Murray L. Steinberg v. Katherine T. Steinberg, etc ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Humphreys
MURRAY L. STEINBERG
v. Record No. 0525-00-2
KATHERINE T. STEINBERG, N/K/A
KATHERINE T. SHUMAKER MEMORANDUM OPINION *
PER CURIAM
MURRAY L. STEINBERG AUGUST 8, 2000
v. Record No. 0602-00-2
KATHERINE T. STEINBERG, N/K/A
KATHERINE T. SHUMAKER
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
(Murray L. Steinberg, pro se, on briefs).
(Murray J. Janus; Bremner, Janus, Cook &
Marcus, on brief), for appellee.
Murray L. Steinberg appeals the decision of the circuit court
denying his motions to change venue and for modification of
custody, visitation and child support. Steinberg raises twelve
issues on appeal, which we address seriatim below. Upon reviewing
the record and briefs of the parties, we conclude that these
appeals are 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.
Background
These consolidated cases are the latest in an extensive
series of appeals filed by Steinberg arising from his divorce from
Katherine T. Shumaker and the resulting custody, visitation and
support issues. 1 The current dispute arose when Steinberg filed a
motion to reinstate and a motion seeking a change of venue on
April 14, 1999. In an opinion letter, the trial court indicated
that it would deny the motion to change venue. The trial court
entered an order incorporating its opinion letter on March 13,
2000. On May 10, 1999, Steinberg filed a second motion to
reinstate and a motion for a modification of support, custody and
visitation. By order entered August 2, 1999, the trial court
denied the motion for modification. On the same day, Steinberg
filed a motion to vacate, arguing that there was no compelling
state interest and that the court lacked subject matter
jurisdiction. Steinberg also filed a subpoena duces tecum,
seeking records related to the legal fees the trial court ordered
him to pay Shumaker, a motion seeking verification of child care
1
Steinberg v. Steinberg, Nos. 1839-91-2, 2036-91-2,
2172-91-2 (Va. Ct. App. Feb. 9, 1993); Steinberg v. Steinberg,
Nos. 0534-92-2, 1678-92-2 (Va. Ct. App. June 15, 1993);
Steinberg v. Steinberg, No. 0971-92-2 (Va. Ct. App. Dec. 7,
1993); Steinberg v. Steinberg, 21 Va. App. 42, 461 S.E.2d 421(1995) (Record No. 2111-93-2); Steinberg v. Steinberg, No.
0874-95-2 (Va. Ct. App. Mar. 21, 1996); Steinberg v. Steinberg,
No. 1064-95-2 (Va. Ct. App. Jan. 30, 1996); Steinberg v.
Steinberg, No. 2315-95-2 (Va. Ct. App. June 18, 1996); and
Steinberg v. Steinberg, No. 2557-96-2 (Va. Ct. App. July 15,
1997).
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costs, and a motion for mediation. The trial court granted
Shumaker's motion to quash the subpoena regarding her attorney's
records, granted her motion to quash a subsequent subpoena duces
tecum directed to Shumaker's employer, and denied Steinberg's
motions to dismiss for lack of jurisdiction, to reconsider, and to
set aside all previous orders for lack of compelling state
interest. On March 13, 2000, the trial court entered an
additional order denying Steinberg's motions to vacate all
previous orders for lack of subject matter jurisdiction, lack of
compelling state interest and alleged fraud on the court by
Shumaker and her counsel.
By notice filed January 6, 2000, Shumaker indicated she would
seek to have Steinberg found in contempt for his failure to pay
$405 as his share of the child's 1997 orthodontist expenses.
The trial court held an ore tenus hearing on January 18,
2000, at which both parties presented evidence. The trial court
subsequently denied Steinberg's motion to modify visitation,
custody and support by order entered February 8, 2000. While
Steinberg filed a motion seeking a stay of execution on the ground
that he had been found to be indigent in the past, the trial court
denied the requested stay of execution.2 Steinberg appealed.
2
On July 13, 2000, Steinberg filed with this Court a motion
seeking a stay of execution of the trial court's order requiring
him to pay attorney's fees and costs. We deny that motion.
