Michael A. Oley v. Lisa S. Branch , 63 Va. App. 681 ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Alston and Decker
Argued at Richmond, Virginia
PUBLISHED
MICHAEL A. OLEY
OPINION BY
v. Record No. 1857-13-2 JUDGE ROBERT J. HUMPHREYS
SEPTEMBER 9, 2014
LISA S. BRANCH
FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY
Timothy K. Sanner, Judge
Michael Oley, pro se.
No brief or argument for appellee.
Michael A. Oley (“Oley,” “father,” or “plaintiff”) appeals a child support order entered
by the Goochland County Circuit Court (the “circuit court”) on August 27, 2013 addressing Lisa
S. Branch’s (“Branch,” “mother,” or “defendant”) monthly child support obligations. He asserts
seven assignments of error in support of his appeal. His first, second, and third assignments of
error all allege that the circuit court erred as a matter of law in determining that Branch’s
personal injury settlement annuity, Pell Grant, and “free house” did not constitute income for the
purpose of calculating child support. Oley’s fourth assignment of error is that the circuit court
erred as a matter of law in refusing to grant him credit for childcare expenses. His fifth and sixth
assignments of error are that the circuit court abused its discretion in declining to award him
child support for the children’s private school tuition and in declining to award him child support
arrearages. Finally, in his seventh assignment of error, Oley asserts that he was denied due
process because he did not receive a fair hearing in the circuit court.
Each of Oley’s arguments are addressed in turn below. For the reasons that follow, the
judgment of the circuit court is affirmed in part, and reversed and remanded in part.
I. BACKGROUND
Pursuant to Oley’s and Branch’s custody agreement, Oley is the custodial parent of their
three minor children—ages nine, eleven, and fourteen. Oley and Branch have a fourth child who
turned eighteen several months before the circuit court’s August 27, 2013 child support order
that is the focus of this dispute. The issues before this Court relate solely to the circuit court’s
decisions regarding Branch’s child support obligations, and therefore the facts below are relevant
only to those disputes.
A. The Parties’ Gross Monthly Incomes and Child Support Obligations
Branch was unemployed and enrolled in school to become a dental assistant at the time of
the child support hearing. The circuit court found that the evidence allowed it to impute income
to Branch based on her most recent employment. It concluded that Branch was “capable of
earning at least the rate of $8.50 an hour based on her [former] employment at Chick-fil-A,”—
resulting in a monthly income of $1,462. Consequently, the circuit court fixed Branch’s gross
monthly income at $1,462.
Oley argued that Branch had other sources of “income” that the circuit court was required
to consider when calculating her gross income pursuant to the statutory guidelines. Branch
receives annuity payments stemming from a personal injury settlement from a 1987 car accident
she was in when she was sixteen years old. She was awarded lifetime monthly payments of
$1,000 as well as four $100,000 lump sum payments that were made in 1997, 2002, 2007, and
2012. The circuit court found that Branch’s personal injury settlement annuity was excluded
from being considered part of her gross income. Relying on this Court’s decision in Whitaker v.
Colbert, 18 Va. App. 202, 442 S.E.2d 429 (1994), the circuit court reasoned that because the
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settlement itself was not apportioned as to loss of income or lost wages, an annuity stemming
from that settlement was not intended to be included in the statutory definition of gross income.
Branch also received a $5,500 Federal Pell Grant (“Pell Grant”) to go back to school.
Oley argued that the circuit court should include her Pell Grant as well as $1,200 in “free
housing”—the cost of the rent she paid before moving in with her mother—because it is a “gift”
she receives by living with her mother free-of-charge. Without stating any reasons for doing so,
the circuit court did not include either item in its computation of Branch’s gross income.
