Russell Edward Peverell v. Karen Faye Conder Eskew ( 2002 )


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  •                   COURT OF APPEALS OF VIRGINIA
    
    
    Present: Judges Willis, Agee and Senior Judge Overton
    Argued at Alexandria, Virginia
    
    
    RUSSELL EDWARD PEVERELL
                                                  MEMORANDUM OPINION * BY
    v.   Record No. 0060-01-4                      JUDGE G. STEVEN AGEE
                                                       APRIL 23, 2002
    KAREN FAYE (CONDER) ESKEW
    
    
            FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                        Alfred D. Swersky, Judge
    
              Timothy B. Beason (Law Offices of Gwendolyn
              Jo M. Carlberg; Shoun & Bach, on briefs),
              for appellant.
    
              (Paul A. Scott; Madigan & Scott, Inc., on
              brief), for appellee. Appellee submitting
              on brief.
    
    
         Russell E. Peverell (father) appeals orders of the
    
    Alexandria Circuit Court denying his motions for the appointment
    
    of a guardian ad litem for his minor daughter, a restraining
    
    order, the modification of child support, an award of attorney's
    
    fees and a decree requiring the parties to submit to
    
    pre-docketing review and approval of their future motions.        For
    
    the following reasons we affirm in part and reverse in part.
    
                                I.   BACKGROUND
    
         As the parties are fully conversant with the record in this
    
    case and because this memorandum opinion carries no precedential
    
         * Pursuant to Code § 17.1-413, this opinion is not
    designated for publication.
    value, only those facts necessary to a disposition of this
    
    appeal are recited.
    
         Father and Karen C. Eskew (mother) were divorced in 1990
    
    and have been engaged in some form of litigation ever since.
    
    Mother was granted physical custody of the parties' two minor
    
    children (Kate and Ryan).   The children have lived for several
    
    years with mother and her second husband (Mr. Eskew) and their
    
    two children in California.    A complaint was filed with the
    
    California Department of Child and Family Services in June 2000,
    
    alleging Mr. Eskew had sexually abused Kate.   Upon learning of
    
    the complaint in September 2000, father filed a motion with the
    
    Alexandria Circuit Court on October 4, 2000, requesting, inter
    
    alia, an order awarding father sole legal and physical custody
    
    of Ryan, a restraining order to require mother to forbid Mr.
    
    Eskew from being in the presence of the parties' children, 1 and
    
    the appointment of a guardian ad litem for Kate.
    
         On October 24, 2000, by an agreed order, father was awarded
    
    physical custody of Ryan.   Also on that day, the trial court
    
    heard evidence with regard to the motion for a guardian ad litem
    
    for Kate and whether a restraining order regarding Mr. Eskew
    
    should be issued.   The trial court orally granted the motion to
    
    appoint a guardian ad litem for Kate and requested investigative
    
    
         1
           We refer to the requested order as a restraining order
    herein even though it would be directed to mother to cause the
    restraint of Mr. Eskew and not to Mr. Eskew directly.
    
                                  - 2 -
    information regarding the circumstances surrounding the need for
    
    a restraining order.   On December 13, 2000, the trial court
    
    entered an order denying, without prejudice, the request to
    
    appoint a guardian ad litem for Kate and denied the motion for a
    
    restraining order against mother as to Mr. Eskew. 2
    
         Father also filed a motion to modify child support in light
    
    of the change in Ryan's custody.      The issue of child support and
    
    the remaining issues from the October 4, 2000 motion were
    
    considered by the trial court on December 18, 2000.
    
         On that day, the trial court heard testimony regarding
    
    mother's income.   Mother testified that she and Mr. Eskew (from
    
    whom she was then separated) maintain a joint checking account
    
    in which both their payroll checks are deposited.     Mother
    
    testified that Mr. Eskew had agreed to pay her "guideline"
    
    spousal support; however, she testified that she had not
    
    received any since the separation began.     The record does not
    
    contain either a written agreement executed by mother and Mr.
    
    Eskew regarding spousal support or a court order directing
    
    payment of spousal support.
    