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Analysis
I. Lack of a Hearing
Steinberg contends that the trial court erred by failing to
hold an evidentiary hearing prior to ruling on several of his
motions, including the motions to change venue and challenging
subject matter jurisdiction. We find no error.
Whether to receive evidence is a matter left to the
discretion of the trial court, whose decision will not be reversed
in the absence of an abuse of that discretion. The motions were
decided by a judge who was familiar with the parties and the
issues, and who had conducted numerous hearings throughout the
extended litigation. Steinberg's allegations of fraud and lack of
subject matter jurisdiction were repetitious and duplicative of
previous motions heard and rejected by the trial court. His
challenge to the lack of compelling state interest was based upon
questions of law, not fact. His motion to change venue was based
upon the single factual allegation of the parties' relocation. In
light of Shumaker's objection to the motion, and the court's
extensive experience with the parties, we cannot say that the
trial court's decision to deny that motion without receiving
evidence was an abuse of discretion. We therefore find no abuse
of discretion in the trial court's decision not to hold
evidentiary hearings on these motions.
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II. Motion to Change Venue
Steinberg filed a motion to change venue based upon the fact
that the parties and the child now resided in Hanover County.
Steinberg alleged that it was therefore in the child's best
interest for this matter to be transferred to Hanover County. The
trial court denied this motion on the ground that both parties did
not agree to the change of venue. We find no error.
The parties have a lengthy history of litigation in the
courts of Henrico County. While both parents now reside in
Hanover County, that fact alone did not require the trial court to
grant Steinberg's motion to change venue. "Whether to grant such
a motion is within the discretion of the trial court, and the
trial court's denial of the motion will not be reversed absent an
abuse of that discretion." Virginia Elec. & Power Co. v. Dungee,
258 Va. 235, 245, 520 S.E.2d 164, 170 (1999). Nothing in the
record supports Steinberg's bare contention that a transfer of
venue was in the child's best interests. We find no abuse of
discretion in the trial court's decision to retain the matter in
the Circuit Court of Henrico County.
III. Ex parte Communication
Steinberg further contends that the trial judge engaged in an
improper ex parte communication with Shumaker. In his opinion
letter denying Steinberg's motion to change venue, the trial judge
stated:
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I have received your motion and order
with regard to a change of venue. It is my
practice not to order a transfer unless both
parties agree.
I understand that Ms. Katherine
Steinberg objects to the change. Therefore
I will not order a change in venue.
Steinberg presented no evidence that the trial judge had any
direct communication with Shumaker or her counsel. Moreover,
the bar against ex parte communication "arises only when 'an ex
parte communication relates to some aspect of the [trial].'"
Ellis v. Commonwealth, 227 Va. 419, 423, 317 S.E.2d 479, 481
(1984) (holding that the trial judge did not participate in an
improper ex parte communication when he interviewed a juror in
chambers without notifying the defendant). Here, assuming
arguendo that the record proved that the trial judge spoke with
Shumaker or her counsel, the challenged communication was at
most administrative in nature, relating solely to whether the
motion to change venue was opposed. Steinberg has failed to
demonstrate any improper ex parte communication between the
trial judge and Shumaker.
IV. Lack of Subject Matter Jurisdiction
The question of the trial court's jurisdiction to hear this
case has been raised and addressed before. See, e.g., Steinberg
v. Steinberg, No. 2557-96-2 (Va. Ct. App. July 15, 1997). We
therefore do not address this question further.
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V. Lack of Compelling State Interest
Steinberg contends "[n]o court has ever determined that the
state has a compelling interest in the instant case," and argues
that the trial court erred by acting without a compelling state
interest. This contention lacks merit. The parties were
properly before the circuit court, which had jurisdiction to
resolve issues of child support, custody and visitation. See,
e.g., Code § 20-107.2. The case cited by Steinberg, Williams v.
Williams, 256 Va. 19, 501 S.E.2d 417 (1998), which arose in the
context of grandparents seeking visitation against the wishes of
the parents, is inapposite to the facts in this case and
inapplicable to the analysis of any pending issues.
