COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
BRADFORD RAMEY INGRAM MEMORANDUM OPINION * v. Record No. 1966-98-2 PER CURIAM SEPTEMBER 14, 1999 MELISSA ZURUN INGRAM
FROM THE CIRCUIT COURT OF HENRICO COUNTY Buford M. Parsons, Jr., Judge
(Bradford Ingram, pro se, on briefs).
(Darla J. Blatnik, on brief), for appellee.
Bradford Ramey Ingram (father) appeals the final decree of
divorce entered by the circuit court on August 3, 1998. The final
decree awarded Melissa Zurun Ingram (mother) a divorce on the
ground that the parties lived separate and apart without
interruption for more than one year; maintained the award to
mother of sole custody of the parties' daughter; denied father's
motion to change custody, visitation, and child support; and
granted mother's Motion For Show Cause Order following father's
failure to pay child support or his share of medical expenses. On
appeal, father raises twenty-four assignments of error. Upon
reviewing the record and briefs of the parties, we conclude that
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. this appeal is without merit. 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 the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.
Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App.
15, 20, 348 S.E.2d 13, 16 (1986).
"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).
We address father's issues in the manner in which he
presented his arguments.
Issues 1, 2, 7, 8, 10, 11, 12, 20 and 21
"In all child custody cases . . . 'the best interests of
the child are paramount and form the lodestar for the guidance
of the court in determining the dispute.'" Bailes v. Sours, 231
Va. 96, 99, 340 S.E.2d 824, 826 (1986) (citation omitted).
The authority vested in a trial court to decide issues concerning the care, custody, support and maintenance of the minor children, the visitation rights of the non-custodial parent, and the extent to which those rights and responsibilities
- 2 - shall be apportioned between estranged parents is a matter of judicial discretion which courts must exercise with the welfare of the children as the paramount consideration.
Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d
10, 11 (1986).
Father contends that the trial court violated his
constitutional rights by failing to order joint custody as set
out in the parties' separation agreement. That argument is
without merit. Matters of child custody, like matters of child
support, may not be removed from the control of the trial court
by agreement of the parties. "Code § 20-108 gives the divorce
court continuing jurisdiction to change or modify its decree
concerning the custody and maintenance of minor children, and a
contract between husband and wife cannot prevent the court from
exercising this power." Featherstone v. Brooks, 220 Va. 443,
446, 258 S.E.2d 513, 515 (1979). Accordingly, the trial court
did not err in refusing to order joint custody as set out in the
parties' agreement, in failing to receive unspecified testimony
concerning the parties' intent in making the agreement, in
refusing to order a jury trial on issues relating to the
agreement or in failing to construe provisions of the agreement.
Father raises other constitutional challenges to the trial
court's custody decision and to its authority to grant mother a
divorce on the ground that the parties lived separate and apart.
These arguments were not raised before the trial court. "The
- 3 - Court of Appeals will not consider an argument on appeal which
was not presented to the trial court." Ohree v. Commonwealth,
26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). See
Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration of
this question on appeal. The record does not demonstrate good
cause for father's failure to raise these issues, nor
"affirmatively sho[w] that a miscarriage of justice has
occurred, not . . . merely . . . that a miscarriage might have
occurred" so as to warrant application of the "ends of justice"
provision. Mounce v. Commonwealth, 4 Va. App. 433, 436, 357
S.E.2d 742, 744 (1987). Therefore, the record does not reflect
any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18.
Issue 3
Father contends that the trial court erred by failing to
grant his request for a continuance. "Whether to grant or deny
a continuance of a trial is a matter that lies within the sound
discretion of a trial court, and its ruling will not be reversed
on appeal unless it is plainly wrong." Cardwell v.
Commonwealth, 248 Va. 501, 508, 450 S.E.2d 146, 151 (1994). The
first reason father offered in support of his request for a
continuance on the day of the hearing was that he received the
report on the parties' psychological examinations only that
- 4 - morning. The trial court denied a continuance on that ground,
noting that both parties received the report at the same time.
Father then stated:
[t]he second [reason for seeking a continuance] . . . would be also, uh, a, this one we may be able to take care of because Mr. Hough, who is conducting the psychological evaluation, is actually present. I didn't realized at the time that he would be present here today, but Ms. Blatnik contacted Mr. Hough while he was in the course of conducting the psychological evaluations, exchanged information with him, presented him with tape recordings and so forth and other information. Uh, I would like some opportunity to be able to inquire and investigate into that, as to the nature of the other recordings and so forth, and as to whether or not they may have played a part in that determination.
Father cross-examined Mr. Hough concerning the tapes and the
psychological report. We find no indication that father
preserved any further objection to the presence of Mr. Hough at
trial. We cannot say that the trial court abused its discretion
in denying father's request for a continuance. 1
Issues 4 and 18
Father contends that the trial court erred in failing to
hear evidence concerning the parties' income and erred in
1 Father refers to his letter to the trial judge dated April 3, 1998. We note that, pursuant to the trial judge's certification dated March 9, 1999, that letter is not part of the record on appeal and, therefore, not available for our review.
