Angelique Ranghelli v. Robert Ranghelli ( 2019 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, O’Brien and Senior Judge Haley
Argued at Fredericksburg, Virginia
UNPUBLISHED
ANGELIQUE RANGHELLI
MEMORANDUM OPINION* BY
v. Record No. 1766-18-4 JUDGE GLEN A. HUFF
MAY 7, 2019
ROBERT RANGHELLI
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
David S. Schell, Judge Designate
Cristina O. Duarte (Duarte Advocacy, LLC., on brief), for
appellant.
Maureen A. Kersey (Maureen A. Kersey, PLLC, on brief), for
appellee.
Angelique Ranghelli (“wife”) appeals the final divorce decree of the Circuit Court of
Prince William County awarding child support to Robert Ranghelli (“husband”). After
conducting a three-day ore tenus hearing on the parties’ divorce, the trial court granted the
divorce, awarded husband primary custody of the parties’ four children, and ordered the wife to
pay $1,528 in child support each month.
In two assignments of error, wife contends that the trial court erred by effectively
imputing income to her without first calculating the proper support amount under the guidelines.
She argues the trial court based its income determination on her average wages for the time she
worked over the course of two years but did not include in the average the significant periods of
unemployment. She argues that computation resulted in an award of child support that exceeds
the guideline amount without sufficient findings justifying the deviation. Because the trial court
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
based its child support calculation on the income wife earned between her most recent
unemployment and the trial—and did not impute income to her—this Court affirms.
I. BACKGROUND
“On appeal, [this Court] view[s] the evidence ‘in the light most favorable to the
prevailing party below and its evidence is afforded all reasonable inferences fairly deducible
therefrom.’” Milam v. Milam, 65 Va. App. 439, 447 (2015) (quoting Bristol Dep’t of Soc.
Servs. v. Welch, 64 Va. App. 34, 40 (2014)). So viewed the evidence is as follows:
The parties were married on December 29, 2008. At the time, wife was eighteen years
old, and husband was nineteen years old. The parties had four children over the course of the
marriage, and wife remained a homemaker throughout most of the marriage.
In March 2016, shortly before the parties separated, wife obtained her first job. She
worked at Safe Haven Security Services as a door-to-door salesperson for home security
systems. She did not receive an hourly wage or salary, but worked on a commission basis. She
worked from March 2016 to September 2016 and then became unemployed. She returned to
work at the same job from February 2017 through June 2017. She then went on unpaid
maternity leave to give birth to her fifth child. She again returned to work in November of 2017
and continued working through the time of the ore tenus hearing.
At the ore tenus hearing, held June 11–13, 2018,1 wife testified that her W-2 for 2017
showed she earned approximately $32,000.2 She also testified that she had earned approximately
$15,000 so far in 2018. Husband, on the other hand, offered wife’s pay stubs as exhibits. He
1
Although the ore tenus hearing took three days, the majority of the hearing focused on
evidence relating to the issues of custody or equitable distribution, which wife does not challenge
here. Therefore, only those facts relating to her claim the trial court erred in its child support
calculation are recounted.
2
She did not offer the W-2 as an exhibit.
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offered twenty-five pay stubs for her first period of employment, totaling $31,222.02; nineteen
for her second period of employment, totaling $19,504.87; and twenty-six for her current period
of employment, totaling $27,545.86. The pay stubs demonstrated her income varied from one
week to the next with a low of $50 in one week and a high of over $3,000 in another week.
Husband argued that the trial court should average her current period of employment,
demonstrated by the pay stubs from November of 2017 through May of 2018, to calculate wife’s
income for child support purposes.
The trial court agreed and awarded husband $1,528 per month in child support based on
finding wife’s income was $4,589 per month and crediting her $709 for the support of her fifth
child. Wife moved to reduce the support award, which the trial court ultimately denied.3
This appeal followed.
II. STANDARD OF REVIEW
“The determination of child support is a matter of discretion for the circuit court, and
therefore we will not disturb its judgment on appeal unless plainly wrong or unsupported by the
evidence.” Niblett v. Niblett, 65 Va. App. 616, 624 (2015) (quoting Oley v. Branch, 63 Va. App.
681, 699 (2014)). “Child support decisions . . . ‘typically involve fact-specific decisions best left
in the “sound discretion” of the trial court.’” Id. (quoting Brandau v. Brandau, 52 Va. App. 632,
641 (2008)).
3
The record does not include a transcript or a written statement in lieu of transcript for
the hearing on the motion to reduce the support award. Therefore, this Court does not consider
any arguments or evidence wife may have presented at that hearing. See Rule 5A:8(b)(4)(ii)
(“When the appellant fails to ensure that the record contains transcripts or a written statement of
facts necessary to permit resolution of appellate issues, any assignments of error affected by such
omission shall not be considered.”).
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III. ANALYSIS
Code § 20-108.2 controls the calculation of child support. It requires the trial court to
calculate—based on each party’s actual gross income, the number of children, and a “guidelines”
schedule in the statute—a presumptive amount for a child support award. Richardson v.
