Opinion
Record No. 0987-92-1
September 14, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK JOHN E. CLARKSON, JUDGE.
(Elizabeth I. Kaplan, pro se). Appellant submitting on briefs.
(W. Brantley Basnight, III; Barry Dorans; Wolcott, Rivers, Wheary, Basnight Kelly, P.C., on brief), for appellees Albert and Libbie Kaplan. Appellees submitting on brief.
(Debra C. Albiston; Weinberg Stein, on brief), for appellee Jay Allen Kaplan. Appellee submitting on brief.
Present: Judges Baker, Willis and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Elizabeth I. Kaplan (wife) appeals from a final decree entered by the Circuit Court of the City of Norfolk (trial court) that awarded $18,960 in fees to the guardian ad litem, of which wife was ordered to pay $11,985, retroactively reduced the child support obligation of Jay A. Kaplan (husband) beginning October 1, 1991, and found that a settlement agreement had been reached between wife, husband and the paternal grandparents, Albert and Libbie Kaplan (grandparents), as to all pending causes of action. The trial court denied wife's motion for reconsideration based upon the alleged perjury of husband.
Under familiar principles, we view the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the prevailing party below. Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988). Where 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."Id. As the parties are fully conversant with the record in this case, we will not recite the facts except as necessary to a disposition of the issues on appeal.
Wife first contends that because the guardian ad litem was appointed pursuant to Code § 16.1-266, the trial court was prohibited by Code § 16.1-267 from awarding guardian ad litem fees in excess of $100 or an amount specified in Code § 19.2-163. The record reveals that the guardian ad litem was appointed pursuant to Code § 16.1-266(D).
In two previous opinions, the Attorney General of Virginia has opined that the fee of a guardian ad litem appointed to represent a minor child pursuant to Code § 16.1-266(D) is not subject to the maximum fee limitations for court-appointed counsel set forth in Code § 16.1-267. Op. Va. Att'y Gen. 177 (Dec. 2, 1980); Op. Va. Att'y Gen. 153 (Oct. 27, 1986);see Patterson v. Old Dominion Trust Co., 156 Va. 763, 775, 159 S.E. 168, 172 (1931). Although opinions of the Attorney General are not binding upon this Court, they are "persuasive" and "may be used as an 'aid in construing legislative intent.'" Diggs v. Commonwealth, 6 Va. App. 300, 304-05, 369 S.E.2d 199, 201-02 (1988). Moreover, the "legislature is presumed to have had knowledge of the Attorney General's interpretation of the statutes, and its failure to make corrective amendments evinces legislative acquiescence in the Attorney General's view."Richard L. Deal Assocs., Inc. v. Commonwealth, 224 Va. 618, 622, 299 S.E.2d 346, 348 (1983). For the reasons stated, we hold that the trial court was not limited by Code § 16.1-267 in its award of guardian ad litem fees.
Wife further argues that the trial court erred by failing to inquire as to her financial ability to pay guardian ad litem fees as required by Code § 16.1-267(A). That statutory mandate, however, applies only to a guardian ad litem appointed pursuant to Code § 16.1-266(A) or (B). Code § 16.1-267(A). Here, the guardian ad litem was appointed pursuant to Code § 16.1-266(D); thus, wife's claim is without merit.
Wife next argues that the trial court erred by denying her motion for reconsideration based upon the alleged perjury of husband. Wife contends that husband concealed "substantial income producing assets" in his testimony before the trial court.
On appeal, the judgment of the trial court is presumed correct, and the burden is on the party who alleges reversible error to show by the record that reversal is the remedy to which he is entitled. Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991). "'[W]hen testimony is rejected before it is delivered, an appellate court has no basis for adjudication unless the record contains a proper proffer.'"Stultz v. Commonwealth, 6 Va. App. 439, 444, 369 S.E.2d 215, 218 (1988) (citation omitted). Wife failed to present any evidence to the trial court regarding her allegations of perjury by husband or to proffer evidence to support those allegations. Thus, we have no basis for adjudication of this issue and are precluded from considering it on appeal.
Wife next contends that the trial court erred in finding that a settlement agreement had been reached between the parties as to all pending causes of action. She asserts that no meeting of the minds occurred during the settlement negotiations.
