Alan Michael Legas v. Carol Eulene L.Legas, a/k/a ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bumgardner
Argued by teleconference
ALAN MICHAEL LEGAS
MEMORANDUM OPINION * BY
v. Record No. 2683-00-2 JUDGE JERE M. H. WILLIS, JR.
JULY 17, 2001
CAROL EULENE LANGFORD LEGAS,
A/K/A CAROL FRANTZ
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Daniel R. Bouton, Judge
Robert B. Hill (Shelley K. Richardson; Hill,
Rainey & Eliades, on brief), for appellant.
Susan W. Allport (Rae H. Ely & Associates, on
brief), for appellee.
Alan Michael Legas (the father) contends that the trial
court erred (1) in awarding child support arrearages in the
amount of $22,217.43 with interest to Carol Eulene Langford
Legas (the mother) and (2) in holding him in contempt and
awarding attorney's fees to the mother as a result of that
finding. The mother seeks attorney's fees for this appeal. We
affirm the judgment of the trial court and decline to award
attorney's fees.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
The father and the mother were married on August 9, 1975
and subsequently separated. Their January 26, 1990 separation
and property settlement agreement (the Agreement) was ratified,
confirmed, and incorporated into their March 6, 1990 divorce
decree. Paragraph 19 of the Agreement provides as follows:
Each year on the first day of February,
there will be an annual adjustment in these
[child support] payments by the percentage
change in [the father's] net income, as
defined in an exhibit attached and made part
hereof.
The attached exhibit states:
Net income as utilized in Paragraph 19 of
the agreement shall be defined to mean the
gross income of [the father] from all
sources less federal taxes, state taxes,
FICA, union dues, payments mandated by union
requirements, premiums paid by [the father]
as required under the agreement for medical
insurance, life insurance, dental insurance
and loss of license insurance. . . .
In 1991, the mother moved the trial court to determine the
amount of child support owed her under the Agreement and to
require the father to provide certain financial information. On
September 12, 1991, the trial court, by agreement of the
parties, amended the exhibit to the Agreement defining net
income. It "deleted and redefined" the term net income as
follows:
Net income as utilized in Paragraph 19 of
the Agreement shall be defined to mean the
gross income of [the father] from all
sources less federal taxes, state taxes,
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FICA, union dues, payments mandated by union
requirements, premiums paid by [the father]
as required under the agreement for medical
insurance, life insurance, dental insurance
and loss of license insurance. The amount
that [the father] withholds for Federal and
State purposes shall be reviewed each year.
If the percentage of income withheld for
federal tax purposes exceeds 22.57%, the
amount of income in excess of the amount
realized by multiplying 22.57% times the
gross income shall be added back to the net
income. If the percentage of income
withheld for state tax purposes exceeds
5.1%, the amount of income in excess of the
amount realized by multiplying 5.1% times
the gross income shall be added back to the
net income. By utilizing the percentage of
withholding instead of analyzing the tax
refund, the parties no longer need to
determine what percentage of any refund is
apportioned to [the father] and what
percentage is apportioned to [the mother].
Each party reserves the right to have
support recalculated by the Court in the
event of a substantial change in
circumstances involving a change of the tax
rate.
The September 12, 1991 order further provides in Paragraph 3 as
follows:
On or before February 1 of each year, [the
father] shall provide to [the mother] a copy
of his year end pay stub and any W-2 forms
and 1099 forms or, in the absence of such
forms, other similar forms showing income
from any and all sources. [The father]
agrees also to provide a copy of the union
contract and any other similar documents to
[the mother] for the purpose of showing what
payments are deleted from [the father's]
gross income as a result of union
requirements. When [the father] has
calculated the amount that he believes that
he owes for child support, he shall so
notify [the mother] and provide an
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explanation as to the various deductions
from the gross income.
In 1993, the mother moved for an order determining the
proper child support for the years 1992 and 1993, requesting
payment of arrears, and requesting that the father reimburse her
for medical and dental expenses that he had deducted from his
child support payments.
By order entered September 13, 1993, the trial court held:
Whereupon the Court did ADJUDGE, ORDER and
DECREE that the gross income of the [the
father] from his employment as an airline
pilot shall be that amount shown on his W-2
form in Block 10 (wages, tips, other); that
the [the father] is not entitled to subtract
the medical insurance deductible in
determining the appropriate child support
calculation; that the [the father] is not
entitled to subtract disability insurance
premiums in the calculation of his child
support calculation; that, in the absence of
the portion of health insurance premium
allocable to cover the children of the
parties, the [the father] is not entitled to
subtract the health insurance from the child
support calculation; that the [the father]
is required to add back certain federal and
state taxes as set forth in the formula in
Order #2 of September 12, 1991; that the
amount owed for child support for each child
beginning February 1992 was $1,093.45 and
that the amount owed for child support for
each child beginning February 1993 was
$1,062.83.