With respect to Oley’s monthly income, Oley owns a startup Internet business that he
runs from his home. Prior to that, he owned a roofing and construction company that he
“shuttered” in 2009 due to changes in the economic climate. The circuit court noted that Oley’s
bank account appeared to have large sums of money and he had recently purchased a $60,000
recreational vehicle using sums from those accounts. Oley attributed the money in his accounts
to his past earnings and the proceeds from the sale of his home. The circuit court noted that it
found Oley’s “testimony regarding his income to be very suspicious.” However, despite its
reservations, the circuit court concluded that “[i]t appears that the only evidence that we really
have is that [Oley] made $500, essentially, over the first four months of this year.” The circuit
court fixed Oley’s gross monthly income at $125.
The circuit court concluded that pursuant to the statutory schedule the presumptive
support Branch should pay Oley each month for their three minor children was $1,711.20.1
However, the circuit court found that a deviation from the guidelines was warranted because
“applying the guidelines amounts would work at a substantial inequity in this case.” Because
1
The $1,711.20 presumptive support amount was calculated according to the schedule
contained in Code § 20-108.2(B) by considering the fact that the parties had three children,
Branch’s income was $1,462, Oley’s income was $125, and Oley was paying $1,313 per month
for the children’s health insurance.
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Branch was only capable of earning $1,462 per month, the guideline amount of $1,711.20 would
require “her to pay something that she doesn’t have.” In considering a deviation from the
guidelines, the circuit court additionally noted that “the evidence establishes that the father
appears to have plenty of money to meet the needs of his children.”
Based on its finding that a deviation from the guidelines was appropriate, the circuit court
ordered Branch to pay Oley $453.75 per month from May 1, 2011 until March 1, 2013 in child
support for their four children—ending the date of their fourth child’s eighteenth birthday. After
March 1, 2013, the circuit court ordered Branch to pay Oley $400 a month in child support for
their remaining three minor children.
B. Childcare Expenses
Oley runs his startup Internet company mainly from his home, but occasionally he works
from a “virtual office” in Innsbrook. The three minor children attend school every weekday
from 8:15 a.m. until 3:10 p.m. Oley testified that he requires childcare from 8:30 a.m. to
5:00 p.m. His current nanny works those hours, and sometimes longer, for $400 per week.
According to Oley, the nanny’s responsibilities included “cooking, cleaning, laundry, [and] a
multifaceted amount of things.” The children are home only approximately two hours out of the
nanny’s 8:30 a.m. to 5:00 p.m. workday.
The circuit court found that the evidence demonstrated that the nanny’s presence was
more akin to “taking a role of a mother” rather than providing childcare that “simply allow[s]
[Oley] to work.” Noting that it found Oley’s testimony “not particular[ly] credible,” the circuit
court concluded that the evidence did not demonstrate that the nanny’s responsibilities had
“anything to do with work-related day care.” Therefore, the circuit court denied Oley’s request
for childcare support because there was “insufficient evidence to find that [he] has legitimate
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work related child care expenses to be considered in accordance with the guidelines.” (Emphasis
added).
C. Private School Tuition
Oley’s and Branch’s three minor children currently attend a private school named Salem
Christian School. Their combined yearly tuitions total $15,000. The children have not always
attended Salem Christian—they were home schooled for “a couple of years” and attended public
school for “a couple of years.” The children re-entered Salem Christian after a period of home
schooling. The parties’ custody agreement was only that the children would not be home
schooled; however, the agreement did not specifically mandate their attendance at Salem
Christian. Branch does not object to the children attending Salem Christian.
The circuit court denied Oley’s motion to require Branch to pay for the children’s private
school tuition because it found that Oley’s evidence failed to establish that “there is a need for
the children to attend private school,” “that the funds and needs otherwise cannot be met in
public school,” and “that the mother has the ability to pay for it.”
II. ANALYSIS
A. “Gross Income” under Code § 20-108.2(C)
Statutory child support guidelines were designed “to assure that both the child’s needs
and the parent’s ability to pay are considered in determining the amount of support awards.”
