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Donato v. Donato

Court of Appeals of Virginia
Sep 15, 1994
Record Nos. 1876-93-4 and 2006-93-4 (Va. Ct. App. Sep. 15, 1994)

Opinion

Record Nos. 1876-93-4 and 2006-93-4

Decided: September 15, 1994

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Rosemarie Annunziata, Judge

Affirmed.

(David I. Donato, pro se, on briefs).

(Daniel J. Travostino, on brief), for appellee.

Present: Judges Barrow, Koontz and Bray


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


David I. Donato (father) appeals the decisions of the circuit court setting the amount of child support payable to Liberte' A. Donato (mother) and deciding other issues. Upon reviewing the record and briefs of the parties, we conclude that these appeals are without merit. Accordingly, we summarily affirm the decisions of the trial court. Rule 5A:27.

Father filed a "Motion for Incorporation into Record," seeking to make a part of the record on appeal transcripts which were not timely filed. Transcripts become a part of the record on appeal only if filed in compliance with the requirements of Rule 5A:8. See Twardy v. Twardy, 14 Va. App. 651, 654, 419 S.E.2d 848, 849 (1992)(reh'g en banc). Therefore, father's motion is denied.
Despite the absence of these properly filed transcripts, the record is sufficient for us to review the questions presented.

Father raises the following issues on appeal:

(1) whether father is entitled to recover all costs he incurred in locating and obtaining custody of the children;

(2) whether the trial court erred in not imputing income to mother for purposes of child support;

(3) whether the trial court erred in setting the amount of father's child and spousal support payments;

(4) whether the trial court exceeded its authority in ordering a modification of visitation; and

(5) whether the trial court abused its discretion by delaying the issuance of its decree.

Standard of Review

On appeal, father bears the burden of demonstrating by the record that the trial court erred or abused its discretion in reaching its decision. "The judgment of the trial court is presumed correct and he who asserts the contrary is required to overcome the presumption by record proof . . . ." Kaufman v. Kaufman, 7 Va. App. 488, 499, 375 S.E.2d 374, 380 (1988). "The judgment of a trial court sitting in equity, when based upon an ore tenus hearing, will not be disturbed on appeal unless plainly wrong or without evidence to support it." Box v. Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986).

Costs of Locating Children

Whether to award attorney's fees or court costs is a matter left to the sound discretion of the trial court. See, e.g., Steinberg v. Steinberg, 11 Va. App. 323, 329, 398 S.E.2d 507, 511 (1990). The trial court ordered mother to pay $6,000 for expenses father incurred in locating mother and the children. While father asserts he has incurred substantially greater amounts, we cannot say that the trial court abused its discretion in setting the amount of reimbursement to father.

Support Payments

Father has failed to make specific arguments concerning his allegation that the trial court erred in its award of spousal support. Accordingly, while we address his arguments as to child support, we do not address the issue of spousal support. "Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration. We will not search the record for errors in order to interpret appellant's contention and correct deficiencies in a brief."
Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).

Under Code Sec. 20-108.1, there is a rebuttable presumption that "the amount of the award [of child support] which would result from the application of the guidelines set out in Sec. 20-108.2 is the correct amount of child support to be awarded." The presumption may be rebutted if the court finds, in writing, that application of the guidelines "would be unjust or inappropriate in a particular case." In the presumptive correctness of the guidelines, the court may impute income "to a party who is voluntarily unemployed or voluntarily under employed." Code Section Sec. 20-108.1(B) (3).

The parties' filings and the court's order of September 2, 1993, establish that the court determined the amount of applicable child support under the provisions for shared custody. Pursuant to the guidelines, the court ordered net child support payments to mother of $316. Father's challenges to the amount of child support are not sufficient to rebut the court's application of the statutory guidelines.

The record indicates mother was not employed outside the home during the marriage, and repeatedly sought, and obtained, employment following the parties' separation. Mother also returned to college to obtain the necessary training to seek employment as a graphic artist. However, there is no evidence in the record reflecting higher-paid opportunities which mother refused. Any attempt to impute income to her would be mere speculation.

Accordingly, the trial court did not err in refusing to impute income to mother for the purposes of computing child support, or in setting the amount of child support pursuant to the shared custody guidelines.

Modification in Visitation

As this matter was pending before the trial court, there is no question that the trial court had jurisdiction to hear, and grant, mother's motion to modify the parties' visitation schedule in order to allow the parties' son to attend a one-week session of summer camp. The record demonstrates father strongly objected, but does not provide support for father's claim that the trial court exceeded its authority in any way.

Length of Litigation

The record indicates hearings were held December 30, 1992, and on January 4, 5, 7, and 20, March 19, and June 9 in 1993. Both parties made extensive filings in this matter, including numerous motions by father. The record reflects the fact that on the whole the parties acted in good faith to resolve honest disputes concerning the outstanding issues of child and spousal support.

Therefore, we cannot say father has demonstrated any abuse of discretion on the part of the trial court in the timing of its September 2, 1993 order.

Accordingly, the decisions of the trial court are summarily affirmed.

Affirmed.


Summaries of

Donato v. Donato

Court of Appeals of Virginia
Sep 15, 1994
Record Nos. 1876-93-4 and 2006-93-4 (Va. Ct. App. Sep. 15, 1994)
Case details for

Donato v. Donato

Case Details

Full title:DAVID I. DONATO v. LIBERTE' A. DONATO

Court:Court of Appeals of Virginia

Date published: Sep 15, 1994

Citations

Record Nos. 1876-93-4 and 2006-93-4 (Va. Ct. App. Sep. 15, 1994)