Fernando Cardozo v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 31, 2000
• Docket: 0084004
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata Argued at Alexandria, Virginia

FERNANDO CARDOZO MEMORANDUM OPINION * BY v. Record No. 0084-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK OCTOBER 31, 2000 LAURA DALESKI

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Jonathan C. Thacher, Judge

John D. Steffan (Steffan & Associates, on briefs), for appellant.

Scott A. Surovell (Surovell, Jackson, Colten & Dugan, on brief), for appellee.

In this domestic relations case, Fernando Cardozo (father)

appeals the trial court's child support order. On appeal, he

contends the trial court erred: (1) in its computation of his

gross income; (2) in failing to deviate from the presumptive

amount of child support; (3) in finding that he and his witnesses

were not credible; and (4) abused its discretion in awarding

attorney's fees. Finding no error, we affirm.

I. BACKGROUND

On appeal, we construe the evidence in the light most

favorable to mother, the prevailing party below, granting to

that evidence all reasonable inferences fairly deducible

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. therefrom. See Donnell v. Donnell, 20 Va. App. 37, 39, 455

S.E.2d 256, 257 (1995) (citing McGuire v. McGuire, 10 Va. App.

248, 250, 391 S.E.2d 344, 346 (1990)).

So viewed, the evidence established father and Laura

Daleski (mother) were never married. They had six children

together. Subsequently, father married and has two children

with his wife. Father paid child support to mother for their

six children pursuant to an order from the Juvenile & Domestic

Relations District Court of Fairfax County (juvenile court),

however, there have been historical and continuing arrearages.

In May 1998 one child began living with father, and a second

child was expected to join father's household in September 1999.

Due to this change in circumstances, father filed a motion to

modify child support in the juvenile court. Mother filed a

cross motion to modify child support based on an increase in

father's income. The juvenile court awarded mother an increase

to $905 per month, and father appealed.

Father and his wife started Cardozo Concrete, a jointly

owned company in which he owned 49% and his wife owned 51% of

the business. The business was operated out of the marital

home. The home had a value of between $170,000 and $173,000,

and each claimed to earn approximately $48,000 per year. Father

also listed income of $19,500 on his 1998 W-2 form. The records

of father and his wife show extensive personal use of a company

credit card including liquor purchases, groceries, entertainment

- 2 - and vacations. Father also bought several expensive cars, some

in his name and some in the name of the business.

At trial, father and his wife testified that their income

had not changed substantially and that their business was not

making a profit. The trial court found that the couple ran

their business like a "personal piggy bank" and blurred the

lines between personal and business income and expenses. The

trial judge found their testimony and that of their witnesses to

be wholly incredible and rejected it. He determined father's

gross income to be $5,280 per month from the available tax

records and other documentary evidence and ordered the

presumptive guideline amount of child support pursuant to Code

§ 20-108.2. He found no reason to deviate from the presumptive

amount and ordered father to pay $10,000 of mother's attorney's

fees.

II. CALCULATION OF FATHER'S INCOME

"Decisions concerning both [spousal and 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." Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d

875, 876 (1994). "The weight which should be given to evidence

and whether the testimony of a witness is credible are questions

which the trier of fact must decide." Luczkovich v. Luczkovich,

26 Va. App. 702, 715, 496 S.E.2d 157, 163 (1998) (citations

omitted).

- 3 - Father argues that the trial court erroneously included his

officer loans as income and failed to understand the testimony

regarding his K-1 tax form and officer loans. The record shows

that both father and father's accountant failed to explain the

way business loans to officers were handled or the basis for the

K-1 information. Father specifically evaded questions regarding

bookkeeping and stated his wife was his bookkeeper. In her

testimony, his wife said she was not that involved with the

books and was more a mother to his children than a bookkeeper.

Father and his accountant testified that it was rare that an

officer loan was repaid to the company.

Code § 20-108.2(C) defines "gross income" for the purposes of

calculating child support. It states "[g]ross income shall be

subject to deduction of reasonable business expenses for persons

with income from self-employment, a partnership or a closely

held business." The burden of proving that the business

expenses are reasonable falls on the person involved in the

business. See Code § 20-108.2(C). The record in the instant

case shows the trial court based its calculation of father's

gross income on the undisputed content of the bank records, IRS

and accounting records, and credit card statements. Father's

evidence was both inconclusive and contradictory, and we find no

error in the trial court's rejection of that evidence.

- 4 - III. DEVIATION FROM PRESUMPTIVE AMOUNT OF CHILD SUPPORT

Father next contends the trial court erred in failing to

consider his support of his two other children and deviate from

the guideline amount of child support. "A rebuttable

presumption exists that the amount derived from the guidelines,

Code § 20-108.2, is correct." Auman v. Auman, 21 Va. App. 275,

277, 464 S.E.2d 154, 155 (1995). Code § 20-108.1(B) states in

part:

In order to rebut the presumption, the court shall make written findings in the order, which findings may be incorporated by reference, that the application of such guidelines would be unjust or inappropriate in a particular case. The finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child: 1. Actual monetary support for other children, other family members or former family members[.]

The trial court, in response to a question from father's

attorney, stated he had taken the father's other obligations to

his two children into consideration when calculating father's

child support obligation. A trial court may consider payor's

obligation to additional children, but is not required to use

this as a basis for deviation or to give a dollar for dollar

- 5 - credit. The record discloses no error in the trial judge's

application of the guidelines.

IV. TRIAL COURT'S FINDING THAT FATHER AND HIS WITNESSES WERE NOT CREDIBLE

"The trial court's decision, when based upon credibility

determinations made during an ore tenus hearing, is owed great

weight and will not be disturbed unless plainly wrong or without

evidence to support it." Douglas v. Hammett, 28 Va. App. 517,

525, 507 S.E.2d 98, 102 (1998). In the instant case, father and

his witnesses made numerous inconsistent statements about the

accounting practices of the business, the profitability of the

business and the intermingling of business and personal

expenditures. Father's accountant was unaware of

inconsistencies on his preparation and submission of business

tax returns. Among other items, he claimed depreciation on

vehicles not owned by the corporation and could not explain his

80/20 split between personal and business use of the vehicles.

The evidence shows repeated intermingling of business and

personal expenses. Father, his wife and their accountant had

inconsistent explanations for myriad personal expenditures made

from business funds. The trial court determined that the

testimony of father and his witnesses was in direct conflict

with the uncontested documentary evidence and lacked

believability. Ample credible evidence supports this

determination.

- 6 - V. ATTORNEY'S FEES

Attorney's fees and costs may be awarded in a child support

modification case. Edwards v. Lowry, 232 Va. 110, 114, 348

S.E.2d 259, 262 (1986). An award of attorney's fees and costs

is within the sound discretion of the trial judge. Graves v.

Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). Father

was continually in arrears in child support; had a larger income

than mother; and was recalcitrant in providing discovery. We

find no abuse of discretion in the trial court's award of

attorney's fees to mother.

For the foregoing reasons, the order of the trial court

awarding child support and attorney's fees is affirmed.

Affirmed.

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