- 5 - finding that he was voluntarily unemployed. We find these
contentions to be without merit.
In the September 30, 1997 pendente lite order, father was
ordered to pay $638 in monthly child support, based upon gross
monthly income of $2,500. At the hearing on April 6, 1998, the
trial court received evidence on mother's Motion for Show Cause
Order for father's failure to pay any support after September
1997, and on father's motion to change support. The trial court
indicated that it would consider evidence that father was
entitled to a modification in child support due to his
unemployment.
Under Code § 20-108, a party seeking a reduction in child
support has the burden to prove by a preponderance of the
evidence a material change in circumstances justifying
modification of the support requirement. See Yohay v. Ryan, 4
Va. App. 559, 566, 359 S.E.2d 320, 324 (1987).
In discharging this burden, a father seeking a reduction in support payments must also make a full and clear disclosure about his ability to pay, and he must show his claimed lack of ability to pay is not due to his own voluntary act or because of his neglect. In other words, the father must establish that he is not "voluntarily unemployed or voluntarily under employed."
Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119
(1991) (citing Edwards v. Lowry, 232 Va. 110, 112-13, 348 S.E.2d
259, 261 (1986), and Code § 20-108.1(B)(3)).
- 6 - The evidence presented by the parties established that
father's last job was with Arnold Kent Publishing Company from
May to October 1997. Father initially earned a salary of
$30,000. The president, Robert F. Kent, testified that
salespeople like father received no salary, but were paid a
commission based upon a percentage of the advertising they sold.
Pursuant to this practice, father's salary was cut to $15,000 in
October 1997, then eliminated. Kent testified that father could
have earned up to $90,000 annually and that father had the
ability to do the work, but that his work performance
deteriorated. Kent also testified that he spoke to father about
his poor performance and work ethic before father left the
company in October 1997. Father received unemployment for a
period of time. However, Arnold Kent Publishing won an appeal
to the Virginia Employment Commission, based upon the
Commission's determination that father voluntarily left his
employment. Father had no income at the time of the hearing
and had not held any employment since leaving Arnold Kent
Publishing.
The evidence also indicated that father checked himself
into a hospital after leaving Arnold Kent Publishing in October
1997, but checked out one week later. He denied being an
alcoholic, although he admitted that in the last fifteen months
there were "three or four" times "which normally have lasted no
more than a week or two" when he "[had] become very frustrated
- 7 - and [had] consumed large amounts of alcohol." Father testified
that he told his current counselor that he consumed a
twelve-pack of beer a day, stating
I think that I told her that there had been days that I had consumed a 12-pack. I would tell the Court that. I have no problem with that. There have been days I've consumed more than that.
Father also admitted that he paid no support for his daughter
since September 1997.
The trial court found that father voluntarily left his
employment with Arnold Kent Publishing and that the current
amount of child support would continue. Based upon the evidence
received at the hearing, we find no error in the trial court's
finding that father was voluntarily unemployed. In addition,
while father alleged that mother's earnings were underreported
and that the child care costs were inflated, he introduced no
evidence supporting his allegations. Therefore, we find no
error in the trial court's denial of father's motion to modify
support.
Issues 5 and 9
Father contends that the trial court failed to consider the
statutory factors set out in Code § 20-124.3 and failed to
conduct a full hearing before ruling on custody. We find no
merit in these contentions. The trial court conducted a hearing
at which father presented evidence and argument, including his
allegations that mother physically abused him. While father
- 8 - contends that the trial judge indicated he would conduct a full
hearing later, it is clear from the record that the trial judge
clarified what issues were pending, decided those issues, and
referred the matter to the juvenile and domestic relations
district court for future proceedings.
As the party seeking to change custody, father bore the
burden to prove a material change in circumstances warranting a
modification. Based upon the evidence, including the trial
court's credibility determination, the trial court found no
evidence warranted a change in custody. That finding is clearly
supported by the evidence. The trial court's order indicates
that the trial court considered the statutory factors, and
father has not indicated with specificity which factors he
asserts were not considered.
Issue 6
The trial court granted wife's motion for a divorce on the
alternative grounds set out in Code § 20-91(A)(9) that the
parties lived separate and apart without interruption for over
one year. A trial court is "not compelled 'to give precedence
to one proven ground of divorce over another.'" Williams v.
Williams, 14 Va. App. 217, 220, 415 S.E.2d 252, 253 (1992)
(citation omitted). "It is well established that 'where dual or
multiple grounds for divorce exist, the trial judge can use his
sound discretion to select the grounds upon which he will grant
the divorce.'" Id. (citation omitted). Even if the evidence
- 9 - established the alternative grounds father pleaded in his
cross-bill, the trial court was entitled to grant the divorce on
the proven ground that the parties lived separate and apart in
excess of one year. We find no reversible error in the trial
court's decision to grant a no-fault divorce.