Richardson, 12 Va. App. 18, 21 (1991). The trial court may deviate from awarding the
presumptive award, but it must consider several statutory factors and make written findings in
support of its decision to deviate from the presumptive child support obligation. Tidwell v. Late,
67 Va. App. 668, 680 (2017) (“If a trial court determines that ‘the application of such guidelines
would be unjust or inappropriate,’ it must make written findings to state what the amount of
child support would have been pursuant to the guidelines and then explain ‘why the order varies
from the guidelines.’” (quoting Code § 20-108.1(B))). Under the statute, the trial court may
deviate from the presumptive amount, among other reasons, when it imputes income to a parent
because the parent is voluntarily unemployed or underemployed. Code § 20-108.1(B)(3);
Niblett, 65 Va. App. at 630. Where a parent’s income varies from year to year, the trial court
must calculate the presumptive child support award based on the parent’s “current income.”
Tidwell, 67 Va. App. at 681 (“We, therefore, conclude that the circuit court erred in averaging
father’s income [over four years], instead of using his current income, when it calculated child
support pursuant to the guidelines in Code § 20-108.2.”).
Wife contends that the trial court effectively imputed income to her because, as she
claims, it averaged her wages for the weeks she worked over three years, but did not account for
two substantial periods of unemployment during that time. She claims she never earned more
than $32,000 in a year. Thus, she claims that, when the trial court found her income to be $4,589
per month ($55,068 per year), it erred by not basing its presumptive child support calculation on
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her actual income. She claims that the trial court, in effect, deviated from the presumptive child
support calculation without the required written findings.
Wife’s contentions mischaracterize the trial court’s decision. The trial court’s calculation
of her earnings is based only upon her earnings, as demonstrated by twenty-six of her pay stubs,
from November of 2017 through mid-May of 2018. Wife’s latest unemployment before trial
ended in November of 2017.4 The total income reflected on her pay stubs for the period
following the latest unemployment is $27,545.86. Thus, her average weekly wage for that period
is $1,059.5 Annualized that represents $55,068.6 Converting to monthly income, this
demonstrates her income was exactly what the trial court found: $4,589 per month.7 If the trial
court had done what mother claims it did, the trial court would have calculated her income to be
$4,844 per month.8
Although the trial court did not—as wife had requested—base its calculation of the
presumptive child support award on her testimony regarding her income from the previous year,
it did precisely what is required by Tidwell: The trial court based its presumptive child support
award calculation on wife’s most recent actual income. It then awarded that amount as child
support. Its finding of wife’s income is supported by credible evidence in the record—her pay
stubs—and this Court will not disturb that finding on appeal. Patel v. Patel, 61 Va. App. 714,
4
Although the time covered actually reflected twenty-eight weeks, there was no evidence
explaining the missing two weeks, and the trial court was entitled to conclude that the pay stubs
for those weeks were simply missing and averaging the remaining weeks would accurately
calculate wife’s wages.
5
$27,545.86 divided by 26 equals $1,059.46.
6
$1,059 times 52 equals $55,068.
7
$55,068 divided by 12 equals $4,589.
8
Husband submitted 70 of wife’s pay stubs, totaling $78,272.76. If averaged, that
represents a weekly income of $1,118, monthly of $4,844.67, and annual of $58,136.
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727 (2013) (“The issue of [wife]’s income is a question of fact, and ‘the judgment of the [circuit]
court on questions of fact is entitled to great weight and will not be disturbed unless it is plainly
wrong or without evidence to support it.’” (quoting Smith v. Board of Supervisors, 201 Va. 87,
91 (1959))). Finally, because the trial court awarded the presumptive child support award, wife’s
argument that the trial court erred by deviating from the presumptive amount is completely
without merit, and this Court need not consider it further. Teleguz v. Commonwealth, 273 Va.
458, 471 (2007) (“Accordingly, these assignments of error do not address a ruling made by the
trial court and we do not consider them.”).
IV. APPELLATE ATTORNEYS’ FEES
In his brief, husband asks this Court to award him attorney fees and costs on appeal.
“The decision of whether to award attorney’s fees and costs incurred on appeal is discretionary.”
Friedman v. Smith, 68 Va. App. 529, 545 (2018); Rule 5A:30(b).
The rationale for the appellate court being the proper forum to
determine the propriety of an award of attorney’s fees for efforts
expended on appeal is clear. The appellate court has the
opportunity to view the record in its entirety and determine
whether the appeal is frivolous or whether other reasons exist for
requiring additional payment.
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695 (1996). Where, as here, a party’s argument is
“wholly meritless” or “an assertion not fairly debatable,” this Court has “no reluctance imposing
fees” on the other party. Brandau, 52 Va. App. at 642. Wife’s argument was not fairly debatable
as it did not address what the trial court actually did. Thus, after considering the arguments
presented and the equities of the circumstances, this Court concludes husband is entitled to
appellate attorneys’ fees and costs. Thus we remand the case to the trial court for the
determination of the appropriate appellate attorneys’ fees and costs award. See Bchara v.
Bchara, 38 Va. App. 302, 318 (2002) (remanding to the trial court to “determine the appropriate
amount to award”).
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V. CONCLUSION
Because the trial court awarded the correct statutory child support amount based on an
accurate calculation of wife’s income, this Court affirms the trial court’s child support award.
This Court remands for the trial court to award appropriate appellate attorneys’ fees and costs to
husband.
Affirmed and remanded.
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