Opinion
Record No. 2216-93-4
Decided: October 25, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, J. Howe Brown, Judge
Affirmed.
Lawrence H. Bowen (Ann W. Mische; Byrd, Mische, Bevis, Bowen Joseph, P.C., on briefs), for appellant.
Charles C. Dunn (Dunn, McCormack, MacPherson Maxfield, on brief), for appellee.
Present: Chief Judge Moon, Judge Baker and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Appellant, James Richard DeCarlo, challenges the decision of the circuit court interpreting the terms of his agreement with appellee, Debra S. Shoun, concerning the support and maintenance of the parties' three minor children and setting the amount of child support appellant must pay. We now affirm the decision of the trial court.
Appellant raises several issues for review: (1) whether the presumptively correct amount of child support determined under Code Sec. 20-108.2 should be reduced by the additional amounts he pays pursuant to the parties' Property, Custody, and Support Settlement Agreement, ("the Agreement"), as amended; (2) whether the trial court awarded child support without evidence that the children's reasonable needs justified the award; (3) whether the trial court applied a factor not contained in Code Sec. 20-108.1; (4) whether the trial court erred when determining the applicable child support guidelines; and (5) whether the trial court erred in awarding attorney's fees to appellee.
The circuit court conducted several hearings during which the parties presented evidence and argument. On questions of fact raised by appellant,
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.
Martin v. Pittsylvania Dep't of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). However, "[i]n construing the terms of a property settlement agreement, just as in construing the terms of any contract, we are not bound by the trial court's conclusions as to the construction of the disputed provisions." Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d 593, 595 (1986).
Under the terms of the Agreement, the parties agreed to recalculate child support annually based on each party's adjusted gross income for the previous year. The parties also agreed to make annual contributions each January to a college education fund for each of the three children. Appellant agreed to maintain life insurance with his children as irrevocable beneficiaries. The parties agreed that appellant would maintain medical insurance coverage for the minor children, but they would split medical expenses not covered by insurance. The Agreement also provided for the payment of expenses, including attorney's fees, involved in the "successful enforcement" of the Agreement.
Paragraph 8 provides, in pertinent part:
8. SUPPORT AND MAINTENANCE OF CHILDREN. . . . [T]he husband shall pay to the wife, as and for the support and maintenance of the parties' three minor children, the sum of . . . $2,625.00 per month . . . .
* * * * * * *
The parties agree that in January of each year hereafter, commencing in 1992, they shall recompute the amount of child support payable by the husband to the wife based upon the parties' respective gross income for the immediately-preceding calendar year.
Paragraph 10 provides, in pertinent part:
10. EDUCATION OF THE CHILDREN. Each party, in January of each year during the minority of any child, commencing in January of 1992, shall contribute an amount equal to one percent of his or her adjusted gross income for the preceding calendar year to college education funds for each of the three children (thus currently totaling three percent per year of adjusted gross income).
Paragraph 11 provides, in pertinent part:
11. LIFE INSURANCE. The husband agrees to maintain in full force and effect, and pay all premiums on, insurance on his life having face value of $400,000.00, with the children as equal irrevocable beneficiaries, until the parties' youngest child attains the age of 18 years.
Paragraph 12 provides, in pertinent part:
12. MEDICAL INSURANCE. The husband shall maintain for the benefit of the children, and pay the costs of, his present policy of high-option medical insurance . . . for so long as he is obligated to support or educate said children . . . .
* * * * * * *
The parties agree, as to medical expenses as to a child which are not covered by insurance, that they shall be responsible for same in the following ratio: Husband, two-thirds; wife, one-third. Medical expenses shall be deemed to include surgical, nursing, hospital, dental, orthodontic, psychological, psychiatric, and ophthalmic expenses.
I. Credit for Amounts Paid under the Agreement
The trial court first computed the amount appellant would be obligated to pay in child support under Code Sec. 20-108.2, based upon his current income. See Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991). The trial court then satisfied the requirements of Code Sec. 20-108.2(A) by making "written findings in the order . . . that the application of the guidelines would be unjust or inappropriate in a particular case as determined by relevant evidence pertaining to the factors set out in Sections 20-107.2 and 20-108.1."
Specifically, the trial court used the parents' previous year's income rather than their current income when determining child support, as provided in their Agreement. See Code Sec. 20-108.1(B) (16). It imputed additional income to appellee for a voluntary period of unemployment. See Code Sec. 20-108.1(B) (3). Also, in calculating the total amount of child support, the court included the additional payments made by appellee for child care and for health care coverage, as allowed under Code Sec. 20-108.2.
Following an earlier dispute, appellee rather than appellant had been the party paying for the children's health insurance coverage.
