Jonette A. Kondratenko v. Michael G. Earhart

• Court: Court of Appeals of Virginia
• Decided: August 31, 2010
• Docket: 0215104
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Alston and Senior Judge Coleman

JONETTE A. KONDRATENKO MEMORANDUM OPINION * v. Record No. 0215-10-4 PER CURIAM AUGUST 31, 2010 MICHAEL G. EARHART

FROM THE CIRCUIT COURT OF CULPEPER COUNTY John G. Berry, Judge

(Jonette A. Kondratenko, pro se, on brief).

No brief for appellee.

Jonette A. Kondratenko (mother) appeals a child support ruling. Mother argues that the trial

court erred by (1) denying her the ability to maintain the lifestyle that she and the child enjoyed

since the child’s birth; (2) ruling that the evidence presented did not justify a departure from the

child support guidelines when the evidence showed that mother put her career and education on

hold for the child’s best interests; (3) not considering the burden placed on the mother, who had

been out of the workforce for approximately three years, to find a job in an economy with a high

unemployment rate; (4) directing a witness to divulge information contrary to the child support

guidelines when the guidelines state that gross income shall not include child support received;

(5) not considering all of the relevant information and evidence for the best interests of the child;

(6) finding that its decision was not unjust or inappropriate when father provided a standard of

living with the knowledge that mother was staying at home to care for the child; (7) placing the

burden of proof on mother who did not file the appeal from the juvenile and domestic relations

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. district court; (8) not considering the child’s best interests, current circumstances, and standard of

living at the time of the trial; (9) suggesting that it was in the child’s best interests for a single,

stay-at-home mother, who temporarily gave up her career, to re-enter the workforce and place her

child with a babysitter or day care; (10) not considering that mother had no means to retain a lawyer

or qualify for assistance through legal aid to assist her with the trial; (11) holding a pro se litigant to

the same standards as a practicing attorney; (12) denying the child the standard of living that was

maintained for at least sixteen months prior to the trial, while mother stayed home with the child;

(13) not applying the ruling in Conway v. Conway, 10 Va. App. 653, 395 S.E.2d 464 (1990), and

allowing the child to share in the father’s prosperity; (14) denying the child the standard of living

that was established prior to the court proceedings when father’s income was $11,083 per month

and mother’s income was $0; (15) not awarding $2,000 per month in child support, considering

mother’s evidence; (16) finding that there was insufficient evidence to deviate from the child

support guidelines; (17) not considering all of mother’s evidence in support of a deviation from the

child support guidelines; (18) finding that father paid too much in July, August, September, and

October 2009 and awarded him a credit by allowing him to deduct $25 per month from his monthly

child support payment until the credit was eliminated; (19) finding that the evidence was insufficient

to deviate from the guidelines and thereby ordering child support pursuant to the guidelines

presumptive amount, even though mother was unemployed and staying at home to care for the

child; (20) not considering the unique circumstances of this case and permitting a deviation from the

child support guidelines; (21) not considering mother’s evidence and her inability to gain experience

after graduating from college because she stayed at home to care for her child, which was in his best

interests; and (22) denying mother’s motion to have missing information reviewed and entered into

the trial court’s records. Upon reviewing the record and opening brief, we conclude that this

-2- appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. See

Rule 5A:27.

BACKGROUND

Mother and Michael G. Earhart (father) have one child together. 1 The parties were never

married.

After the baby was born, mother worked part-time at Gold’s Gym and then tried to start

her own personal training business, but soon quit to stay home with her child. Mother was out of

the workforce for approximately three years at the time of the trial.

Father paid $2,500 and mother’s doctor’s fees while she was pregnant. In the spring of

2008, father offered to pay $350 to $400 twice a month for groceries and $1,400 per month for

rent.

On July 16, 2009, the juvenile and domestic relations district court issued a child support

order deviating from the child support guidelines and ordering father to pay $1,500 per month as

of July 1, 2009. Father appealed the ruling to the trial court. The trial court heard from both

parties. Mother sought a deviation from the child support guidelines and requested $2,000 per

month, in order to maintain the child’s standard of living. The trial court ruled that there was

insufficient evidence to support a deviation from the child support guidelines and ordered father

to pay $1,047.58 per month pursuant to the guidelines. The trial court’s order resulted in father

having overpaid for four months. Father received a credit of $25 per month until the

overpayment was reduced to zero. Mother timely noticed her appeal.

1 Mother has two other minor children, from a previous relationship, who reside with her. -3- ANALYSIS

Amount of child support

Mother argues that the trial court should have deviated from the child support guidelines.

She contends a deviation was in the child’s best interests because it would allow them to

maintain the same standard of living. Mother requested $2,000 per month in child support so

that she could continue to stay home and raise the child.