    
         2
           On November 28, 2000, the trial court, in a letter
    opinion, denied the request for a restraining order, stating
    "the courts in California are best equipped to deal with the
    particular aspects of this case arising out of the alleged
    conduct of [mother's estranged husband]." A copy of a November
    2, 2000 order of the Los Angeles County, California Superior
    Court was submitted to the trial court which restrains Mr. Eskew
    from coming within 100 yards of mother, her residence or the
    children's school.
    
                                  - 3 -
         Mother further testified that Mr. Eskew was paying most of
    
    her household and living expenses, but these payments were not
    
    in lieu of spousal support.       Mother also testified that while
    
    she had previously been employed full-time, she was currently
    
    employed only part-time due to stress and the need to be home
    
    with the children.    After hearing the parties' testimony and
    
    reviewing the evidence, the trial court stated from the bench
    
    regarding mother's employment:
    
               I find specifically that [mother] is not
               voluntarily underemployed and that there is
               no reason to attribute or impute any other
               income . . . .
    
                      *     *     *      *    *    *    *
    
               [S]he's not voluntarily under-employing for
               purposes of reducing any child support
               obligation she may have had.
    
    In addition, the court, sua sponte, announced:
    
               I think there needs to be in this case a
               moratorium on Court hearings. What I'm
               going to then order is that there will be no
               further matter put on this Court's docket
               without the express consent of the Court
               based on a written pleading filed by
               whichever party seeks to put it back on,
               absent some true emergency . . . .
    
    Accordingly, the trial court entered a decree on December 18,
    
    2000, requiring father to pay mother $268 per month for Kate's
    
    support.   No attorney's fees were awarded to either party.     The
    
    decree also provided:
    
               No further matters shall be put on this
               court's docket without the expressed consent
               of this court based upon a written pleading
                                  - 4 -
                filed by whichever party seeks to put the
                matter on the docket, absent some true
                emergency.
    
                                  II.   ANALYSIS
    
                           A.   THE RESTRAINING ORDER
    
         Father contends the trial court erred in failing to grant
    
    an order requiring mother to restrict Mr. Eskew's access to Kate
    
    and Ryan.   We disagree.
    
         Father's assignment of error regarding his son is moot as
    
    father now has physical custody of Ryan.        As to Kate, we note
    
    that a trial court has discretion in determining whether to
    
    issue a restraining order.     In this case, it was not error to
    
    deny the motion when there was evidence the California courts
    
    were overseeing the matter and that mother was limiting her
    
    estranged husband's contact with the daughter.        Moreover, the
    
    trial court had no jurisdiction over Mr. Eskew and no power,
    
    through mother or otherwise, to compel any particular action by
    
    a California court.    Credible evidence supports the trial
    
    court's decision, and we will not reverse it.
    
                      B.   GUARDIAN AD LITEM APPOINTMENT
    
         On appeal, father also contends the trial court erred in
    
    failing to appoint a guardian ad litem for Kate.         Again, we
    
    disagree.
    
         Father's motion did not request custody of Kate, but only
    
    that a guardian ad litem "determin[e] what would be in Kate's
    
    best interest with regard to custody."         While the trial court
                                   - 5 -
    indicated from the bench at one point that a guardian ad litem
    
    would be appointed, no order was entered to do so.
    
    Subsequently, no motion for change of custody having been filed,
    
    the trial court determined that the appointment of a guardian ad
    
    litem was not then warranted.     We do not find the trial court's
    
    decision to be erroneous.
    
         The established rule is that a guardian ad litem may be
    
    appointed after a trial judge, who is considering any legal
    
    proceeding in which the rights of a minor are involved, makes a
    
    preliminary finding that the best interests of the child require
    
    such appointment.   See Verrocchio v. Verrocchio, 
    16 Va. App. 314
    , 317, 
    429 S.E.2d 482
    , 484 (1993).    No finding was ever made
    
    by the trial court that Kate's best interest required the
    
    appointment of a guardian.     Further, as there were no present
    
    issues before the trial court in which the rights of the
    
    daughter were involved, the trial court did not abuse its
    
    discretion in failing to appoint a guardian ad litem for Kate.
    