Richardson v. Richardson, 12 Va. App. 18, 20, 401 S.E.2d 894, 895 (1991). Code § 20-108.2(A)
establishes a rebuttable presumption that an application of the schedule contained in the statute
results in the correct amount of child support to be awarded under the circumstances. Only after
determining the presumptive amount of support according to the schedule, may the circuit court
adjust the support amount based on the factors found in Code § 20-108.1. Howe v. Howe, 30
Va. App. 207, 214, 516 S.E.2d 240, 244 (1999). Any “[d]eviations from the presumptive
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support obligation must be supported by written findings which state why the application of the
guidelines in the particular case would be unjust or inappropriate.” Id.
Thus, “the starting point for a trial court in determining the monthly child support
obligation of a party is the amount as computed by the schedule found in Code § 20-108.2(B).”
Richardson, 12 Va. App. at 21, 401 S.E.2d at 896. This amount “varies according to the
combined gross income of the parties and the number of children involved.” Id. Code
§ 20-108.2(C) defines “gross income” as:
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, spousal
support, rental income, gifts, prizes or awards.
(Emphasis added). Subsection (C) then enumerates specific sources of income that are
categorically excluded from being considered part of a party’s “gross income.” See, e.g., Code
§ 20-108.2(C)(1)-(4). “No additions or subtractions from the gross income, as defined in Code
§ 20-108.2(C), even if otherwise valid considerations, may be made before this figure is
determined.” Richardson, 12 Va. App. at 21, 401 S.E.2d at 896.
Oley asserts in his first, second, and third assignments of error that the circuit court erred
as a matter of law by excluding certain sources of funds in its computation of Branch’s “gross
income.” Specifically, he argues the following items are “income” as defined by Code
§ 20-108.2(C): (i) Branch’s personal injury settlement annuity payments; (ii) the “free housing”
Branch receives as a “gift” from her mother; and (iii) Branch’s Pell Grant. Whether the circuit
court correctly concluded that those items are not “income” as defined by Code § 20-108.2(C)
presents a question of law that we review de novo. See Navas v. Navas, 43 Va. App. 484, 487,
599 S.E.2d 479, 480 (2004).
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i. Personal Injury Settlement Annuity
Oley first argues that the circuit court erred by failing to include Branch’s annuity
payments, originating from a 1987 personal injury settlement, in the computation of her “gross
income.” We disagree.
This Court has previously considered whether personal injury settlements are “income”
within the scope of Code § 20-108.2(C). In Whitaker, this Court upheld a circuit court’s refusal
to treat a father’s personal injury settlement as income. 18 Va. App. at 204, 442 S.E.2d at 431.
This Court reasoned that because the definition of “gross income” includes “capital gains,” and
“capital gains are by their nature profits, not returns of capital,” the General Assembly intended
that Code § 20-108.2(C) only “applies to income, not capital recoupment.” Id. at 204-05, 442
S.E.2d at 431 (emphasis added). In the case of personal injury settlements, the evidence must
prove that the settlement generates income or profit rather than merely makes the recipient whole
from damages incurred. Id. Because the father’s settlement was not apportioned as to pain and
suffering, permanent injury or disability, lost wages, lost capacity, or future medical needs, “it
would be speculative at best as to how to attribute any part of that settlement to prior lost wages
as opposed to the other elements of damages.” Id. at 205, 442 S.E.2nd at 431. Consequently, the
Whitaker Court held that in that particular case, the evidence did not prove that the settlement
generated income for the father and was not mere capital recoupment and therefore the
settlement could not be considered in awarding child support obligations.
Oley argues that because Branch receives her personal injury settlement in the form of
an annuity, Branch’s payments are “income” under subsection (C). The definition of “gross
income” contained in Code § 20-108.2(C) specifically includes “income from . . . annuities.”
The plain language of the statute requires that in order to be considered when calculating child
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support obligations, annuities—or any of the other enumerated items in Code § 20-108.2(C)—
must generate income to the recipient.
