COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Humphreys and Senior Judge Coleman Argued at Richmond, Virginia
ANTONIO GIAMBANCO MEMORANDUM OPINION * BY v. Record Nos. 1269-00-2 and JUDGE ROSEMARIE ANNUNZIATA 2004-00-2 JUNE 12, 2001
TAMARA JO GIAMBANCO
FROM THE CIRCUIT COURT OF HENRICO COUNTY Gary A. Hicks, Judge
Murray J. Janus (David E. Haynes; Bremner, Janus, Cook & Marcus, on brief), for appellant.
No brief or argument for appellee.
The appellant, Antonio Giambanco, appeals from an order
entered by the Henrico County Circuit Court: (1) denying his
motion to reduce child support; (2) granting appellee's, Tamara
Jo Giambanco's, motion to amend child support; (3) increasing
his child support obligation to $1,066 per month, retroactive
from May 26, 1999 to February 2000; (4) increasing his child
support obligation to $1,394 per month effective March 1, 2000;
and (5) granting Tamara's motion for attorney's fees and costs
and awarding her $4,732.50. Antonio also appeals from an order
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. of the same court denying his motion to reconsider the above
issues. For the following reasons, we affirm.
I.
BACKGROUND
Antonio and Tamara Jo Giambanco were married on September
4, 1990. They were divorced by a final decree entered by the
Henrico County Circuit Court on May 26, 1999. They have one
child, Francesco David Giambanco, born April 13, 1995.
An equitable distribution order divided the parties'
property, which included, among other items, a pizza business
and a rental home. The court valued the pizza business at
$105,000. Antonio was to receive two-thirds of that value, and
Tamara was to receive one-third, or $35,000. The court valued
the rental property at $50,000 and ordered each party to receive
half the value of that property. Antonio's child support
obligation for Francesco was initially set at $1,000 per month
but was to be recalculated when more financial information was
available, including Antonio's 1998 tax returns.
Following the divorce, Antonio sold the pizza business and
the rental property and paid Tamara for her portion of the
properties. Following the sale of the pizza business to his
brother, Massimiliano, Antonio worked for his brother at the
same business, earning $450 per week.
Antonio filed a motion to reduce child support, and Tamara
filed a motion to increase it. Both motions were heard on
- 2 - February 14, 2000. Following the hearing, the court denied
Antonio's motion to decrease child support and granted Tamara's
motion, increasing Antonio's monthly child support obligation
from $1,000 to $1,066 per month retroactive to May 26, 1999
through February 2000, and increasing his monthly child support
obligation to $1,394 per month effective March 1, 2000. The
court also awarded Tamara $4,732.50 in attorney's fees and
costs.
II.
ANALYSIS
A.
Capital Gains
Antonio contends the trial court erred in including the
capital gains he realized as a result of the sale of the
business and rental property as income in determining his child
support obligation. 1 He argues that, because the gains were
"extraordinary" and "irregular," the court abused its discretion
in not deviating from the guideline amount. However, the fact
that the gains were "one-time" and "not a recurring event" is
not, in itself, a basis for requiring the court to deviate from
the presumptive amount.
1 Antonio also contends the court erred in including $22,500 he realized in capital gain upon the sale of the marital home. However, the record shows the court did not consider this gain in calculating Antonio's gross income.
- 3 - Decisions regarding child support rest within the sound
discretion of the trial court and will not be reversed on appeal
unless plainly wrong or unsupported by the evidence. Young v.
Young, 3 Va. App. 80, 81, 348 S.E.2d 46, 47 (1986). Code
§ 20-108.1(B) permits the court to consider "[e]xtraordinary
capital gains such as capital gains from the sale of the marital
abode" in determining whether to deviate from the guideline
amount in awarding child support. Code § 20-108.1(B) (listing
factors the court may consider in deviating); see Goldhamer v.
Cohen, 31 Va. App. 728, 737-38, 525 S.E.2d 599, 603-04 (2000);
Smith v. Smith, 18 Va. App. 427, 434-35, 444 S.E.2d 269, 274-75
(1994); see also Howe v. Howe, 30 Va. App. 207, 216, 516 S.E.2d
240, 245 (1999) (father may seek modification in support if and
when his income no longer includes such irregular income).