                              C.   CHILD SUPPORT
    
                         1.   MOTHER'S GROSS INCOME
    
         Father also contends the trial court erred in applying the
    
    statutory provisions of Code §§ 20-108, 20-108.1 and 20-108.2,
    
    which resulted in the trial court failing to include all of
    
    mother's gross income in its child support determination.    Upon
    
    review, we remand this matter for further findings by the trial
    
    
                                   - 6 -
    court as the record is inadequate to permit appellate review on
    
    this issue.
    
         "Decisions concerning . . . [child] support rest within the
    
    sound discretion of the [circuit] court . . . . "     Calvert v.
    
    Calvert, 
    18 Va. App. 781
    , 784, 
    447 S.E.2d 875
    , 876 (1994).    "The
    
    trial court's decision, when based upon credibility
    
    determinations made during an ore tenus hearing, is owed great
    
    weight and will not be disturbed unless plainly wrong or without
    
    evidence to support it."   Douglas v. Hammett, 
    28 Va. App. 517
    ,
    
    525, 
    507 S.E.2d 98
    , 102 (1998).
    
         After finding a change in material circumstances, as the
    
    trial court did in this case, the starting point for determining
    
    the child support obligation of a party at a modification
    
    hearing, is to compute the presumptive amount using the
    
    guidelines and schedule found in the Code.   See Watkinson v.
    
    Henley, 
    13 Va. App. 151
    , 158, 
    409 S.E.2d 470
    , 473 (1991).     Code
    
    § 20-108.2, the statutory guideline for determining the
    
    presumptive amount of child support, is based on each party's
    
    gross income.   "Gross income" is defined, in pertinent part, as:
    
    "[A]ll income from all sources, and shall include . . . spousal
    
    support . . . ."   Code § 20-108.2(C).
    
         Neither a written agreement by the parties nor a court
    
    order, requiring the payment of spousal support to mother from
    
    Mr. Eskew, is in the record.   However, father argues the expense
    
    payments made by Mr. Eskew to mother were nonetheless de facto
                                - 7 -
    spousal support and should be part of mother's gross income as
    
    "income from all sources."    While mother denied, without
    
    contradiction, that the expense payments were in lieu of spousal
    
    support, she affirmed the amount and types of such payments.
    
         Upon review of the record, we conclude, by inference, that
    
    the trial court decided not to include the payments on behalf of
    
    mother by Mr. Eskew in her gross income as "income from all
    
    sources," but there is no factual finding by the trial court as
    
    to why these payments were excluded.    There must be a proper
    
    foundation in the record to support the granting of an award and
    
    the amount of the award.     See, generally, Stumbo v. Stumbo, 
    20 Va. App. 685
    , 693, 
    460 S.E.2d 591
    , 595 (1995).    We are thus
    
    unable to determine from the record whether the trial court
    
    erred in its calculation of child support.
    
         As we cannot accomplish an appellate review of the trial
    
    court's decision without its factual determination as to whether
    
    and why Mr. Eskew's payments to mother should be included or
    
    excluded as part of her gross income for purposes of determining
    
    child support, we must remand this issue for findings of fact by
    
    the trial court.
    
                         2.    IMPUTATION OF INCOME
    
         Father also challenges the trial court's refusal to impute
    
    income to mother whom father alleged was voluntarily
    
    underemployed.   We find no error in the trial court's decision.
    
    
                                  - 8 -
         The party seeking to impute income has the burden of proof.
    
    Brody v. Brody, 
    16 Va. App. 647
    , 651, 
    432 S.E.2d 20
    , 22 (1993).
    
    The decision to impute income is within the sound discretion of
    
    the trial court, and its refusal to impute income will not be
    
    reversed unless plainly wrong or unsupported by the evidence.
    
    Saleem v. Saleem, 
    26 Va. App. 384
    , 393, 
    494 S.E.2d 883
    , 887
    
    (1998).
    
         On appeal, the evidence is viewed in the light most
    
    favorable to mother, the prevailing party below.   See Cook v.
    
    Cook, 
    18 Va. App. 726
    , 731, 
    446 S.E.2d 894
    , 896 (1994).    In this
    
    case, credible reasons support the trial court's decision that
    
    imputation of income was not appropriate, and reflect no abuse
    
    of discretion by the trial court.
    