Dispersing Branch’s personal injury settlement in the form of an annuity does not change
the underlying character of the source—a personal injury settlement. Consequently, the mere
fact that Branch receives her personal injury settlement in the form of an annuity does not render
our holding in Whitaker inapplicable. This Court’s holding in Whitaker does not stand for the
proposition that personal injury settlements are categorically excluded from being considered
income under subsection (C). Rather Whitaker explains under what circumstances a personal
injury settlement may or may not be considered income. In order for a personal injury settlement
to be considered income pursuant to Code § 20-108.2(C), the evidence must prove that a defined
portion of the settlement generates income to the recipient rather than merely compensates for a
past injury.
In this case, like in Whitaker, Branch’s settlement is not apportioned as to the nature of
the damages that involve the settlement. There is nothing in the record that indicates that the
settlement involved compensation for lost wages or lost income—particularly in light of the fact
that Branch was a minor at the time of the accident. The circuit court concluded that Branch’s
settlement payments, even if paid out over many years in the form of an annuity, were capital
recoupments intended to make “a badly injured child whole.” The record supports the circuit
court’s determination that the evidence did not prove that the annuity payments generated any
income to Branch. Therefore, the circuit court did not err in excluding Branch’s personal injury
payments when computing her gross income pursuant to Code § 20-108.2(C) simply because
they took the form of an annuity.
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ii. Free Housing
Oley next argues that the circuit court erred by failing to include the monetary value of
Branch’s “free housing” when it calculated her gross income. He asserts that the “free housing”
is a “gift” from her mother, and is therefore “income” as defined by Code § 20-108.2(C). We
disagree.
Oley relies on Carmon v. Department of Social Services, 21 Va. App. 749, 467 S.E.2d
815 (1996), to support his proposition that free room and board must constitute nonmonetary
income. However, Oley fails to read the holding in Carmon within its factual context. In
Carmon, this Court found that free room and board were considered “income” under Code
§ 20-108.2(C) because Carmon received them in exchange for her services—collecting rent,
cleaning vacated rooms, etc. 21 Va. App. at 754-55, 467 S.E.2d at 818. The Court found that
the free lodging compensation she received in exchange for services was “nonmonetary income”
that was within the scope of Code § 20-108.2(C). Id. Because the value of the room and board
Carmon received as compensation for her services was $300, this Court affirmed the circuit
court’s finding that her income was $300. Id. In this case, the holding in Carmon is inapplicable
because there is nothing in the record establishing that Branch received anything in exchange for
her room at her mother’s house.
Oley argues that Branch’s “free housing” is a gift from her mother. Although “the statute
defines gifts as income,” Howe, 30 Va. App. at 214, 516 S.E.2d at 244, allowing someone to live
with you is not a “gift.” “A gift is property that is voluntarily transferred to another without
compensation.” Goldhamer v. Cohen, 31 Va. App. 728, 736, 525 S.E.2d 599, 603 (2000) (citing
Black’s Law Dictionary 696 (7th ed. 1999)). Here there is no property being transferred.
Moreover, there is nothing in the record to establish the value of Branch’s room at her mother’s
house. Oley asserts that the value of the room is $1,200 per month because her previous monthly
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rent was $1,200 per month. In other words, Oley argues that the “income” is the money Branch
saves by living with her mother rather than living in her previous apartment. Branch’s decision
to live with her mother amounts only to a decrease in spending, and is not property voluntarily
transferred to her by her mother, nor does it generate “income” as defined by Code
§ 20-108.2(C). Therefore, the circuit court did not err in excluding Branch’s housing
arrangements when calculating her gross income.