Issue 13
Father contends that the trial court granted mother sole
custody based on the court's personal beliefs instead of the
law. "It is well established that the trier of fact ascertains
a witness' credibility, determines the weight to be given to
their testimony, and has the discretion to accept or reject any
of the witness' testimony." Street v. Street, 25 Va. App. 380,
387, 488 S.E.2d 665, 668 (1997) (en banc). A decision on
whether to modify a child custody order is committed to the
sound discretion of the trial court. See Wilson v. Wilson, 18
Va. App. 193, 195, 442 S.E.2d 694, 696 (1994). The trial
court's determination of whether a change of circumstances
exists and its evaluation of the best interests of the child
will not be disturbed on appeal if the court's findings are
supported by credible evidence. See Walker v. Fagg, 11 Va. App.
581, 586, 400 S.E.2d 208, 211 (1991).
The trial court noted that joint custody was not
appropriate under the circumstances of this case, as the parents
were unable to cooperate. Code § 20-124.2(b) provides that
"[t]he court shall assure minor children of frequent and
- 10 - continuing contact with both parents, when appropriate . . . ."
(Emphasis added.) Evidence indicated that father was found
guilty of assaulting mother and of violating a protective order
twice. He was diagnosed with borderline personality disorder,
with the additional note that "[a]lcohol only complicates the
clinical picture." Father admitted drinking, at times to
excess. He admitted having brought police to his daughter's
day-care center two times. He admitted making numerous phone
calls, often abusive, to mother and to mother's counsel and
family. We find no error in the trial court's decision to deny
father's motion for joint custody.
Issue 14
Father sought the appointment of a guardian ad litem and a
court-appointed special advocate. The trial court has
discretionary authority to appoint a guardian ad litem upon its
determination that such appointment is necessary to protect the
best interests of a child. See Verrocchio v. Verrocchio, 16 Va.
App. 314, 319, 429 S.E.2d 482, 485 (1993). "The appointment of
a guardian ad litem is not necessary in every case but only in
those in which the court makes a factual determination that it
would be necessary to protect the interests of the child."
L.C.S. v. S.A.S., 19 Va. App. 709, 723, 453 S.E.2d 580, 588
(1995).
- 11 - The evidence before the trial court included psychological
reports on both parents and a home study on mother. The
Chesterfield-Colonial Heights Department of Social Services
tried unsuccessfully to schedule an interview with father and to
have father complete the paperwork necessary to conduct father's
home study. While father went forward without counsel, he
presented evidence, including witnesses. We find no indication
that the litigation was "one-sided" or that the trial court
erred by failing to appoint a guardian ad litem for the child.
Issue 15
The trial court overruled father's objection to the
testimony of the child's day-care teacher, stating that
in the best interest of the child, I'm going to try to hear some of this information. I may not make a decision today, but I'm going to try to hear the best interest of what to do with this child.
The teacher's testimony was relevant to the issues before the
court. She gave specific testimony concerning two incidents at
the day-care center in February and March 1998 when father
became upset that the child was not at the center and called the
police. The teacher also testified that during the February
incident, father smelled like alcohol. We find no abuse of
discretion in the trial court's decision to allow the teacher to
testify. While father contends that he would have called the
police officers as witnesses, he raises this contention for the
- 12 - first time on appeal, and we will not consider it. See Rule
5A:18.
Issue 17
For the reasons set out under Issue 6, we find no error in
the trial court's decision to grant a divorce on no-fault
grounds and to limit evidence relating to other alleged grounds
of divorce. The parties had sufficient opportunity to present
evidence concerning the best interests of the child. Pursuant
to husband's request, both parties underwent psychological
examinations and the results were reported to the court. Mother
also introduced evidence of father's prior conviction for
assaulting her. We find no merit in father's contention that he
was denied a full hearing.
Issues 19 and 23
Father alleged mother perjured herself in the criminal
proceedings and conspired to defraud the court. He presented no
evidence to support his assertion. Fraud must be pleaded with
particularity and established by clear and convincing evidence.
See Mortarino v. Consultant Eng'g Servs. Inc., 251 Va. 289, 295,
467 S.E.2d 778, 782 (1996). We find no error in the circuit
court trial judge's refusal to consider father's unsubstantiated
allegations of fraud arising in other courts.
Issue 24
Father contends that the trial court erred by refusing to
require mother to answer all interrogatories or to take as
- 13 - admitted his requests for admission. We find no indication that
father preserved these contentions for appeal. See Rule 5A:18.
Issue 22
Father failed to address this issue in his brief. We
therefore do not consider it further. "Statements unsupported
by argument, authority, or citations to the record do not merit
appellate consideration. We will not search the record for
errors in order to interpret appellant's contention and correct
deficiencies in a brief." Buchanan v. Buchanan, 14 Va. App. 53,
56, 415 S.E.2d 237, 239 (1992).
Upon consideration of the record and the proceedings before
this Court, we grant appellee's petition for attorney's fees
related to the appeal and remand to the trial court for
determination of an appropriate award.
Accordingly, the decision of the circuit court is summarily
affirmed and the case remanded for additional proceedings with
respect to attorney's fees.
Affirmed and remanded.
- 14 -