VI. Imputation of Income
As the party seeking to modify child support, Steinberg bore
the burden to prove that there had been a material change in
circumstances warranting a reduction in child support. "Once a
child support award has been entered, only a showing of a material
change in circumstances will justify modification of the support
award. The moving party has the burden of proving a material
change by a preponderance of the evidence." Crabtree v. Crabtree,
17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993). The trial court
imputed $30,000 in income to Steinberg in its 1993 order of
support. Because the trial court previously had ruled on the
question of imputation of income in the context of child support,
the burden to demonstrate a change in circumstances underlying the
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court's existing decision, including evidence that imputation of
income was no longer appropriate, fell to Steinberg.
Steinberg based his motion on a reduction in his income. He
denied that he had more than $1,000 in annual income in 1999,
although he admitted that he and his new wife moved into a new
home which she purchased for approximately $270,000; that they
regularly took the child on trips to Florida; that their vacations
and "educational, fun trips" with the child included trips to
Disney World, MGM, Epcot, Universal Studios, Mexico, San
Francisco, Los Angeles, Hollywood, New York City, Daytona Beach
and Alexander Springs; and that they took the child to baseball
games and amusement parks. The trial court did not err when it
required Steinberg to bear the burden of presenting evidence why
the trial court should no longer impute income to him.
VII. Failing to Recalculate Child Support
Steinberg contends that the trial court failed to consider
all current evidence when ruling on his motion to modify child
support. This contention is without merit. The inquiry into
the modification of child support focused on Steinberg's alleged
reduction in income, the sole ground on which he based his
motion. The trial court was not required to examine other
statutory factors that were not at issue. The burden of proof
remained on Steinberg as the party seeking to modify an existing
child support order. The trial court found that Steinberg
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failed to prove a material change in circumstances warranting a
modification, and its decision is supported by evidence.
VIII. Failing to Follow Statutory Requirements
Steinberg contends that the trial court failed to consider
all the statutory factors set out in Code § 20-124.3 when it
ruled that he failed to prove a material change in circumstances
warranted a change in custody. We disagree.
As the party seeking to modify the existing custody order,
Steinberg bore the burden to prove "'(1) whether there has been
a [material] change in circumstances since the most recent
custody award; and (2) whether a change in custody would be in
the best interests of the child.'" Wilson v. Wilson, 18 Va.
App. 193, 195, 442 S.E.2d 694, 696 (1994) (quoting Visikides v.
Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986)). "In matters
concerning custody and visitation, the welfare and best
interests of the child are the 'primary, paramount, and
controlling considerations.'" Kogon v. Ulerick, 12 Va. App.
595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). The
trial court is vested with broad discretion to make the
decisions necessary to safeguard and promote the child's best
interests, and its decision will not be set aside unless plainly
wrong or without evidence to support it. See Farley v. Farley,
9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990).
Steinberg bore the burden to present evidence to the trial
court demonstrating that a material change in circumstances
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warranted a change in custody and that the change was in the
child's best interests. The trial court's order specifically
states that it considered all the statutory factors. The trial
court found that the child continues to do well under the
current custody and visitation arrangement. Evidence supports
the trial court's decision. We find no error in the trial
court's decision to deny Steinberg's motion to change custody.
IX. Failing to Communicate the Basis of the Decision
Steinberg contends that the trial court failed to
communicate the basis of its decision denying his motion to
modify custody and visitation. This contention is not supported
by the record. The trial court expressed the basis for its
decision in its opinion letter to the parties dated January 24,
2000.
X. Discovery Violations
Steinberg contends that the trial court allowed Shumaker
access to irrelevant materials, including the costs and dates of
his trips with the child, but denied him access to information
relevant to his pending motions. Decisions relating to
discovery generally rest "within the trial court's discretion
and will be reversed only if the action taken was improvident
and affected substantial rights." Rakes v. Fulcher, 210 Va.