         It is uncontested that mother was employed previously in a
    
    full-time position and chose to resign that position without
    
    being discharged.   Father met his burden of showing mother was
    
    underemployed.   Mother was then burdened with producing evidence
    
    to explain why her underemployment was not "voluntary."
    
    Antonelli v. Antonelli, 
    242 Va. 152
    , 154, 
    409 S.E.2d 117
    , 119
    
    (1991).
    
         Viewing the evidence in the light most favorable to mother,
    
    we find credible evidence to support the finding that mother met
    
    her burden.   Mother provided the trial court with cogent reasons
    
    for being employed part-time at the time the support
    
    determination was made.   Her reasons included overseeing Ryan's
                                 - 9 -
    recovery from an automobile accident at the start of the new
    
    school year, which was followed by making time and arrangements
    
    for Kate's counseling, dealing with the multiple investigations
    
    by child protective services each time father filed a complaint,
    
    and recovering from her own medical problems.    The trial court
    
    found that mother's given reasons provided sufficient
    
    justification to be employed only part-time.    Therefore, we find
    
    no error in the trial court's decision that the evidence did not
    
    warrant an imputation of income to mother.     See, generally,
    
    Hiner v. Hadeed, 
    15 Va. App. 575
    , 
    425 S.E.2d 811
     (1993).
    
                            D.   ATTORNEYS' FEES
    
         Father also argues that the trial court erred by denying
    
    him attorney's fees.   We disagree again.
    
         "An award of attorney fees is discretionary with the court
    
    after considering the circumstances and equities of the entire
    
    case and is reviewable only for an abuse of discretion."     Gamer
    
    v. Gamer, 
    16 Va. App. 335
    , 346, 
    429 S.E.2d 618
    , 626 (1993).
    
    "The key to a proper award of counsel fees is reasonableness
    
    under all of the circumstances revealed by the record."
    
    Ellington v. Ellington, 
    8 Va. App. 48
    , 58, 
    378 S.E.2d 626
    , 631
    
    (1989).   Based on the number of issues involved and the
    
    respective abilities of the parties to pay, we cannot say that
    
    the trial court abused its discretion in ordering the parties to
    
    bear their own attorney's fees.   The decision to deny father
    
    attorney's fees is affirmed.
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                         E.   PRE-DOCKETING REVIEW
    
         Lastly, father contends on appeal that the trial court
    
    violated his due process rights when it ordered that no future
    
    matters between the parties be placed on the court's docket for
    
    hearing unless first approved by the court.      While the decree
    
    does not bar the filing of pleadings, a new matter, excluding
    
    those arising in "some true emergency," "won't be put on this
    
    court's docket without express[] consent [of the trial court]."
    
    Father contends the trial court's implementation of this
    
    pre-docketing review violates his due process rights.     We agree
    
    with father.
    
         We are cognizant of the trial court's power and authority
    
    to control its docket and will not reverse on appeal a trial
    
    court's decision related to the control of its docket unless
    
    there is a showing of an abuse of discretion and prejudice.
    
    See, generally, Mills v. Mills, 
    232 Va. 94
    , 
    348 S.E.2d 250
    
    (1986).   Generally, "[t]he determination whether a trial court
    
    has abused its discretion is fact-specific."      Walsh v. Bennett,
    
    
    260 Va. 171
    , 175, 
    530 S.E.2d 904
    , 907 (2000).     However, in
    
    assessing the propriety of the imposition of a particular
    
    decision, we may also take into account the context in which the
    
    decision was made and any policy considerations that might be
    
    pertinent to the imposition of that decision.      See, e.g., id. at
    
    176, 530 S.E.2d at 907 (holding that, in addition to
    
    constituting an abuse of discretion on the facts of the case,
                                - 11 -
    the pretrial sanction imposed by the trial court was also
    
    inappropriate because it deprived the plaintiff of a "day in
    
    court").   Under the facts of this case, the parties were denied
    
    due process by the trial court when it imposed the pre-docketing
    
    review requirement.
    
         No "State shall deprive any person of life, liberty, or
    
    property, without due process of law; nor deny to any person
    
    within its jurisdiction the equal protection of the laws."   U.S.
    
