Samuel Gifford Murphy v. Deborah Hutchins Murphy ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Fitzpatrick and
Senior Judge Hodges
Argued at Alexandria, Virginia
SAMUEL GIFFORD MURPHY
v. Record No. 0071-95-4 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
DEBORAH HUTCHINS MURPHY OCTOBER 17, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
Keenan R. Goldsby (Richard M. Wexell; Richard
M. Wexel & Associates, on brief), for
appellant.
Peter M. Fitzner (Deborah Hutchins Murphy,
pro se, on brief), for appellee.
The judgment of the trial court is affirmed because the
trial court did not abuse its discretion in refusing to allow
appellant to amend his bill of complaint.
Here, appellant did not raise the issue of child support in
his answer or at the depositions in lieu of trial, which he
failed to attend. He joined in appellee's request that the
agreement be incorporated into the decree. During the
depositions the settlement agreement was admitted into evidence.
After he had been notified the appellee was moving the court for
a decree in accordance with the pleadings and proof contained in
the deposition, appellant changed his lawyer and moved the court
for leave to amend his pleadings in order to put the amount of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
child support at issue.
The right to file amended pleadings rests in the sound
discretion of the trial judge, and although it shall be liberally
granted in furtherance of the ends of justice, it is not an abuse
of discretion to deny an amendment where the ends of justice do
not require it. See Roberts v. Roberts, 223 Va. 736, 292 S.E.2d
370 (1982). The appellant requested permission to amend his
answer because, he alleges, the agreed amount of support was no
longer reasonable due to a job change. However, the appellant
acknowledged that he had changed jobs before he filed his
original answer. The trial judge found that in such
circumstances the ends of justice would not be served by granting
the appellant's request.
Appellant contends that "if the amount of child support is
in dispute, in spite of a prior agreement, the trial court must
address `the issue of determining the child support.' Code
§ 20-108.1." Alexander v. Alexander, 12 Va. App. 691, 695, 406
S.E.2d 666, 668 (1991). That is true. That principle required
the reversal in Watson v. Watson, 17 Va. App. 249, 436 S.E.2d 193(1993), where there was a child support agreement and the bill of
complaint requested that the settlement agreement providing for
child support be incorporated into the final decree. However, in
her answer, the wife did not join in the request, but instead
requested temporary and permanent child support. We found that
the wife had raised the issue of child support, and remanded the
case for a redetermination of child support that took both the
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agreement and the guidelines into consideration. Watson, 17 Va.
App. at 251, 436 S.E.2d at 195. However, the Watson facts are
inapposite to the facts here. In Watson the amount of child
support was placed in dispute by the pleadings in the case, and
it was the wife's contention throughout the proceedings that the
trial judge had to determine the presumptive amount of child
support notwithstanding a settlement agreement. Here, appellant
did not seek to put the amount in issue until after all the
evidence was in, and the court was prepared to enter a decree
based upon the pleadings and depositions already filed in the
case. What was put in issue by appellant's motion to amend was
whether he could amend to put child support in issue. The record
does not support a finding that the trial court abused its
discretion by denying the motion to amend. Therefore, the
question of child support was not put in issue.
Accordingly, there is no reversible error.
Affirmed.
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