Subsequent to this 1993 order, the father provided the
mother, for each tax year commencing in January 1994, his year
end pay stub with handwritten calculations for child support.
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On March 1, 2000, the mother moved the trial court to
compel the father's compliance with the prior orders of the
court regarding payment of orthodontic and optical bills, joint
debts and child support. The mother argued that the father owed
her child support arrears from January 1995 through the date of
the hearing on June 5, 2000, because he had failed to include in
his income his voluntary contributions into a 401(k) plan and
because he deducted union dues and "loss of license" insurance
premiums in violation of the court orders. The mother further
sought an order holding the father in contempt for his
violations of the earlier court orders and an order awarding her
attorney's fees, court costs and travel costs.
The father sought an order setting the child support amount
per the guidelines set forth in Code §§ 20-108 and 20-112.
By letter opinion dated August 11, 2000, the trial court
held that the father's voluntary contributions to a 401(k) plan
should have been included in his gross income for the
calculation of his child support obligation and awarded arrears
to the mother. The court refused to allow the father to deduct
from his gross income his union dues and "loss of license"
insurance premiums because he had failed to provide proper
documentation thereof. The court awarded the mother one-half of
the orthodontic and optical expenses. It held the father in
civil contempt for failing to pay child support and for failing
to provide the documentation required by the court, but provided
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that he could purge the contempt by payment in full within six
months of the entry of the order. The court further determined
that, commencing on June 1, 2000, child support would be
calculated pursuant to the statutory guidelines rather than by
the formula previously established by the parties. Finally, the
court awarded attorney's fees to the mother and denied the
father's application for attorney's fees. An order setting
forth these rulings was entered on October 17, 2000.
II. CHILD SUPPORT ARREARAGES
The father contends that the trial court erred in holding
that its 1993 order was ambiguous and in finding that he was in
child support arrears in the amount of $22,217.43 plus interest.
He argues that the trial court erred in holding that he should
have included his 401(k) contributions as part of his gross
income for purposes of applying the parties' child support
formula. He also argues that the trial court erred in refusing
to allow him to deduct from his gross income his union dues and
"loss of license" insurance premiums. We disagree with both
contentions.
A. THE FATHER'S VOLUNTARY CONTRIBUTIONS OF INCOME
TO A 401(k) ACCOUNT
At issue is the trial court's holding that the 1993 order
was ambiguous regarding how the term "gross income" should be
interpreted and applied to the claimed arrearages. "[A] court
may speak only through its written orders." Clephas v. Clephas,
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1 Va. App. 209, 211, 336 S.E.2d 897, 899 (1985). When a court
reviews ambiguous provisions in an order or decree, the rules of
construction require that primary consideration "be given to an
interpretation which would support the facts and law of the case
in order to avoid a result that will do violence to either."
Parrillo v. Parrillo, 1 Va. App. 226, 230, 336 S.E.2d 23, 25
(1985) (citing 46 Am. Jur. 2d Judgments §§ 72-76 (1969); 11A
Michie's Jurisprudence Judgments and Decrees § 5 (1978)).
Moreover, such an interpretation is a question of law, to be
construed like other written instruments, and read in connection
with the entire record. See 46 Am. Jur. 2d Judgments §§ 93-97
(1994).
The 1993 order arose from a dispute over the father's child
support calculations for the years 1991, 1992, and 1993. The
mother claimed a discrepancy between the amount of income shown
on the father's year end pay stubs and the amount shown on his
W-2 forms. The father testified that the figure set forth in
Block 10 on his W-2 form represented his full income. Because
the W-2 forms contained the most accurate information regarding
the father's salary during the period under consideration, the
trial court ordered that the gross income of the father "shall
be that amount shown on his W-2 form in Block 10 (wages, tips,
other); . . . ."
The father contends on appeal that the 1993 order is not
ambiguous and that its "clear language" should control. He
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argues that the language "shall be" expressed an ongoing
standard of determination. He argues that because Block 10 on
his W-2 form never included his 401(k) contributions, which were
then listed in Block 17, Line D, he was not required in
subsequent years to include his 401(k) contributions in his
income for child support calculations. We are not persuaded by
this argument.
The trial court never eliminated or redefined either the
term "net income" or the term "gross income" from the Agreement
or the 1991 order for the purposes of the child support
calculation. Rather, in making reference to the father's W-2
forms, the trial court in 1993 was merely describing the manner
in which it had determined the father's earnings in connection
with the years 1991, 1992, and 1993, which the rulings set forth
in that order addressed. The language "shall be" expressed not
a rule of future determination, but an imperative. The court
was faced with a situation whereby the father had constantly
failed to supply the mother with accurate information regarding
his total, earned income as a pilot. In trying to determine the
father's income for the years 1991, 1992, and 1993, the court
used the best information available to it, the father's W-2
forms. Nowhere does the 1993 order state that the parties were
to use Block 10 of the father's W-2 form as the starting point
for his child support calculations in any subsequent years.