It is well settled that in the absence of express authority, an attorney has no power to compromise or settle his client's claim. Virginia Concrete Co. v. Board of Supervisors, 197 Va. 821, 827, 91 S.E.2d 415, 420 (1956); Harris v. Diamond Constr. Co., 184 Va. 711, 721, 36 S.E.2d 573, 578 (1946); Dawson v. Hotchkiss, 160 Va. 577, 581, 169 S.E. 564, 565 (1933). In this case, wife's attorney testified that wife had given him "authority to enter into the settlement agreement." Wife testified, however, that she only "gave [her attorney] the authority to negotiate on [her] behalf," not the "authority to settle." After hearing the evidence, the trial court concluded that "authority was given" by wife and that wife's attorney "had expressed [sic] authority to settle the claims."
"When a trial court is acting as fact finder, it 'must evaluate the credibility of the witnesses, resolve the conflicts in their testimony and weigh the evidence as a whole.'" Mills v. Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718, 723 (1992) (citation omitted); Harrison v. Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160, 163 (1992). Conflicts in testimony present factual questions that are to be resolved by the trial court, and its findings will not be disturbed on appeal unless plainly wrong. Harrison, 244 Va. at 581, 423 S.E.2d at 163;Mills, 14 Va. App. at 468, 418 S.E.2d at 723. Here, the trial court resolved the conflict in the testimony in favor of wife's attorney. Credible evidence in the record supports that resolution; therefore, the trial court's finding will not be disturbed on appeal.
Wife's argument that the grandparents failed to perform an essential element of the settlement agreement because they prosecuted their contempt petition against wife is also without merit. As part of the settlement reached on October 31, 1991, the grandparents agreed to dismiss their contempt petition that had been filed in general district court. The district court then continued the pending contempt hearing to January 15, 1992. Wife refused to sign the written settlement agreement and, on January 30, 1992, was convicted of contempt in general district court.
"[R]elief will not be granted where the parties, operating with knowledge of all material facts, enter the agreement under a mutual mistake of law." Jennings v. Jennings, 12 Va. App. 1187, 1192, 409 S.E.2d 8, 12 (1991). A "mistake of law which precludes a recovery occurs when a person, with full knowledge of the facts, comes to an erroneous conclusion as to their legal effect." Williams v. Consolvo, 237 Va. 608, 614, 379 S.E.2d 333, 336 (1989). This rule "has been confined to mistakes of the general rules of law, and does not apply to the mistakes made by individuals as to their own private legal rights and interests," except in cases where the parties "have intentionally entered into an agreement to compromise and settle." Pigg v. Haley, 224 Va. 113, 125, 294 S.E.2d 851, 859 (1982).
Here, the trial court correctly held that the "parties don't have any input into what a court does as far as contempt is concerned. That's between the Court and the parties and not between the parties themselves." The parties' "erroneous conclusion" that the grandparents controlled the contempt prosecution against wife constituted a mutual mistake of law, which precludes a recovery in this instance.
Wife's final argument with regard to the settlement agreement is that there was a failure of consideration to support the agreement. However, because wife failed to present this issue before the trial court, we are precluded from considering it on appeal. See Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991); Rule 5A:18.
Lastly, wife contends that the trial court erred by retroactively reducing husband's child support obligation. We agree. Support orders of the district court remain in full force and effect until reversed or modified by the court to which an appeal has been perfected. See Martin v. Bales, 7 Va. App. 141, 145-46, 371 S.E.2d 823, 826 (1988). Code § 20-112 prohibits the retroactive modification of child support orders, except "with respect to any period during which there is a pending petition for modification, but [even then] only from the date that notice of such petition has been given to the responding party."Reid v. Reid, ___ Va. ___, ___, 429 S.E.2d 208, 210 (1993); Code § 20-112.
When the trial court retroactively reduced husband's child support obligation by decree entered April 15, 1992, a petition for modification had been pending in that court only since February 8, 1992. Thus, the trial court was prohibited by Code § 20-112 from retroactively modifying the district court's support order prior to February 8, 1992. On October 1, 1991, the date to which the trial court retroactively reduced the support obligation, there was no petition for modification pending in a court with jurisdiction. Husband's May, 1989 appeal to the circuit court did not constitute a "pending petition for modification" for purposes of Code § 20-112.
The October 10, 1991 letter confirming wife's agreement that "any reduction [would] date back to October 7, 1991" does not change our result. This agreement was clearly reached in contemplation of the petition for modification then pending in the district court, which was dismissed for lack of jurisdiction on January 30, 1992.
Accordingly, we reverse that portion of the trial court's decree that retroactively reduced husband's child support obligation to October 1, 1991, and remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part and remanded.