iii. Pell Grant
Oley next argues that the circuit court erred by failing to include Branch’s $5,500 Pell
Grant when it calculated her gross income. Whether federal educational grants are “income” for
the purposes of calculating child support is a matter of first impression in Virginia.2
2
A select number of other jurisdictions have addressed whether educational grants are
income for the purposes of calculating child support; however, those courts’ determinations all
turned on the language of each state’s specific statutory language. See, e.g., In re Marriage of
Syverson, 931 P.2d 691, 698 (Mont. 1997) (concluding that money from the mother’s Pell Grant
that exceeded her tuition bill should be considered gross income because the statute defined
gross income as “grants, scholarships, third party contributions or other money intended to
subsidize the parent’s living expenses and which are not required to be repaid at some later date”
(quoting Mont. Admin. R. § 46.30.1513(2)(e))); In re Marriage of Mellott, 93 P.3d 1219,
1221-22 (Kan. Ct. App. 2004) (concluding that tuition reimbursements from an employer not
exceeding cost of tuition were not income for child support purposes because under the statutory
guidelines income is only imputed to a noncustodial parent when “a parent receives significant in
kind payments that reduce personal living expenses as a result of employment, such as a
company car, free housing, or reimbursed meals,” and tuition reimbursement did not equate to
living expenses reimbursement); Thibadeau v. Thibadeau, 441 N.W.2d 281, 285 (Wis. 1989)
(concluding that the trial court erred by considering a federal educational grant as gross income
because the state statute defined gross income as income from any source “unless excluded by
law,” and the federal tax code excludes educational grants from gross income calculations);
McKyer v. McKyer, 632 S.E.2d 828, 836 (N.C. Ct. App. 2006) (remanding for further factual
findings because the state statutory guidelines specifically excluded from the definition of
income “benefits received from means-tested public assistance programs” and the trial court had
made no findings as to whether the school grant was a benefit from a means-tested public
assistance program, whether it significantly reduced the father’s personal living expenses, or
whether there are any limits upon the use of the funds).
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The Pell Grant Program provides financial assistance to students attending eligible
intuitions of higher education to help subsidize their post-secondary education costs.3 Trustees
of the Cal. State Univ. v. Riley, 74 F.3d 960, 962 (9th Cir. 1996); see also 34 C.F.R. § 690.1
(“The Federal Pell Grant Program awards grants to help financially needy students meet the cost
of their postsecondary education.”). Educational costs are not limited to tuition but may include
other supplemental costs such as room and board, books, or services. See, e.g., 20 U.S.C.
§ 1070a(e) (“Any disbursement allowed to be made by crediting the student’s account shall be
limited to tuition and fees and, in the case of institutionally owned housing, room and board.
The student may elect to have the institution provide other such goods and services by crediting
the student’s account.”).
“Under Code § 20-108.2(C), gross income includes ‘all income from all sources,’ and
unless specifically excluded, any income from any source is subject to inclusion.” Frazer v.
Frazer, 23 Va. App. 358, 378, 477 S.E.2d 290, 299-300 (1996) (emphasis added) (quoting Code
§ 20-108.2(C)) (holding that because Code § 20-108.2(C) did not specifically exclude voluntary
contributions to retirement plans from the definition of gross income, the contributions should be
included in gross income for child support purposes). While Code § 20-108.2(C) does not
specifically enumerate educational grants, such as the Pell Grant, under its definition of “gross
income,” there is nothing contained in the language of the statute, nor in this Court’s precedent,
that explicitly or implicitly excludes federal educational grants from being considered income.
Code § 20-108.2(C)’s definition of gross income specifically includes other
governmental assistance programs, such as “social security benefits.” However, subsection (C)
3
Notably, a Pell Grant is distinguishable from a student loan because a Pell Grant
recipient does not need to repay the grant.