We find the record does not support Antonio's contention
that because the capital gains were irregular, the court abused
its discretion in not deviating from the guideline amount. 2
2 Antonio also contends the court may not include capital gains derived from the sale of property that was the subject of an equitable distribution award in the gross income calculation. However, because he failed to raise the issue at the trial level or to cite any authority for this proposition on appeal, we will not address whether pre-property-division appreciation of an asset constitutes a "capital gain" to be included in the gross income calculation under Code § 20-108.2(C). Rule 5A:18; Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992) ("Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration.").
- 4 - B.
Other Calculation Errors
1. Child's Medical Insurance
Antonio claims the court erred in deducting $100, rather
than $122, for medical insurance payments that Antonio made for
Francesco. However, Antonio introduced no evidence to show that
he paid $122 for medical insurance for Francesco. We,
therefore, affirm the trial court's determination on this issue.
2. 1998 Income, Spousal Support and Rental Income
Antonio contends Tamara introduced inaccurate information
concerning his income at the child support hearing, based on her
miscalculation of his 1998 income. He also claims the trial
court erred in not including spousal support and rental income
allegedly received by Tamara in calculating her monthly income.
However, at the child support hearing, Antonio failed to refute
Tamara's calculation of his income and failed to introduce
evidence concerning the spousal support and rental income he
claims she received.
Moreover, he failed to raise these issues at the hearing,
raising them for the first time at the hearing on his motion to
reconsider. In denying Antonio's motion to introduce evidence
in support of his new contentions at the hearing on his motion
to reconsider, the trial court concluded that Antonio had ample
opportunity at the initial hearing on the child support
modification to introduce evidence regarding his 1998 income,
- 5 - the spousal support and the rental income. We find the trial
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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Humphreys and Senior Judge Coleman Argued at Richmond, Virginia
ANTONIO GIAMBANCO MEMORANDUM OPINION * BY v. Record Nos. 1269-00-2 and JUDGE ROSEMARIE ANNUNZIATA 2004-00-2 JUNE 12, 2001
TAMARA JO GIAMBANCO
FROM THE CIRCUIT COURT OF HENRICO COUNTY Gary A. Hicks, Judge
Murray J. Janus (David E. Haynes; Bremner, Janus, Cook & Marcus, on brief), for appellant.
No brief or argument for appellee.
The appellant, Antonio Giambanco, appeals from an order
entered by the Henrico County Circuit Court: (1) denying his
motion to reduce child support; (2) granting appellee's, Tamara
Jo Giambanco's, motion to amend child support; (3) increasing
his child support obligation to $1,066 per month, retroactive
from May 26, 1999 to February 2000; (4) increasing his child
support obligation to $1,394 per month effective March 1, 2000;
and (5) granting Tamara's motion for attorney's fees and costs
and awarding her $4,732.50. Antonio also appeals from an order
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. of the same court denying his motion to reconsider the above
issues. For the following reasons, we affirm.
I.
BACKGROUND
Antonio and Tamara Jo Giambanco were married on September
4, 1990. They were divorced by a final decree entered by the
Henrico County Circuit Court on May 26, 1999. They have one
child, Francesco David Giambanco, born April 13, 1995.
An equitable distribution order divided the parties'
property, which included, among other items, a pizza business
and a rental home. The court valued the pizza business at
$105,000. Antonio was to receive two-thirds of that value, and
Tamara was to receive one-third, or $35,000. The court valued
the rental property at $50,000 and ordered each party to receive
half the value of that property. Antonio's child support
obligation for Francesco was initially set at $1,000 per month
but was to be recalculated when more financial information was
available, including Antonio's 1998 tax returns.
Following the divorce, Antonio sold the pizza business and
the rental property and paid Tamara for her portion of the
properties. Following the sale of the pizza business to his
brother, Massimiliano, Antonio worked for his brother at the
same business, earning $450 per week.
