Opinion
Record No. 2565-93-4
Decided: January 24, 1995
FROM THE CIRCUIT COURT OF CLARKE COUNTY, James L. Berry, Judge
Joe S. Ritenour (Law Office of Joe S. Ritenour, P.C., on brief), for appellant.
Mary Ellen Craig (Craig Hirsch, P.C., on brief), for appellee.
Present: Judges Barrow, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
This appeal raises multiple issues involving the custody and support of the parties' two daughters. We affirm the judgment of the trial court except for its order directing that child support payments be made directly to the father.
CUSTODY
In determining custody and visitation of minor children, the best interests of the children are paramount. Ferris v. Underwood, 3 Va. App. 25, 28, 348 S.E.2d 18, 19 (1986). In making this decision, a court must consider those factors enumerated in former Code Sec. 20-107.2. A change of custody is warranted if a change of circumstances has occurred since the most recent custody award and the requested change of custody is in the best interests of the child. Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983). On review, this Court views the evidence in the light most favorable to the party prevailing below and will not disturb the judgment of the trial court unless it is plainly wrong or unsupported by the evidence. Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988).
We have reviewed the conflicting evidence "in the light most favorable" to the father and are unable to conclude that the trial court was plainly wrong or that its decision was not supported by the evidence. Consequently, we may not reverse the decision permitting the father to retain custody of the two daughters.
REPORT OF GUARDIAN AD LITEM
The fact finder may not consider documents unless admitted into evidence. The opposing party has neither notice nor an opportunity to rebut the evidence. See Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 258, 369 S.E.2d 1, 16 (1988). Although the mother asserts that a report of the guardian ad litem was considered by the trial court without being formally admitted into evidence, she cannot identify how the report prejudiced her. In addition, the contents of the report were addressed by the guardian ad litem in his in-court statement and by other evidence presented at trial. Therefore, even if it was error to consider the report, the error is harmless. See Sweat v. Stinnet, 185 Va. 42, 45, 37 S.E.2d 855, 856 (1946).
AGE OF DISCRETION
In determining custody, the children's reasonable preference is one of the factors the court must consider. See former Code Sec. 20-107.2(7). If the children have reached the age of discretion, their wishes should be given weight but are not controlling. Hall v. Hall, 210 Va. 668, 173 S.E.2d 865 (1970). The mother refers us to neither statute nor case law requiring a trial court to make an explicit finding on the record that the children are or are not at the age of discretion.
The trial court heard the recommendation of the guardian ad litem, met with the children in camera, and considered their "reasonable" preferences. We conclude that the court was not required to rule explicitly that the children were or were not of the age of discretion.
CHILD SUPPORT AWARD 1. Mother's Expenses
The trial court deviated from the child support guidelines because the mother was "free from ordinary expenses due to her husband's income." The court's order contained a written finding to this effect, stated the presumptive amount of support required under the guidelines, and justified the variation from the guidelines in Code Sec. 20-108.1(B) (11) concerning the "obligations and needs, and financial resources of each parent." The trial court's determination of child support was not based on the income of the wife's husband; instead, it was based on the wife's reduced obligations because she shared certain ordinary expenses with her husband. Had the determination been based on her husband's income, it would have resulted in an even larger award. The trial court's determination was within the limits imposed by Code Sec. 20-108.1 and conformed to the statute's requirements. Therefore, we conclude that the trial court did not err.
2. Misrepresentation of Income
Even if the father misrepresented his income to the court, this fact did not justify increasing his support obligation, except to assure that he was paying the correct amount. The court found that the father's projected income for 1993 was $75,436 and based its support calculations on this figure, not on his misrepresented figures.
A deviation from the presumptive amount of support must be in the best interests of the child. Code Sec. 20-108.1(B). The statutory grounds for deviation from the presumptive amount do not include punishing a parent for misconduct. Therefore, the trial court did not abuse its discretion in declining to increase the husband's support obligation because of his alleged misrepresentation of income.
3. Payments
Code Sec. 20-60.5(B) requires that "all orders or decrees for support . . . shall direct that payment be made only to the payee unless one of the parties objects, in which case the order or decree shall direct that payment be made to or through the Department of Social Services." (Emphasis added). The mother objected to paying support directly to the father. The statute gives the trial court no discretion on this issue, and the trial court failed to comply with the statute. Consequently, we reverse this provision in the trial court's order and order the mother to pay child support payments through the Department of Social Services as required by Code Sec. 20-60.5(B).
HISTORY OF ABUSE
Code Sec. 20-107.2(6) requires the court to consider "any history of family abuse as defined in Sec. 16.1-228" in determining what custody arrangement is in the best interests of the children. Family abuse is "any act of violence, including any forceful detention, which results in physical injury or places one in reasonable apprehension of serious bodily injury and which is committed by a person against such person's family or household member." Code Sec. 16.1-228. Household members include "the person's parents, stepparents, children, stepchildren, brothers, sisters . . . who reside in the same home with the person." Id.
The trial court's opinion letter listed the factors specified in former Code Sec. 20-107.2 and described the court's findings regarding each factor. Next to finding number "6" the court listed "N/A." The mother argues that this notation represents a finding of fact contrary to the facts as presented at trial or a conclusion of law contrary to the applicable law.
The meaning the mother attributes to the trial court's notation is, at best, speculative. We cannot assume, as one of her suggestions does, an error of law. "The judgment of the trial court is presumed to be correct and the party who asserts the contrary is required to overcome the presumption by record proof." Broom v. Broom, 15 Va. App. 497, 504, 425 S.E.2d 90, 94 (1992); see Mack v. Commonwealth, 177 Va. 921, 929, 15 S.E.2d 62, 65 (1941). Nor can we assume an erroneous finding of fact because we must view the evidence in the light most favorable to the husband who prevailed in the trial court. See Peple v. Peple, 5 Va. App. at 422, 364 S.E.2d at 237. Therefore, we are unable to hold that the trial court erred in the use of this notation.
ATTORNEY'S FEES AND COSTS
The trial court has discretion to award attorney's fees and its decision will be reviewed only for abuse of discretion. Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). The father argues that the mother should be responsible for his legal fees because she initiated the litigation which has cost him over $35,000 to defend. We are unable, however, to conclude from this record that the trial court's refusal to award fees was an abuse of discretion.
COSTS OF PSYCHOLOGICAL EVALUATION
The father argues that the trial court erred in declining to order the mother to reimburse him for the expenses of the psychological evaluation conducted by Dr. Lindenberger. In general, courts of equity have discretion to award costs. Code Sec. 14.1-177; Verrocchio v. Verrocchio, 16 Va. App. 314, 322, 429 S.E.2d 482, 487 (1993). We cannot conclude from this record that the trial court abused its discretion in refusing to order the mother to reimburse the father for these costs.
For these reasons, we affirm the decree appealed from except for the provision requiring the mother to pay child support directly to the father and, in lieu thereof, we order that she pay this support through the Department of Social Services as required by Code Sec. 20-60.5(B).
Affirmed in part; reversed in part.