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explicitly provides that gross income “shall not include” “supplemental security income
benefits” or “public assistance and social services as defined in Code § 63.2-100.” Code
§ 20-108.2(C)(1) and (2) (emphasis added). A Pell Grant does not meet any of those enumerated
exclusions. If the General Assembly intended to exclude additional government subsidies, such
as educational grants, it would have specifically articulated those exclusions. See
Commonwealth v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 96, 100 (2000) (“The maxim of
statutory construction expressio unius est exclusio alterius . . . provides that where a statute
speaks in specific terms, an implication arises that omitted terms were not intended to be
included within the scope of the statute.”). Because the General Assembly specifically
enumerated certain governmental assistance programs that “shall not” be considered “gross
income,” non-enumerated programs, such as federal educational grants, are therefore subject to
inclusion.
Therefore, because Code § 20-108.2(C) does not specifically exclude federal education
grants, like the Pell Grant in this case, they are subject to inclusion. Consequently, the circuit
court erred by not considering Branch’s Pell Grant when it calculated her gross income.
Accordingly, we remand this case to the circuit court to recalculate the parties’ presumptive
monthly support obligations in accordance with this opinion before it makes any deviations from
the guidelines based on the factors found in Code § 20-108.1.4
4
Notably, Code § 20-108.1(B)(11) provides a basis for deviation in considering the
“[e]arning capacity, obligations, financial resources, and special needs of each parent.”
Consequently, merely because a particular source of income is included or excluded in the
party’s “gross income,” the circuit court retains the discretion to consider those additional
resources as a basis for deviation if strict adherence to the guidelines “would be unjust or
inappropriate in a particular case.” Code § 20-108.1(B).
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B. Childcare Expenses
Oley next argues that the circuit court erred as a matter of law by failing to award him
childcare expenses.
Code § 20-108.2(F) provides that: “Any child-care costs incurred on behalf of the child
or children due to employment of the custodial parent shall be added to the basic child support
obligation.” While Oley is correct that this Court in Prizzia v. Prizzia, 58 Va. App. 137, 707
S.E.2d 461 (2011), stated that the language in Code § 20-108.2(F) “is mandatory,” he ignores the
final holding in that case. In Prizzia, this Court affirmed the trial court’s decision to exclude day
care expenses from its support award because the custodial parent failed to offer sufficient
evidence demonstrating the appropriate amount of day care expenses. Id. at 171, 707 S.E.2d at
478. Specifically, there was insufficient proof that the amount requested was reasonable in
comparison to alternative day care centers and that free day care provided by public schools was
unavailable to the child. Id. at 171, 707 S.E.2d at 477-78. Additionally, the custodial parent
testified that she was paying the nanny a higher hourly rate than she was earning herself. Id. In
affirming the trial court, this Court noted that “[s]imply because a statute requires inclusion of
certain expenses in a child support award, it does not follow that the party seeking the inclusion
of those expenses does not have the burden to produce sufficient credible evidence showing the
appropriate amount of those expenses.” Id. at 171-72, 707 S.E.2d at 478.
In this case, the circuit court found that Oley failed to produce credible evidence that the
childcare costs he was seeking were employment related. The nanny worked from 8:30 a.m. to
5:00 p.m. cooking, cleaning, and doing laundry while the children were in school 8:15 a.m. to
3:00 p.m. and Oley was working from home. Code § 20-108.2(F) only requires that the custodial
parent receive child support for childcare costs incurred “due to employment of the custodial
parent.” Here, the circuit court was free to conclude that Oley failed to prove that the nanny was
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necessary due to his employment or that he failed to demonstrate the requested amount of day
care expenses was appropriate under the circumstances. Therefore, we find that the circuit court
did not abuse its discretion in denying Oley’s request for childcare costs.
C. Private School Tuition
Oley next argues that the circuit court abused its discretion in declining to deviate from
the statutory guidelines by including the children’s private school tuition as part of Branch’s
child support obligation.