    Const. amend. XIV, § 1.   "[N]o person shall be deprived of his
    
    life, liberty, or property without due process of law."   Va.
    
    Const. art. I, § 11.
    
               "The fourteenth amendment, in declaring that
               no State 'shall deprive any person of life,
               liberty or property without due process of
               law, nor deny to any person within its
               jurisdiction the equal protection of the
               laws,' undoubtedly intended, not only that
               there should be no arbitrary deprivation of
               life or liberty or arbitrary spoliation of
               property, but that equal protection and
               security should be given to all under like
               circumstances in the enjoyment of their
               personal and civil rights; that all persons
               should be equally entitled to pursue their
               happiness and acquire and enjoy property;
               that they should have like access to the
               courts of the country for the protection of
               their persons and property, the prevention
               and redress of wrongs, and the enforcement
               of contracts; and that no impediment should
               be interposed to the pursuits of anyone
               except as applied to the same pursuits by
               others under like circumstances . . . ."
    
    C. I. T. Corp. v. Commonwealth, 
    153 Va. 57
    , 63-66, 
    149 S.E. 523
    ,
    
    525 (1929) (quoting Barbier v. Connolly, 
    113 U.S. 27
    , 31 (1884))
    
                                - 12 -
    (emphasis added).   "Due process requires that, before a court
    
    may deprive a party of a property or liberty interest, the party
    
    must receive notice and the opportunity to be heard."     Parish v.
    
    Spaulding, 
    26 Va. App. 566
    , 576, 
    496 S.E.2d 91
    , 96 (1998)
    
    (citing Williams v. Virginia Elec. & Power Co., 
    18 Va. App. 569
    ,
    
    576-77 and n.5, 
    445 S.E.2d 693
    , 698 and n.5 (1994)).
    
         That portion of the December 18, 2000 order requiring
    
    pre-docketing review was raised and implemented by the trial
    
    court sua sponte.     Neither party requested this action, and no
    
    prior notice was given to the parties that the trial court
    
    intended to so act.    The trial court heard no argument prior to
    
    issuing its ruling.    There is nothing in the record before us
    
    evidencing that either party has abused its right to access the
    
    trial court's docket and warranting the pre-docketing review.
    
    For example, there is no showing of abuse of process or the
    
    filing of frivolous pleadings. 3   Because the record lacks
    
    evidence of the due process procedural requirements, the trial
    
    
         3
           For examples of where there has been an imposition of
    restrictions on the right to access a court, see Shief v.
    Kakita, 
    517 U.S. 343
     (1996) (after multiple frivolous filings by
    the appellant, the Court directed "the Clerk not to accept any
    further petitions for certiorari from [appellant] in noncriminal
    matters unless he pays the docketing fee required by [Supreme
    Court] Rule 38 and submits his petition in compliance with
    [Supreme Court] Rule 33.1"); Jones v. ABC-TV, 
    516 U.S. 363
    (1996) (same); Attwood v. Singletary, 
    516 U.S. 297
     (1996)
    (same); Brock v. Angelone, 
    105 F.3d 952
    , 954-55 (4th Cir. 1997)
    (after multiple frivolous filings by the appellant, appellant
    enjoined from filing any further civil appeals until monetary
    sanctions are paid, and unless a district court judge certifies
    that his claim is not frivolous).
                                - 13 -
    court's sua sponte order, which places barriers upon the
    
    parties' full access to the court is, therefore, contrary to
    
    basic due process and requires reversal.    In so holding, we make
    
    no judgment as to whether pre-docketing review may be justified
    
    on the merits of this case, provided the parties are first
    
    accorded the basic rights of notice and the opportunity to be
    
    heard.
    
         Accordingly, we reverse and remand for further findings of
    
    fact as to the issue of whether Mr. Eskew's payments to mother
    
    are to be included or excluded from her gross income when
    
    calculating guideline child support; and we reverse and vacate
    
    that portion of the December 18, 2000 order which bars the
    
    parties from access to the court's docket without prior court
    
    approval.   All other decisions by the trial court are hereby
    
    affirmed.
    
                                                      Affirmed, in part;
                                         reversed and remanded, in part;
                                           reversed and vacated in part.
    
    
    
    
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