542, 546, 172 S.E.2d 751, 755 (1970). There must be
demonstrable prejudice for a reviewing court to find an abuse of
discretion. See id.- 10 -
As the party seeking a decrease in his child support
payment based upon reduced income, Steinberg placed his income,
assets, and other financial resources as an issue before the
court. We find no error in the trial court's order requiring
Steinberg to disclose information relating to certain
expenditures, housing, loans, and income.
Our review of the challenged discovery decisions by the
trial court demonstrates that the trial court granted Shumaker's
motions to quash Steinberg's requests for information that was
not relevant to his petition for a modification. Because
Steinberg's petition was based upon changes in his
circumstances, information concerning Shumaker's income and
expenses were not relevant.
The trial court denied Steinberg's motion to compel
production of records of Shumaker's counsel, including fee
arrangements with other clients. Steinberg sought the records
to support his repeated allegations of fraud by counsel.
"Typically, the attorney-client privilege does not extend to
billing records and expense reports." Chaudhry v. Gallerizzo,
174 F.3d 394, 402 (4th Cir. 1999). "'However, correspondence,
bills, ledgers, statements, and time records which also reveal
the motive of the client in seeking representation, litigation
strategy, or the specific nature of the services provided, such
as researching particular areas of law, fall within the
privilege.'" Id. (quoting Clarke v. American Commerce National
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Bank, 974 F.2d 127, 129 (9th Cir. 1992)). The trial court found
no evidence to support Steinberg's allegations of fraud in the
past. Evidence gathered at the January 18, 2000 hearing also
refuted Steinberg's claim that Shumaker and her counsel were
perpetrating a fraud. We therefore find no abuse of discretion
in the denial of this motion to compel.
Steinberg does not allege any prejudice resulted from the
trial court's denial of his interrogatories relating to
Shumaker's activities with the child or her propensity to
support his relationship. Steinberg obtained answers through
requests for admissions and cross-examination of Shumaker during
the hearing.
Therefore, in sum, we find no abuse of discretion on the
part of the trial court in its handling of the parties'
discovery.
XI. Ruling on Orthodontist Expenses and Failing to Rule on
Other Motions
Steinberg contends that the trial court erred when it
ordered him to pay $405 as his share of a 1997 orthodontic bill
because there was no motion attached to Shumaker's notice that
she would move for payment of the outstanding debt at the
scheduled hearing. Shumaker testified that she provided
Steinberg with a copy of the bill previously and that a copy was
sent to Steinberg with the notice. Steinberg had an ongoing
obligation to pay 36% of the cost of extraordinary medical and
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dental expenses. We find no error in the trial court's order
requiring Steinberg to pay an amount previously due and owing.
While Steinberg also lists a number of motions which he
claims were never ruled on, our review of the record
demonstrates that the trial court responded to all timely-filed
motions. Moreover, this contention is frivolous. Steinberg
argues that the trial court failed to respond to his Motion for
Modification of Child Support, apparently refusing to view the
trial court's order of February 8, 2000, denying "Petitioner's
Motion to reduce child support" as a dispositive ruling on his
motion. The trial court's failure, if any, to rule on any of
Steinberg's duplicate and repetitive filings seeking multiple
reconsiderations of the same issues, is not reversible error.
XII. 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.
See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985). "'Although evidence of time expended by counsel and the
charges made to the client is the preferred basis upon which a
trial judge can formulate a reasonable award, it is not the only
basis.'" Davis v. Davis, 8 Va. App. 12, 17, 377 S.E.2d 640, 643
(1989) (quoting McGinnis v. McGinnis, 1 Va. App. 272, 277, 338
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S.E.2d 159, 162 (1985)). While Steinberg contends that Shumaker
is responsible for this litigation, the record does not support
that contention. Moreover, evidence supports the amount of the
trial court's award. Therefore, we cannot say that the award was
unreasonable or that the trial judge abused his discretion in
making the award.
In addition, Shumaker moves this Court for attorney's fees
and costs related to these appeals. We grant the motion, and
remand the matter to the trial court with instructions to
determine and enter an appropriate order.
Accordingly, the decision of the circuit court is summarily
affirmed, and the matter is remanded to the trial court to enter
an award relating to appellate attorney's fees.
Affirmed and remanded.
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