“Implicit in the statutory scheme is that educational expenses are included in the
presumptive amount of child support as calculated under the Code.” Smith v. Smith, 18
Va. App. 427, 435, 444 S.E.2d 269, 275 (1994). However, as explained supra, it is within the
circuit court’s discretion to deviate from the presumptive support guidelines based on the factors
found in Code § 20-108.1(B) as they affect the obligation of each party, the ability of each party
to provide child support, and the best interests of the child. Code § 20-108.1(B). One of the
factors providing grounds for deviating from the statutory presumption specifically includes
direct payments ordered by the court for “educational expenses.” Code § 20-108.1(B)(6). The
circuit court may order a parent “to pay for private educational expenses, even though such
expenses exceed the guidelines, when there is a demonstrated need for the child to attend private
school and the parent has the ability to pay.” Ragsdale v. Ragsdale, 30 Va. App. 283, 295, 576
S.E.2d 689, 704 (1999) (emphasis added) (citing Solomond v. Ball, 22 Va. App. 385, 391, 470
S.E.2d 157, 160 (1996)).
In determining whether there is a demonstrated need for the child to attend private
school, “the trial court must consider ‘factors such as the availability of satisfactory public
schools, the child’s attendance at private school prior to the separation and divorce, the child’s
special emotional or physical needs, religious training, and family tradition.’” Joynes v. Payne,
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36 Va. App. 401, 424, 551 S.E.2d 10, 21 (2001) (quoting Solomond, 22 Va. App. at 391, 470
S.E.2d at 160).
In this case the circuit court declined to require Branch to pay the children’s private
school tuition because, after having “reviewed the Eisert case,” the court found that Oley’s
evidence failed to establish “there [wa]s a need for the children to attend private school and that
the funds and needs otherwise cannot be met in public school.” Additionally, the circuit court
found that Oley failed to establish “that the mother has the ability to pay for it.” In Eisert v.
Eisert, No. 2990-06-4, 2008 Va. App. LEXIS 134, at *18-19 (Va. Ct. App. Mar. 18, 2008), an
unpublished decision of this Court, we found that because the children’s need to attend private
school was not in dispute the circuit court “was only required to explain in writing why it was
‘unjust or inappropriate’ for wife to share in the cost of tuition.” Id. at *19. This Court
concluded that the circuit court did not abuse its discretion in ordering the husband to pay the full
cost of tuition because there was a large disparity in the parties’ disposable incomes. Id.
In this case, unlike Eisert, the parties did not affirmatively agree that private school
attendance was necessary. Although Oley asserts that they agreed private school was in the best
interest of the children, the record in the light most favorable to the party that prevailed in the
court below reflects that Branch merely had no objection to the children attending Salem
Christian School. The parties’ agreement was only that the children would not be home
schooled. The circuit court did not find any evidence in the record that demonstrated a need to
attend private school or that the children’s needs could not adequately be met in public school.
The children had attended public school in the past and had also been home schooled. There was
no evidence as to any special emotional or physical needs of the children that would require them
to attend private school. Nor was there any evidence supporting the children’s need to attend
private school due to religious training.
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Irrespective of a demonstrated need for private school attendance, the circuit court also
found that the evidence did not establish that Branch had the ability to pay for private school
tuition. In fact, the circuit court concluded that Branch did not even have the ability to pay the
presumptive monthly support amount according to the child support schedule nor any excess
amount for private school tuition.
Here, the circuit court did not order Oley to pay for the children’s tuition, but rather
concluded that Branch did not have the ability to contribute to the cost nor was there a
demonstrated need to order her to contribute. In other words, the circuit court merely concluded
that Oley had failed to demonstrate a justification for deviating from the statutory guidelines by
ordering Branch to pay the children’s tuition.
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. Vissicchio v. Vissicchio, 27 Va. App. 240, 253, 498 S.E.2d 425, 432 (1998). In
reaching its decision, the circuit court properly considered both the children’s need for private
school and Branch’s ability to pay tuition. Under these circumstances, we find that there was
sufficient evidence to support the circuit court’s decision to decline to deviate from the child
support guidelines to include the cost of the children’s private school tuition, and therefore we
find no abuse of discretion.
