owed to her by Joseph D. Watts, Jr., (father) and deciding other issues. We reverse the trial court's determination of child support and remand on that issue. We conclude that the other substative issues are without merit, and we affirm the decision of the trial court on those issues.
Mother raises the following issues on appeal: (1) whether the trial court erred in determining the amount of father's child support payments; (2) whether the trial court erred in refusing to reserve an award of spousal support in the final decree; (3) whether the trial court erred in refusing appellant's motion for reconsideration; and (4) whether the matter should be remanded for an award of attorney's fees on appeal.
Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.
Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988). Moreover, "[t]he burden is on the party who alleges reversible error to show by the record that reversal is the remedy to which he is entitled." Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991).
I. Calculation of Child Support
Mother contends the trial court erred in determining the amount of child support. We agree. The trial court computed the basic child support amount pursuant to the guidelines contained in Code Sec. 20-108.2. The court included within the total child support expenses the amount of work-related child care expenses. The court also correctly computed the parents' relative share of expenses based upon their respective incomes.
However, the court erroneously failed to include medical expenses within the total child support expenses. Father testified he paid $162 a month for the children's health insurance. While the court appropriately credited father with a deduction for medical expenses actually paid by him, the deduction was appropriate only after the expenses had first been included within the total child support expenses. Thus, as calculated by the trial court, the total amount of child support expense paid by father did not include medical expenses, but father nonetheless was credited with his percentage of those payments. This method of arriving at father's child support payment had the effect of reducing father's share of the general child support and child care expenses.
The proper method of calculating the child support payments, while crediting father with his actual payment of medical expenses, required the court to determine the child support payment pursuant to the guidelines contained in Code Sec. 20-108.2 based upon the parties' income. Having reached that figure, additional allowable costs for child support and health care expenses should have been added. The total amount of child support expenses thus calculated then should have been divided into the parties' respective shares, based upon their income. Only at that point was it appropriate to credit father with the amount of health care expenses he pays.
As the trial court erred in its calculation of father's child support obligation, we remand this matter to the trial court for entry of a corrected order.
II. Reservation of Spousal Support
Mother argues the trial court erred in failing to reserve the matter of spousal support in its final decree. However, mother assured the trial court that "there would be no need for [mother] to pursue an appeal on spousal support" if the court entered an order equally dividing the parties' real estate proceeds, without any other setoff. The court ordered that distribution.
Mother may not now be heard to challenge the court's order.
A party cannot either in the course of litigation or in dealings in pais, occupy inconsistent positions. Upon that rule election is founded; "a man shall not be allowed . . . to approbate and reprobate" and where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts . . . .
Rohanna v. Vazzana, 196 Va. 549, 553, 84 S.E.2d 440, 442 (1954) (citations omitted). "No litigant . . . will be permitted to approbate and reprobate-to invite error . . . and then to take advantage of the situation created by his own wrong." Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988), cert. denied, 490 U.S. 1028 (1989).
Mother drafted and signed an order seeking no reservation of spousal support. Mother told the trial court that she would waive spousal support if the trial court entered the equitable distribution order. The court did so. This Court will not permit mother to invite error for her own advantage. Accordingly, we affirm the trial court's decision.
III. Failure to Grant Motion for Reconsideration
Mother alleges error in the trial court's refusal to grant her motion for reconsideration. As we have reversed the trial court's calculation of child support and rejected mother's argument as to the reservation of spousal support, we need not address this issue on appeal.
IV. Attorney's Fees on Appeal
An award of attorney's fees is a matter submitted to the sound discretion of the trial court. Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award of counsel fees is reasonableness under all the circumstances. McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). Upon remand, the trial court may determine whether an award of attorney's fees incurred in this appeal is justified.
Accordingly, the decision of the circuit court is affirmed in part, reversed in part, and remanded.
Affirmed in part, reversed in part, and remanded.