Antonio filed a motion to reduce child support, and Tamara
filed a motion to increase it. Both motions were heard on
- 2 - February 14, 2000. Following the hearing, the court denied
Antonio's motion to decrease child support and granted Tamara's
motion, increasing Antonio's monthly child support obligation
from $1,000 to $1,066 per month retroactive to May 26, 1999
through February 2000, and increasing his monthly child support
obligation to $1,394 per month effective March 1, 2000. The
court also awarded Tamara $4,732.50 in attorney's fees and
costs.
II.
ANALYSIS
A.
Capital Gains
Antonio contends the trial court erred in including the
capital gains he realized as a result of the sale of the
business and rental property as income in determining his child
support obligation. 1 He argues that, because the gains were
"extraordinary" and "irregular," the court abused its discretion
in not deviating from the guideline amount. However, the fact
that the gains were "one-time" and "not a recurring event" is
not, in itself, a basis for requiring the court to deviate from
the presumptive amount.
1 Antonio also contends the court erred in including $22,500 he realized in capital gain upon the sale of the marital home. However, the record shows the court did not consider this gain in calculating Antonio's gross income.
- 3 - Decisions regarding child support rest within the sound
discretion of the trial court and will not be reversed on appeal
unless plainly wrong or unsupported by the evidence. Young v.
Young, 3 Va. App. 80, 81, 348 S.E.2d 46, 47 (1986). Code
§ 20-108.1(B) permits the court to consider "[e]xtraordinary
capital gains such as capital gains from the sale of the marital
abode" in determining whether to deviate from the guideline
amount in awarding child support. Code § 20-108.1(B) (listing
factors the court may consider in deviating); see Goldhamer v.
Cohen, 31 Va. App. 728, 737-38, 525 S.E.2d 599, 603-04 (2000);
Smith v. Smith, 18 Va. App. 427, 434-35, 444 S.E.2d 269, 274-75
(1994); see also Howe v. Howe, 30 Va. App. 207, 216, 516 S.E.2d
240, 245 (1999) (father may seek modification in support if and
when his income no longer includes such irregular income).
We find the record does not support Antonio's contention
that because the capital gains were irregular, the court abused
its discretion in not deviating from the guideline amount. 2
2 Antonio also contends the court may not include capital gains derived from the sale of property that was the subject of an equitable distribution award in the gross income calculation. However, because he failed to raise the issue at the trial level or to cite any authority for this proposition on appeal, we will not address whether pre-property-division appreciation of an asset constitutes a "capital gain" to be included in the gross income calculation under Code § 20-108.2(C). Rule 5A:18; Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992) ("Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration.").
- 4 - B.
Other Calculation Errors
1. Child's Medical Insurance
Antonio claims the court erred in deducting $100, rather
than $122, for medical insurance payments that Antonio made for
Francesco. However, Antonio introduced no evidence to show that
he paid $122 for medical insurance for Francesco. We,
therefore, affirm the trial court's determination on this issue.
2. 1998 Income, Spousal Support and Rental Income
Antonio contends Tamara introduced inaccurate information
concerning his income at the child support hearing, based on her
miscalculation of his 1998 income. He also claims the trial
court erred in not including spousal support and rental income
allegedly received by Tamara in calculating her monthly income.
However, at the child support hearing, Antonio failed to refute
Tamara's calculation of his income and failed to introduce
evidence concerning the spousal support and rental income he
claims she received.
Moreover, he failed to raise these issues at the hearing,
raising them for the first time at the hearing on his motion to
reconsider. In denying Antonio's motion to introduce evidence
in support of his new contentions at the hearing on his motion
to reconsider, the trial court concluded that Antonio had ample
opportunity at the initial hearing on the child support
modification to introduce evidence regarding his 1998 income,
- 5 - the spousal support and the rental income. We find the trial
court did not abuse its discretion in refusing to hear such
evidence. See Mundy v. Commonwealth, 161 Va. 1049, 1064, 171
S.E. 691, 696 (1933) (it is within the trial court's discretion
whether to hear more evidence "[w]hen all the testimony in the
trial of a case has been concluded and the witnesses for the
respective parties have been excused from their attendance upon
court"); Morris v. Morris, 3 Va. App. 303, 307, 349 S.E.2d 661,
663 (1986) (where a party has had ample opportunity to present
evidence, it is within the court's discretion whether to take
further evidence after the evidentiary hearing has concluded).