D. Child Support Arrearages
Oley next argues that the circuit court erred by failing to award him child support
arrearages.
The circuit court found that there were no child support arrearages as of February 28,
2013. The juvenile and domestic relations district court had set Branch’s monthly payments at
$453.75 per month for the four children. The circuit court adopted that number for the four
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children but lowered her payments to $400 a month beginning March 1, 2013, the date of the
fourth child’s eighteenth birthday. Consequently the circuit court found that Branch had a credit
for the payments made from March 1, 2013 to May 22, 2013 and there was an overage in the
amount of $163.42 as of May 31, 2013. Because we are remanding this case to the circuit court
to recalculate the presumptive guidelines before any deviations respecting the parties’ monthly
child support, and because the circuit court’s determination regarding alleged arrearages was
based upon the monthly support obligations it ordered, we need not address this issue.
E. Due Process
Oley’s final argument is that he did not receive a fair hearing because the circuit court
was biased and he therefore should receive a new trial. Specifically he argues that the circuit
court’s deviations from the guidelines are “so far removed” from similar cases in Virginia, that
there is a “strong appearance of bias.” Further, he asserts that while he “does not claim any
knowledge of any pre-disposition by the [circuit] court,” its
verbal utterances of apparent favoritism of mother, bias against
father, viewed in tandem with the Final Order, one would be hard
pressed not to see the appearance that the [circuit] court simply
used judicial authority and statutorily granted powers of deviation
to correct a personally perceived injustice not supported by the
evidence or the facts, nor grounded in law.
Oley cites no authority in support of his position that his due process rights were violated.
“Rule 5A:20(e) provided, in part, that the opening brief shall include ‘[t]he principles of law, the
argument, and the authorities relating to each question presented.’” Atkins v. Commonwealth,
57 Va. App. 2, 20, 698 S.E.2d 249, 258 (2010). “The Supreme Court concluded that ‘when a
party’s ‘failure to strictly adhere to the requirements of Rule 5A:20(e)’ is significant, ‘the Court
of Appeals may . . . treat a question presented as waived.’” Id. (quoting Parks v. Parks, 52
Va. App. 663, 664, 666 S.E.2d 547, 548 (2008)). “If the parties believed that the circuit court
erred, it was their duty to present that error to [the Court of Appeals] with legal authority to
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support their contention.” Fadness v. Fadness, 52 Va. App. 833, 851, 667 S.E.2d 857, 866
(2008). Because Oley provides no legal argument or authority in his brief to support his position
that he was denied due process of law and did not receive a fair hearing, his argument is waived
under Rule 5A:20(e).
Moreover, Oley fails to demonstrate any reversible error. “A litigant is denied due
process if his or her case is heard before a judge who harbors ‘such bias or prejudice as would
deny [the litigant] a fair trial.’” Piatt v. Piatt, 27 Va. App. 426, 435-36, 499 S.E.2d 567, 572
(1998) (quoting Welsh v. Commonwealth, 14 Va. App. 300, 314, 416 S.E.2d 451, 459 (1992)).
Oley concedes that he has no knowledge of any pre-existing bias of the circuit court, but rather
asserts that the circuit court’s rulings and remarks from the bench demonstrated partiality. This
argument is without merit. As the factfinder, the circuit court’s function is to make credibility
determinations. In this capacity it found Branch credible and Oley not credible. All of the
circuit court’s legal rulings demonstrated an appropriate application of reason and impartiality.
III. CONCLUSION
In sum, we reverse the circuit court’s judgment excluding Branch’s Pell Grant from the
computation of her gross income under Code § 20-108.2(C). We remand this case to the circuit
court for recalculation of the child support schedule to include Branch’s Pell Grant as part of her
“gross income” before it considers any deviation pursuant to Code § 20-108.1(B). The circuit
court’s judgment regarding all other issues before us is affirmed.
Affirmed in part,
reversed in part,
and remanded.
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