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Therefore, we agree with the trial court below in holding that
the 1993 order was ambiguous as to this issue.
Recognizing the ambiguity in the 1993 order, we find the
trial court's inclusion of the father's exempted 401(k)
contribution in calculating his gross income to be consistent
with the history of the case, the previous orders, and the
original agreement of the parties. 1
Over the past ten years, the parties have waged an ongoing
battle over the application of the child support formula agreed
to by both parties and incorporated into the final divorce
decree. This struggle has been hampered by the father's
repeated failure to provide the mother and the trial court
accurate information regarding his total earned income as a
pilot. Every document and every court order has contemplated
full disclosure of this.
The parties' original agreement and the 1991 court order
reflect that the parties intended the starting point for the
father's child support calculation to "be defined to mean the
gross income of [the father] from all sources." (Emphasis
1
Although Frazer v. Frazer, 23 Va. App. 358, 477 S.E.2d 290(1996), addressed only the question whether 401(k) contributions
should be considered income under the statutory definition that
applies to support calculations under the guidelines, the
rationale of the decision is instructive. In Frazer, we held
that 401(k) contributions represent actual earnings that are
voluntarily diverted and set aside for the future benefit of the
employee and, thus, should be included in the employee's gross
income for calculation of spousal and child support. See id. at
376-79, 477 S.E.2d at 299-300.
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added). Clearly, for the purposes of child support
calculations, the father was to include "all" of his income from
his employment, including any voluntary contributions to a
retirement account. The father should not be allowed to
voluntarily divert funds to exclude that income from
consideration in determining his child support obligation.
B. THE FATHER'S DEDUCTION OF UNION DUES
The trial court did not err in refusing the father's
deduction of his union dues from gross income.
The 1991 order provided that "[the father] agrees also to
provide a copy of the union contract and any other similar
documents to [the mother] for the purpose of showing what
payments are deleted from [the father's] gross income as a
result of union requirements." We agree with the trial court
that "the evidence required to establish any deductions to which
[the father] would arguably be entitled is not sufficient." The
father offered only his handwritten calculations and no evidence
corroborating his testimony about the figures that he provided.
He conceded that his calculations were incorrect in that the
amount of income shown did not always match his W-2 forms.
Therefore, the trial court did not err in rejecting his
deduction of his union dues from gross income.
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C. THE FATHER'S DEDUCTION FOR
"LOSS OF LICENSE" INSURANCE PREMIUMS
The trial court did not err in refusing the father's
deduction of his "loss of license" insurance premiums from gross
income.
The 1991 order permitted the deduction of "loss of license"
insurance. The 1993 order provided that the father "is not
entitled to subtract disability insurance premiums in the
calculation of his child support calculation." The father
testified that the "loss of license" insurance premiums included
disability insurance. He made no attempt to deduct only the
portion of his "loss of license" premium that is not
attributable to disability insurance. He offered no evidence to
substantiate his handwritten calculations, and never provided
the "explanations as to the various deductions" required by the
1991 order. The trial court did not err in rejecting the
father's deduction of his "loss of license" insurance premiums
in calculating his child support obligation.
III. CONTEMPT
The trial court did not err in holding the father in civil
contempt for failing to pay child support as ordered and for
failing to provide sufficient documentation required by the
court. "A trial court 'has the authority to hold [an] offending
party in contempt for acting in bad faith or for willful
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disobedience of its order.'" Alexander v. Alexander, 12 Va.
App. 691, 696, 406 S.E.2d 666, 669 (1991) (citation omitted).
Because the mother presented evidence from which the trial
court could determine that the father had not paid the child
support and not provided the documentation required by the
Agreement and subsequent court orders, we cannot say the trial
court erred in finding the father guilty of civil contempt.
Furthermore, it did not abuse its discretion by requiring the
father to pay the arrearage immediately in order to purge the
contempt. This order was remedial in nature. See Rainey v.
City of Norfolk, 14 Va. App. 968, 974, 421 S.E.2d 210, 214
(1992).
IV. ATTORNEY'S FEES
We also conclude that the trial court did not err in
granting the mother's request for attorney's fees. "An award of
attorney fees is discretionary with the court after considering
the circumstances and equities of the entire case and is
reviewable only for an abuse of discretion." Gamer v. Gamer, 16
Va. App. 335, 346, 429 S.E.2d 618, 626 (1993). "The key to a
proper award of counsel fees is reasonableness under all of the
circumstances revealed by the record." Ellington v. Ellington,
8 Va. App. 48, 58, 378 S.E.2d 626, 631 (1989).
On three different occasions, the mother was forced to seek
assistance from the trial court to compel the father to comply
with its previous orders and to provide sufficient documentation
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of his income. Based on this evidence, we cannot say that the
trial court abused its discretion in awarding the mother
attorney's fees. However, after considering the circumstances
of this case, we deny the mother's request for attorney's fees
and costs related to this appeal.
For these reasons, we affirm.
Affirmed.
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