Opinion
Record No. 2274-93-2
Decided: December 13, 1994
FROM THE CIRCUIT COURT OF HENRICO COUNTY, Buford M. Parsons, Jr., Judge
Affirmed.
W. Christopher Currie (Currie and Honey, on brief), for appellant.
Michael C. Allen (Hairfield, Morton, Allen, on brief), for appellee.
Present: Judges Benton and Fitzpatrick, and Senior Judge Cole
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
John A. Fernandez-Miranda (father) appeals the decision of the circuit court awarding custody of his teenage son to Helen Maxie (mother) and resolving other issues. We affirm.
Father contends: (1) the trial court erred in awarding custody of the parties' son to mother; (2) the trial court erred when it included the cost of boarding school tuition in its child support calculation; (3) the trial court's factual findings are unsupported by evidence; and (4) the trial court erred when it did not award father $12,000 in attorney's fees.
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, the resolution of "issues concerning the care, custody, support and maintenance of the minor [child] . . . and the extent to which those rights and responsibilities shall be apportioned between estranged parents is a matter of judicial discretion which courts must exercise with the welfare of the [child] as the paramount consideration." Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986).
I. Custody
The circuit court ruled that the best interests of the parties' teenage son were served by retaining custody with mother and granting visitation to father. This determination is a matter within the court's discretion and "is reversible on appeal only for an abuse of that discretion." Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990).
The parents' testimony reflected widely divergent attitudes toward their son. Mother testified that she was "pretty proud of [the son's] academic status," felt he was very mature, and believed he was adjusting well socially and academically. Mother testified she visited her son "about five times during the year" from her home in New York City. Mother was supportive of her son's continuing his education at Choate Rosemary Hall (Choate).
In contrast, father's testimony demonstrated animosity toward mother and little confidence in his son's character, whom he described as being "still immature in many ways . . . and he has no values." Father did not visit his son during his freshman year at boarding school, stating that the school was five hundred miles away and "extremely difficult to get to" from his home in Washington, D.C. Father also gave conflicting testimony concerning his willingness to let his son continue at Choate.
The guardian ad litem reported that the son wanted to remain with his mother and to return to boarding school at Choate. The teenager so testified at the hearing. The son's testimony also indicated tension between himself and his father, in part because his father "wouldn't listen to [his] views and did not give any reason for not accepting [his] views."
In the past, both parents had demonstrated questionable behavior. Mother was uncooperative in facilitating contact between father and son. Father, however, squandered several opportunities to spend time with his son in an effort to improve their relationship.
Credible evidence supports the trial court's decision that it was in the best interests of the parties' son for custody to remain with mother. Therefore, there was no abuse of the trial court's discretion.
II. Inclusion of Tuition in Support Calculations
Among the evidence of the son's expenses presented by mother was a summary of Choate's tuition and fees for the upcoming year. The trial judge included these costs within the child support calculation, ruling that, under Code Sec. 20-108.1, "an award of extraordinary support over and above the presumptive amount determined by application of the guidelines . . . is justified and is appropriate and necessary for the protection and furtherance of the best interests of the minor son."
The court first determined the parties' respective child support responsibility under the guidelines, based upon their joint monthly income. See Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991). The trial court then determined that an additional amount was warranted to allow the parties' son to continue at his current school. The trial court included the actual cost of tuition, which was reduced by a scholarship, and the cost of school books and supplies. The court did not include other school-related expenses listed by mother, such as laundry, long distance calls, or clothes, noting that those costs were general child support expenses.
The trial court indicated in writing why it deviated from the presumptive amount of child support and which factors it considered important in reaching its decision. There was evidence supporting the trial court's determination that continuing at the same boarding school was in the child's best interests. While father now challenges his son's attendance at Choate, his testimony at the hearing was supportive of his son's continuing at that school, as long as his son performed well.
Therefore, we cannot say the trial court erred or abused its discretion by including the cost of boarding school tuition and related fees as an additional expense within the child support calculation.
III. Findings of Fact
"[A] court speaks only through its orders." Walthall v. Commonwealth, 3 Va. App. 674, 679, 353 S.E.2d 169, 171 (1987). The trial court's written order conforms with the substance of the court's ruling from the bench. Therefore, father's challenge to the written order on the ground it varied from the oral ruling is unpersuasive.
Moreover, the transcript of the October 18, 1993, hearing makes clear that the trial court modified one paragraph of mother's draft order but otherwise accepted the remaining portions unchanged, thus adopting as its own the recitation of factual findings. As these findings were supported by evidence presented during the hearings, we find no error in the court's findings of facts.
IV. 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).
The trial judge awarded father $6,500 as a reasonable amount of attorney's fees related to the enforcement of this Court's order remanding father's previous appeal to the circuit court. While father sought $12,000 in attorney's fees, the trial judge determined father's responsibilities to enforce the order did not require the additional efforts he expended after issuance of an arrest warrant. Based on the issues involved and the costs incurred, 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 circuit court is affirmed.
Affirmed.