Opinion
Record No. 0473-93-4
September 14, 1993
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY JAMES H. CHAMBLIN, JUDGE.
(Dennis R. Bolinski, pro se, on brief).
No brief for appellee.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Dennis R. Bolinski ("husband") appeals from the trial court's decree concerning child support, an award of attorney fees, and equitable distribution. Husband's opening brief raises five questions:
1) whether the trial judge demonstrated bias against husband and should have recused itself;
2) whether the trial judge erred in failing to grant husband a continuance to obtain counsel;
3) whether the trial judge erred in setting the amount of child support;
4) whether the trial judge erred in denying husband's request for equitable distribution of marital property; and
5) whether the trial judge erred in awarding attorney fees to Deanna J. Bolinski ("wife").
Upon reviewing the record and opening brief, we hold that the lack of a transcript prevents consideration of Issue (1), and that the other issues are without merit. Accordingly, we dismiss the appeal as to Issue (1) and affirm the decision of the trial court as to the remaining issues. Rule 5A:27.
I.
While husband alleges bias on the part of the trial judge, the record is insufficient to consider a challenge on that basis. "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) (quoting Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961)). In the absence of a record to review the trial proceedings or the judge's conduct of the trial for indications of bias, we cannot consider this question. See Anderson v. Commonwealth, 13 Va. App. 506, 413 S.E.2d 75 (1992); Turner v. Commonwealth, 2 Va. App. 96, 341 S.E.2d 400 (1986).
II.
Husband challenges the trial judge's failure to grant a continuance to allow him to obtain counsel. Husband's former counsel had withdrawn on June 26, 1992; however, husband had another counsel to assist him on a contempt proceeding on December 8, 1992. At that hearing, the trial judge told husband that the final hearing was scheduled for January 19, 1993, and would not be continued if husband failed to have counsel.
Husband contends that he contacted three attorneys who refused to represent him because of insufficient time to prepare. The trial court had given husband sufficient notice of the hearing and opportunity to obtain counsel and had informed husband that no continuance would be granted if counsel was not available.
Husband has the burden of demonstrating an abuse of discretion by the trial judge. The trial judge did not err in refusing a continuance when the husband had sufficient notice and an opportunity to obtain counsel and had been specifically informed that no continuance would be granted on this ground.
III.
The trial judge noted in his letter opinion that the presumptive amount of child support under Code § 20-108.2 that the unemployed husband would be required to pay was zero. The judge then noted, however, that the presumption was rebutted, as allowed under Code § 20-108.1, because the husband was voluntarily unemployed.
The judge found that husband had failed to diligently seek employment and had refused employment at $820 per month. The judge imputed $2,044 in monthly income to husband, which was the average between $820 per month he refused and $3,268 per month he was earning at the March 1992 pendente lite hearing. Based upon that amount of imputed income, the judge ordered husband to pay $435 in child support.
Deviations from the presumptive support obligation must be supported by written findings which state why the application of the guidelines in the particular case would be unjust or inappropriate. If the applicability of the factors is supported by the evidence and the trial judge has not otherwise abused his or her discretion, the deviation from the presumptive support obligation will be upheld on appeal.
Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991).
Sufficient evidence supported the trial judge's decision to deviate from the guidelines, and, therefore, the trial judge did not abuse his discretion in making the award.
IV.
Husband contends the trial judge erred in failing to equitably distribute the marital property. The judge held the evidence insufficient to grant husband's motion for equitable distribution. The husband failed to present evidence to enable the trial judge to distribute the marital property.
Virginia's statute "mandates" that trial courts determine the ownership and value of all real and personal property of the parties. But . . . the litigants have the burden to present evidence sufficient for the court to discharge its duty. When the party with the burden of proof on an issue fails for lack of proof, he cannot prevail on that question.
Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 550 (1987) (citation omitted). Accordingly, the trial judge did not err in his ruling.
V.
Husband contends the trial judge erred in awarding the wife $2,750 in attorney fees. Wife's attorney fees totaled over $9,000 at the time of the final hearing. In his letter opinion, the judge detailed the legal services for which husband was responsible, specifically those caused by the husband's actions, e. g., non-payment of support, contempt of court, and his "unreasonable and excessive use of the Court's time."
"An 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). "[T]he key to a proper award of counsel fees is the reasonableness under all of the circumstances."McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).
Although the husband was earning no income, he had resources available to pay over $5,600 to his attorneys. The trial judge determined that husband was voluntarily unemployed. Under this circumstance, the trial judge's award of attorney's fees requiring husband to pay for legal expenses unnecessarily caused by husband was not an abuse of discretion.
Accordingly, we dismiss husband's allegation of bias by the trial judge because the record is insufficient for appellate review, and we affirm the decision of the trial judge on the other questions.
Dismissed in part, Affirmed in part.