C.
Motion to Reconsider
For the reasons set forth previously, we affirm the trial
court's denial of Antonio's motion to reconsider.
D.
Attorney's Fees and Costs
Antonio contends the trial court erred in awarding
attorney's fees and costs to Tamara because she first presented
evidence on the issue at the hearing on Antonio's motion to
reconsider. We disagree and affirm the award.
Antonio filed a motion to decrease his child support
obligation in August 1999. In November 1999, Tamara filed a
motion to deny Antonio's motion to decrease support and in her
motion she asked for attorney's fees and costs. She requested
- 6 - attorney's fees and costs again in her motion to increase child
support, dated January 28, 2000. On February 14, 2000, the
court heard evidence on the parties' motions to modify the
support award. However, Tamara did not introduce evidence
regarding her attorney's fees and costs at that hearing. The
court denied Antonio's motion to decrease support and granted
Tamara's motion to increase support, but did not rule on her
request for attorney's fees and costs.
On February 17, 2000, Antonio filed a motion to reconsider.
Tamara filed a response on February 22, 2000, asking the court
to deny Antonio's motion and again asked for attorney's fees and
costs. On April 16, 2000, Tamara filed a separate motion for
the award of attorney's fees and costs and on April 28, 2000,
she filed an affidavit detailing the fees and costs she had
incurred from the motions to modify child support and the motion
to reconsider. 3
3 Tamara's affidavit listed the following:
Attorney's Fees (through 2/15/00) $8,476.04 Attorney's Fees (2/17/00 thru 2/25/00) $ 632.50 RECONSIDERATION ISSUE Estimated Attorney's Fees (for 2/28/00) $ 187.50 Costs $4,803.18 Clerk $ 55.00 Service $ 210.00 Court Reporter $ 644.66 (Transcript & 2 Appearance Fees) Delivery $ 93.50 Document Fee $ 11.27 Expert Witness $3,788.75 SEE ABOVE GRAND TOTAL $14,099.22.
- 7 - The court heard Antonio's motion to reconsider on April 28,
2000, and allowed Tamara to introduce evidence regarding her
attorney's fees and costs at that time. Although Tamara
requested attorney's fees and costs in the amount of $14,099.22,
the court awarded her $4,732.50, $3,788.75 of which was for
costs she incurred in expert witness fees stemming from the
February hearing on the motions to modify support. The award
also included reimbursement for attorney's fees and costs
arising from the April hearing on Antonio's motion to
reconsider. 4
It was within the court's discretion to allow her to
present evidence for the first time at the hearing on the motion
to reconsider, and we find no abuse of such discretion. See
Mundy, 161 Va. at 1064, 171 S.E. at 696; Morris, 3 Va. App. at
307, 349 S.E.2d at 663. Although Tamara did not introduce
evidence regarding her attorney's fees and costs at the February
hearing, she had requested fees and costs prior to that date.
In addition, prior to the April hearing on Antonio's motion to
reconsider, she gave Antonio notice that she intended to seek an
award of attorney's fees and costs stemming from the motions to
modify support and from the upcoming hearing on the motion to
4 In the circuit court's order dated July 20, 2000, in which the court denied Antonio's motion to reconsider, the court ordered that Tamara "is hereby granted an award of attorney's fees in the amount of $632.50 and $100.00 for the April 28th hearing and $4,000.00 for court costs and expert witness fees."
- 8 - reconsider, and she filed an affidavit in support of her request
setting out the extent of the award she sought.
Antonio also contends the award was excessive. The award
of attorney's fees is within the trial court's discretion, and
we will not reverse an award absent an abuse of discretion.
Ragsdale v. Ragsdale, 30 Va. App. 283, 297, 516 S.E.2d 698,
704-05 (1999). We find the court did not abuse its discretion
in deciding to award attorney's fees and costs to Tamara and in
determining an appropriate amount; therefore, we affirm the
award.
In sum, we find the court did not abuse its discretion in
modifying the child support award or in awarding attorney's fees
and costs to Tamara. Accordingly, we affirm the trial court's
orders.
Affirmed.
- 9 -