The court noted that both parties made additional payments for uninsured health expenses and education, and appellant also paid life insurance premiums. However, the court refused to reduce appellant's child support payments by these amounts, holding that the payments "were negotiated . . . as a package," and "neither party's obligation as to statutory guideline child support should be adjusted based on such payments." See Code Sec. 20-108.1(B) (16).
While Code Sec. 20-108.1(B) (6) authorizes the court to modify the presumptive amount of child support by "[d]irect payments ordered by the court for health care coverage, maintaining life insurance coverage . . ., education expenses, or other court-ordered direct payments for the benefit of the child," we agree with the trial court's conclusion that the parties' Agreement expressly contemplated a series of payments, one of which was the statutory child support payment. When the Agreement was signed, father's initial payment was $2,625.00. Father's obligation is presently calculated at $5,349.41. However, we note that the increase is a direct consequence of the corresponding increase in father's income.
As the question before the trial court and this Court is the correct interpretation of the parties' Agreement, we are not faced with, and therefore do not address, whether modification of the amount of child support might be appropriate under other circumstances.
Therefore, we affirm the decision of the trial court denying a reduction in the amount of child support by amounts paid by appellant as life insurance premiums, uninsured medical expenses, and contributions to college education funds.
II. Demonstration of Children's Reasonable Need
"Child support awards are based not solely upon need, but also upon the ability to provide support." Conway v. Conway, 10 Va. App. 653, 658, 395 S.E.2d 464, 466 (1990). In Conway, we held that the "husband should share his increased income to provide for more than basic necessities for his children who are still his legal responsibility." Id. at 657, 395 S.E.2d at 466.
The presumptive correctness of the statutory guidelines is no less valid when large incomes are involved. "To determine the degree to which the non-custodial spouse should share his or her prosperity, a court must look both to the Code and to traditional standards of reasonableness." Id. at 658, 395 S.E.2d at 466. What is reasonable must be determined on a case by case basis, in relation to the particular resources of the parties.
Here, both parents remain financially able to provide more than mere food, shelter, and clothing. The guidelines authorize allocating the parents' good fortune to their children. Where, as here, the parents' incomes allow payment for additional amounts, the trial court is not limited to awarding only the bare necessities.
There was evidence before the trial court that the children's monthly expenses exceeded $6,000. The trial court reviewed that evidence and determined it was sufficient to prove that "the needs of the children . . . are compatible with [father's] support obligation as set forth herein."
We cannot say that the trial court's assessment on this point was clearly wrong or an abuse of discretion. Therefore, we affirm its decision.
III. Reliance upon an Improper Factor
Appellant objects to the trial court's observation that the children's current lifestyle was "not materially different from the lifestyle which [appellant] could provide if they were living together." While the court did not cite a specific provision of the statute as authority for its finding, we are not persuaded that the court misstated factor (10) of Code Sec. 20-108.1(B) regarding the standard of living established during the marriage.
A fair reading of the trial court's decision demonstrates that its finding was in response to appellant's criticism of expenditures for extras such as the children's music lessons and summer camp. Thus, the court was applying factor (11) of Code Sec. 20-108.1(B), noting that both appellee and appellant had substantial financial resources.
As the parents' financial resources are factors which the court may consider, we find no clear error in the trial court's finding.
IV. Applicable Guidelines
Appellant's argument that the trial court erred in applying the guidelines is without merit. The Agreement specifically referred to the
Child Support Guidelines now prevailing in the Circuit Court of Fairfax County and in the Commonwealth of Virginia, as supplemented by a certain guidelines extension prepared by Richard Byrd, Esquire, published in September of 1989, which extrapolates child support amounts for families having combined gross monthly income in excess of $10,000.00.
The Agreement makes it clear that the parties anticipated and addressed the possibility that amendments to the child support guideline extensions might be made in the future. In the Agreement's provisions, the parties indicated their intent to use whatever Fairfax County Bar guidelines are in effect when the support payments are recalculated annually.
In making such recomputations in January of each year, the parties shall utilize the aforesaid Child Support Guidelines then in effect, as well as the guideline extension prepared by Richard Byrd, or any comparable guideline extension then in prevalent use by attorneys and judges in Fairfax County.
The language of the Agreement is clear. "Where the agreement is unambiguous, its meaning and effect are questions of law to be determined by the court and the same rules of interpretation applicable to contracts generally apply to these agreements." Henderlite v. Henderlite, 3 Va. App. 539, 541, 351 S.E.2d 913, 913 (1987).
Moreover, the trial court's order of April 1992 interpreted the meaning of this clause. The interpretation was not challenged and became the law of the case.
V. Attorney's Fees
An award of attorney's fees is a matter submitted to the sound discretion of the trial court 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). 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). Based on the number of issues involved and the respective abilities of the parties to pay, we cannot say that the award was unreasonable or that the trial judge abused his discretion in making the award.
Accordingly, the decision of the trial court is affirmed.
Affirmed.