Stephen A. Sharp v. Lynn C. (Sharp) Wilson ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Coleman and
Senior Judge Duff
Argued at Alexandria, Virginia
STEPHEN A. SHARP
MEMORANDUM OPINION *
v. Record No. 0469-97-4 BY JUDGE CHARLES H. DUFF
JUNE 2, 1998
LYNN C. (SHARP) WILSON
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
William G. Plummer, Judge Designate
Stephen A. Sharp, pro se.
No brief or argument for appellee.
Stephen A. Sharp (father) appeals the decision of the
circuit court awarding child support to Lynn C. (Sharp) Wilson
(mother). Father contends that the trial court (1) erred by
awarding child support retroactive to the date of the original
petition; (2) erred in determining the amount of child support
based upon assets and income unavailable to father; (3) abused
its discretion by failing to follow the statutory child support
guidelines; and (4) abused its discretion by awarding attorney's
fees to mother.
Retroactivity of Child Support Award
We find no error in the trial court's decision to order the
payment of child support as of the date of this Court's opinion
reversing the previous child support decree. Code § 20-108.1(B)
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
expressly provides: "Liability for support shall be determined
retroactively for the period measured from the date that the
proceeding was commenced by the filing of an action with the
court provided the complainant exercised due diligence in the
service of the respondent." While father contends that this
amendment cannot be applied in this case as it was not effective
until July 1, 1996, we find that the amendment was procedural,
not substantive. It did not create a new right, but merely
expanded the remedy. See Forbes v. Kenley, 227 Va. 55, 60, 314
S.E.2d 49, 52 (1984). Moreover, while equitable distribution is
determined under the version of the statute in effect at the time
the matter was filed, child support is determined based upon the
current circumstances and under the current statutes. "[T]he
statutory scheme established by Code §§ 20-107.2, -108, -108.1,
and -108.2, and related enactments, manifest a clear legislative
intent that the courts of this Commonwealth determine the issue
of child support with contemporaneity, in consideration of
prevailing circumstances and consistent with existing
guidelines." Cooke v. Cooke, 23 Va. App. 60, 65, 474 S.E.2d 159,
161 (1996). Father's argument that the court lacked authority to
order child support payable for the period during which the
petition was pending is without merit.
Inclusion of Father's Assets in Support Determination
In the previous appeal, we found that the trial court erred
"in failing to consider [father's] 'financial resources' as
-2-
required by Code § 20-108.1(B)(11), as well as his actual income"
when determining the amount of child support under Code
§ 20-108.2. L.C.S. v. S.A.S., 19 Va. App. 709, 718, 453 S.E.2d
580, 585 (1995). The trial court failed to include annual
interest income from several large accounts owned by father. In
this appeal, father contends that the trial court erred by
attributing to him income from those assets because mother
attached them for possible satisfaction of a judgment in a
related civil tort action filed on behalf of his son.
Evidence of father's assets was produced at the July 1996
hearing, and incorporated as a whole without objection at the
January 30, 1997 hearing. Father had two interest-bearing
accounts valued at approximately $178,000, which earned
approximately $416.94 per month in income.
While mother attached these accounts in connection with the
pending tort claim she filed on behalf of the parties' son, the
record before us is unclear as to the status of the attachment
proceeding. The record shows that in a hearing on July 2, 1996,
mother agreed that she would execute whatever documents necessary
to release the interest on the two accounts from the attachment
so that it could be applied to child support. At a subsequent
hearing on January 30, 1997 in a colloquy with the court, father
represented that such release documents had not been signed by
mother. The trial court observed that it had no authority to
order funds released in a law action over which it had no
-3-
jurisdiction. The court undoubtedly viewed the interest as
income to father and properly observed that the support payments
would become a judgment against father, to be satisfied from
whatever assets were available. The trial court further stated
that father's lack of access to such funds might well be a valid
defense to any future claim of contempt for non-payment of
support.
We view the court's reasoning to be that the attachment may
or may not be valid. It represented a mere claim against those
assets and, in the absence of a showing that the attachment has
been decided adverse to father, the interest income should be
imputable to him. On the record before us, we find no bar to the
consideration of such interest as income.
Determination of Child Support
Father contends that the trial court failed to consider the
statutory factors and failed to set out in sufficient detail the
grounds for its deviation from the guideline amount of child
support. We find both contentions without support in the record.
The trial court found father's monthly income to be $458, based
upon wages of $42 and interest income of $416. "Gross income" as
defined in Code § 20-108.2
shall mean all income from all sources, and
shall include, but not be limited to, income
from salaries, wages, commissions, royalties,
bonuses, dividends, severance pay, pensions,
interest, trust income, annuities, capital
gains, social security benefits except as
listed below, workers' compensation benefits,
unemployment insurance benefits, disability
insurance benefits, veterans' benefits,
-4-
spousal support, rental income, gifts, prizes
or awards.
Code § 20-108.2(C) (emphasis added). The trial court properly
included father's interest income from the two interest-bearing
accounts in its calculation of father's gross income.
Furthermore, in compliance with the statute, the trial court
first calculated the amount of child support presumed to be
correct under the guidelines. Code §§ 20-108.1(B), 20-108.2(A),
(B). Then, in writing, the trial court found that a "deviation
from the guidelines is appropriate in light of the demonstrated
needs of the child and the inadequacy of the presumptive amount
to meet those needs." The court set the amount of monthly child
support at $375. We find no indication that the trial court
failed to follow the statutory requirements, failed to consider
the statutory factors, or abused its discretion in determining
the amount of the deviation. See Richardson v. Richardson, 12
Va. App. 18, 21, 401 S.E.2d 894, 896 (1991).
We find no merit in father's contention that the court's
limits on his discovery requests deprived him of a fair hearing
and due process of law. Mother introduced evidence of her
current income and expenses. Father, who was a practicing
attorney prior to his incarceration, cross-examined her on those
expenses. The trial court considered father's arguments that
mother's expenses were inflated, but noted, as conceded by
father, that mother's income remained insufficient to cover the
expenses for her and the parties' child. We find no evidence
-5-
that father was deprived due process of law.
-6-
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). Mother submitted evidence that she
incurred an additional $2,000 in attorney's fees. Contrary to
father's claim, we find no indication that these expenses were
the result of counsel's negligence or wastefulness. Father had
assets, including escrowed funds from the sale of the parties'
real estate, with which to satisfy the payment. We cannot say
that the award was unreasonable or that the trial judge abused
his discretion in making the award.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
-7-