Opinion
Record No. 2375-92-1
August 17, 1993
FROM THE FAMILY COURT OF THE CITY OF CHESAPEAKE FREDERICK H. CREEKMORE, JUDGE.
(John F. Rixey; Rixey Rixey, on brief), for appellant.
(William Drinkwater, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the family court. Rule 5A:27.
Linda Rowland ("mother") appeals from orders of the family court entered June 29, 1992 and November 3, 1992 which provided to Edward David Shurbutt certain visitation rights with regard to Kai Rowland ("infant child"). The June 29, 1992 order provided that Shurbutt be required to pay child support for the benefit of the infant child beginning April 1, 1992 and continuing, in the amount of $339.70 per month, based on the guidelines incorporated in the Code of Virginia.
Mother contends that the trial court erred in (1) failing to appoint a guardian ad litem for the infant child; (2) failing to consider the testimony of her witness, Marjorie Frost; and (3) failing to direct Shurbutt to make child support payments effective with the date of the birth of the child or upon the first order for child visitation. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
I.
The infant child was born on September 3, 1991. Mother was married to Levy Rowland at the time of the infant child's birth. One month after the birth of the infant child, Shurbutt filed a petition requesting joint custody of the infant child and visitation rights. In the petition, Shurbutt recognized his obligation to provide support and maintenance for the infant child. It was later shown by blood tests that Shurbutt is the biological father of the infant child. Shurbutt was awarded joint custody along with mother; however, mother was awarded physical custody of the infant child. These rulings are not the subject of this appeal.
Mother argues that Code § 16.1-266 required that the trial court appoint a guardian ad litem for the infant child. She contends that the court's refusal to do so constitutes reversible error. We disagree.
Code § 16.1-266, by its plain language, requires that the courtshall appoint a guardian ad litem only in situations involving a child who is before the court because of an allegation of child abuse or neglect, or who is the subject of an entrustment agreement or a petition terminating residual parental rights, or whose parents for good cause desire to be relieved of care and custody of the child. These issues were not present during the proceedings in this case.
Code § 16.1-266(D) provides that in all other cases the court in its discretion may appoint a guardian ad litem. Moreover, § 16.1-266(D) specifically provides that where custody of the child is the subject of the controversy and each of the parents claiming custody is represented by counsel, the court shall not appoint counsel or a guardian ad litem to represent the interests of the child, unless the court finds that the interests of the child are not otherwise adequately represented.
During the May 1992 and September 1992 trials, both mother and Shurbutt were represented by counsel. Additionally, mother has not pointed to any evidence in this record to suggest that the infant child's interests were not adequately represented.
Accordingly, we cannot say that the court abused its discretion in denying mother's request for appointment of a guardian ad litem.
II.
Marjorie Frost, a witness who testified on behalf of mother at the May 1992 trial, was not permitted to express her opinion as to whether Shurbutt should be granted visitation rights. Mother attempted to qualify Frost as an expert mother and parent in order to allow her to testify with regard to her opinion.
"Whether expert testimony is admissible on a certain issue is within the discretion of the trial court." Nichols v. Commonwealth, 6 Va. App. 426, 430-31, 369 S.E.2d 218, 220-21 (1988). Moreover, "[i]t is well settled . . . that an expert witness is not permitted to express an opinion as to an ultimate issue of fact that must be determined by the trier of fact." Davis v. Commonwealth, 12 Va. App. 728, 731, 406 S.E.2d 922, 923 (1991) (citation omitted).
The trial judge did not abuse his discretion in refusing to allow Frost to testify to the opinion where it involved the ultimate issue in the case which was to be decided. Additionally, Frost was not qualified to give the opinion requested as she did not know Shurbutt and had, in fact, never seen him before the court hearings.
Although not effective until July 1, 1993, Code § 8.01-401.3 significantly changes the rule applicable to expert opinions.
III.
"Code § 20-107.2(2) vests discretion in the trial court in awarding child support and such awards will not be reversed on appeal unless plainly wrong or unsupported by the evidence."Young v. Young, 3 Va. App. 80, 81, 348 S.E.2d 46, 47 (1986) (citations omitted). In Hur v. Virginia Dep't of Social Servs. Div. of Child Support Enforcement, ex rel. Klopp, 13 Va. App. 54, 62, 409 S.E.2d 454, 459 (1991) (citations omitted), this Court recognized that when child support shall commence is within the sound discretion of the court.
Here, the trial court ordered the child support to begin in April 1992, approximately at the same time that the court ruled that Shurbutt is the infant child's biological father and awarded him normal visitation rights. Prior to this time, mother had denied Shurbutt's paternity, wanted nothing to do with Shurbutt and had resisted Shurbutt's requests for visitation rights. Based on this record, we find that the trial court did not abuse its discretion in ordering the child support payments to begin on April 1, 1992.
For the reasons stated, we affirm the decision of the family court.
Affirmed.