Sheila Roche v. Stephen Roche ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
SHEILA ROCHE
MEMORANDUM OPINION *
v. Record No. 1807-98-4 PER CURIAM
MAY 4, 1999
STEPHEN ROCHE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
(Dennis M. Hottell; Carolyn T. Hogans; David
Ginsberg; Dennis M. Hottell & Associates,
P.C., on brief), for appellant.
(Michael A. Mays, on brief), for appellee.
Sheila Roche (mother) appeals the decision of the circuit
court granting the plea of Stephen Roche (father) to dismiss
this action under the doctrine of forum non conveniens. Mother
contends that the trial court erred by ruling that Virginia was
an inconvenient forum because Virginia had jurisdiction for the
child support arrearage and because father is a beneficiary of a
testamentary spendthrift trust which contains funds which could
satisfy the arrearage. Mother also sought attorney’s fees and
costs. Upon reviewing the record and briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. See Rule
5A:27.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Under familiar principles, we view the
evidence and all reasonable inferences in
the light most favorable to the prevailing
party below . . . . “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.” We are not the
fact-finders and an appeal should not be
resolved on the basis of our supposition
that one set of facts is more probable than
another.
Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859
(1992) (citation omitted).
By order of the Fairfax County Juvenile and Domestic
Relations District Court, entered February 9, 1984, father was
required to pay $100 in monthly child support, raised to $200 a
month as of September 1984, plus $100 per month to pay a $600
support arrearage. Both parties subsequently moved to
California. In October 1992, the Plumas County Superior Court
in California terminated father’s child support obligation as of
July 1, 1992. Mother filed a Petition for Rule to Show Cause in
the Circuit Court of Fairfax County on May 7, 1998, seeking to
recover approximately $50,000 in support arrearage from father’s
interest in the spendthrift trust established by his mother’s
will, which was probated in Fairfax County. Father entered a
plea of forum non conveniens. In support of his plea, father
presented evidence that the parties resided in California and
that a California court entered the most recent order in this
matter. Father also presented evidence that he suffers from
- 2 -
degenerative disc disease and that the Social Security
Administration found him to be disabled because of this disease
and the accompanying depression. By affidavit, father asserted
that he was unable to work or to attend hearings in Virginia due
to this disease.
Forum Non Conveniens
We find no error in the trial court’s decision granting
father’s plea.
The transfer decision is within the
court's discretion, and, as with other
discretionary acts, there is no clear
formula which can be mechanically applied.
Circumstances ordinarily considered in
motions to transfer on the basis of forum
non conveniens include
“relative ease of access to
sources of proof; availability of
compulsory process for attendance
of unwilling, and the cost of
obtaining attendance of willing
witnesses; possibility of view of
premises, if view would be
appropriate to the action; and all
other practical problems that make
trial of a case easy, expeditious
and inexpensive.”
Norfolk and W. Ry. Co. v. Williams, 239 Va. 390, 393, 389 S.E.2d
714, 716 (1990) (citation omitted).
Mother relies upon Commonwealth ex rel. Kenitzer v.
Richter, 23 Va. App. 186, 475 S.E.2d 817 (1996). That case is
distinguishable. Unlike the circumstances in the present case,
the trial court in Richter erroneously ruled that it lacked
- 3 -
jurisdiction. See id. at 191-93, 475 S.E.2d at 820. Moreover,
in this case, the parties live in a single state which has
already entered a child support order. In Richter, the wife
lived in California, the husband lived in South Carolina, and
the wife unsuccessfully sought to resolve the matter of
arrearage in South Carolina before seeking to pursue her claim
in Virginia. Mother concedes that she could pursue her claim in
California. The trial court found that “[b]oth considerations
of judicial administration and convenience to the parties
indicate that California is the more appropriate forum . . . .”
While mother seeks to reach father’s interest in the Virginia
spendthrift trust to satisfy the child support arrearage, the
amount of arrearage first must be ascertained. The evidence,
both documentary and testimonial, necessary to determine the
amount of the arrearage is more easily presented in California
where the parties reside. We find no error in the trial court’s
decision to transfer resolution of that contested issue to a
location more convenient to both parties.
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. See 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.
- 4 -
See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985). We find unpersuasive mother’s claim that father is
financially responsible for her attorney’s fees because he is the
beneficiary of a spendthrift trust. We cannot say that the trial
judge abused his discretion in failing to award mother attorney’s
fees and costs.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
- 5 -