Roy D. Hare, Sr. v. Janice D. Hare

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
ROY D. HARE, SR.
MEMORANDUM OPINION *
v. Record No. 2526-99-1 PER CURIAM
APRIL 25, 2000
JANICE D. HARE
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
(Vicki Beard, on briefs), for appellant.
(Charles E. Haden, on brief), for appellee.
Roy D. Hare, Sr. (husband) appeals the decision of the
circuit court setting spousal and child support to be paid to
Janice D. Hare (wife). On appeal, husband contends that the
trial court erred by (1) requiring husband to maintain an
existing life insurance policy naming his children as
beneficiaries; (2) awarding $400 in monthly spousal support
without imputing income to wife; (3) awarding wife $1,000 in
attorney's fees; and (4) ordering husband to pay a pro rata
share of all the children's uninsured medical expenses which
exceed $100. Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Under familiar principles, we view the evidence and all
reasonable inferences in the light most favorable to wife as the
prevailing party below.
"The burden is on the party who alleges
reversible error to show by the record that
reversal is the remedy to which he is
entitled." We are not the fact-finders and
an appeal should not be resolved on the
basis of our supposition that one set of
facts is more probable than another.
Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859
(1992) (citations omitted).
Life Insurance
Husband contends that the trial court erred when it ruled
that he was to retain his existing life insurance naming the
children as beneficiaries. He concedes that the trial court acted
under the authority provided in Code § 20-108.1(D). He argues,
however, that wife failed to request an award of insurance and
that the trial court was required to examine whether the cost of
maintaining the life insurance was prohibitive. We find
husband's arguments unpersuasive.
In pertinent part, Code § 20-108.1 provides:
D. In any proceeding under this title,
Title 16.1 or Title 63.1 on the issue of
determining child support, the court shall
have the authority to order a party to (i)
maintain any existing life insurance policy
on the life of either party provided the
party so ordered has the right to designate
- 2 -
a beneficiary and (ii) designate a child or
children of the parties as the beneficiary
of all or a portion of such life insurance
for so long as the party so ordered has a
statutory obligation to pay child support
for the child or children.
The evidence established that husband had existing life
insurance naming the children as beneficiaries. While the
written statement of facts noted that neither party offered any
evidence concerning the cost of the life insurance premium,
evidence indicated that husband claimed $26.50 as a monthly life
insurance premium reducing his gross monthly income. Husband
cannot be heard to complain on appeal that the trial court
failed to consider other evidence that he failed to present.
In her bill of complaint, wife prayed for child support
under the provisions of Code § 20-107.2. "In determining child
support, there is a rebuttable presumption that the amount
determined in accordance with the statutory guidelines, Code
§ 20-108.2, is the correct award." Brooks v. Rogers, 18 Va.
App. 585, 591, 445 S.E.2d 725, 728 (1994). See Code
§§ 20-108.1(B) and 20-108.2. These sections also expressly
authorize the trial court to include provisions covering health
care expenses and life insurance in its child support decrees.
See Code § 20-108.1(C) and (D). In addition, the parties
presented evidence that husband currently had life insurance
coverage for the benefit of the children. Therefore, because
- 3 -
the trial court acted within its statutory authority based upon
the evidence presented, we find no error.
Spousal Support
"The determination whether a spouse is entitled to support,
and if so how much, is a matter within the discretion of the court
and will not be disturbed on appeal unless it is clear that some
injustice has been done." Dukelow v. Dukelow, 2 Va. App. 21, 27,
341 S.E.2d 208, 211 (1986). "In fixing the amount of the spousal
support award, a review of all of the factors contained in Code
§ 20-107.1 is mandatory, and the amount awarded must be fair and
just under all of the circumstances . . . ." Gamble v. Gamble, 14
Va. App. 558, 574, 421 S.E.2d 635, 644 (1992). "A court may under
appropriate circumstances impute income to a party seeking spousal
support." Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396
S.E.2d 675, 679 (1990); see Code § 20-107.1(E).
Husband contends that the trial court erred when it failed to
impute income to wife. The written statement of facts indicates
that wife was working twenty-eight hours a week "in a permanent
part-time job earning $5.25 per hour . . . because it provided
health insurance benefits to her at a cost of $15.00 per week."
In 1999, wife was laid off due to budget cutbacks from a job
paying $1,267 per month. Wife turned down a nursing position due
to the nature of the patient's illness. The trial court
calculated wife's income based upon her actual monthly earnings of
$637 and an earned income tax credit of $307. The total income of
- 4 -
$11,328 attributed to wife was more than wife had earned in 1995
through 1997, and approximately $3,000 less than wife's total
income in 1998. Based upon the evidence before the trial court,
we cannot say that its decision not to impute additional income to
wife was an abuse of discretion.
Attorney's Fees
Husband contends that the trial court lacked jurisdiction to
award attorney's fees in its support order of September 28, 1999,
because it ruled in the equitable distribution decree entered on
August 2, 1999, nunc pro tunc June 21, 1999, that "each party
shall pay their own attorney's fees." However, in the proceedings
before the trial court, husband objected to the award of
attorney's fees on the ground it was "excessive, beyond
[husband's] reasonable ability to pay and an abuse of discretion."
He did not raise any objection based upon the court's purported
lack of jurisdiction. The trial court expressly reserved its
jurisdiction to determine child and spousal support when it issued
its August 2, 1999 order, and we find no indication that the court
lacked jurisdiction to award wife attorney's fees. Therefore,
husband waived his argument that the trial court lacked
jurisdiction to award additional attorney's fees. See Rule 5A:18.
Uninsured Medical Expenses
Husband contends that the trial court deviated from the
child support guidelines set out in Code § 20-108.2 by requiring
him to pay a pro rata share of uninsured medical expenses
- 5 -
exceeding $100, but failed to provide a written basis for its
deviation. Husband did not raise this argument below, and we
will not consider it for the first time on appeal. See Rule
5A:18.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
- 6 -