“[T]here shall be a rebuttable presumption in any judicial or administrative proceeding

for child support . . . that the amount of the award which would result from the application of the

guidelines set out in § 20-108.2 is the correct amount of child support to be awarded.” Code

§ 20-108.1(B). “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.” Id.

“The decision not to deviate from the guidelines is within the trial court’s discretion and

is to be determined upon consideration of the totality of the circumstances in each case.” Rinaldi

v. Dumsick, 32 Va. App. 330, 337, 528 S.E.2d 134, 138 (2000).

Here, the trial court found that the evidence presented did not justify “a departure from

the child support guidelines based upon the provisions contained in Va. Code § 20-108.1, the

best interests of the child, and each party’s ability to pay and found that the evidence was lacking

to render the application of the guidelines unjust or inappropriate . . . .” The record reflects that

the trial court considered the specific circumstances of the parties and declined to deviate from

the guidelines.

Mother argues that the trial court should have followed Conway, 10 Va. App. at 658, 395

S.E.2d at 466, wherein this Court stated, “In making an award, the guidelines set forth in Code

§ 20-108.2 should be viewed by the court as but one part of the equation, together with the

-4- particular facts and circumstances of each individual case, including the standard of living

established for the family during the marriage.” Although mother and father were not married in

this case, mother contends the parties established a standard of living for their child when father

consistently paid approximately $2,000 per month for more than one year. She asserts that their

child should share in father’s “prosperity.” Id. at 658, 395 S.E.2d at 466-67.

However, mother’s reliance on Conway is misplaced. In Conway, the trial court applied

the child support guidelines, and father sought a deviation downward from the guidelines

because he had been paying less than the guidelines for years although his income doubled. This

Court affirmed the trial court’s application of the guidelines because father did not show that the

guidelines amount was excessive or that the trial court acted unreasonably. Id. at 658-59, 395

S.E.2d at 467. In this case, mother did not prove that the child support guidelines were “unjust

or inappropriate.” Code § 20-108.1(B).

The trial court considered all of the evidence and declined to deviate from the child

support guidelines. Based on the record, we conclude that the trial court did not abuse its

discretion in deciding not to deviate from the child support guidelines.

Burden of proof

Mother argues that the trial court erred by placing the burden of proof on her and by not

including in the trial court’s record father’s petition for child support to show that he filed first in

the juvenile and domestic relations district court. Mother asserts that father filed a child support

petition before she did, and he appealed the juvenile and domestic relations district court order;

therefore, he should have had the burden of proof at the trial court level.

There is no indication in the record that there was any discussion about who had the

burden of proof in the trial court. A court reporter was not present, and the written statement of

facts did not reflect any discussion on the topic.

-5- Mother filed a motion with the trial court to include father’s petition for child support.

The trial court denied the motion at a hearing on April 15, 2010. No court reporter was present

at this hearing, and the written statement of facts did not include what transpired at this hearing.

An appellant has the responsibility to provide a complete record to the appellate court.

Twardy v. Twardy, 14 Va. App. 651, 658, 419 S.E.2d 848, 852 (1992) (en banc). Without a

complete record, we are unable to address mother’s questions presented.

Moreover, assuming without deciding that there was a discussion about who had the

burden of proof, the trial court did not err. The parties agreed that father’s income was $133,000

per year and that mother’s income was $0. Father argued that the child support guidelines

should apply, and mother sought a deviation. The child support guidelines are the presumptive

amount. Code §§ 20-108.1 and 20-108.2. Since mother sought to rebut the presumption, she

had to present evidence relating to the deviation factors in Code § 20-108.1. The trial court then

had to decide whether the evidence was sufficient to prove that application of the guidelines was

“unjust or inappropriate.” The trial court did not find that the evidence, based on the factors in

Code § 20-108.1, warranted a deviation from the guidelines. As stated above, the trial court did

not err in making this finding.

Child support for other children

Mother argues that the trial court erred in ordering her to state how much child support

she received for her other children. According to the written statement of facts, the trial court

overruled mother’s objection to the question of how much child support she received because she

included all of her family’s expenses, including her other children’s expenses, on her income and

expense statement.

On appeal, mother asserts the trial court incorrectly considered the other child support

figure in determining how much child support to award her for the child of these parties. There

-6- is no indication based on the record before us that mother preserved this issue at trial. We “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).

Moreover, even if mother had preserved the issue, the child support guidelines worksheet

attached to the court’s order does not include the child support received by mother for her other

two children. Therefore, the question presented would be moot.

Pro se

Mother argues that the trial court abused its discretion in holding her to the same standard

as a practicing attorney, although she was proceeding pro se. Mother did not present this

argument to the trial court. As stated above, we “will not consider an argument on appeal which

was not presented to the trial court.” Id.; see Rule 5A:18. Accordingly, Rule 5A:18 bars our

consideration of this question on appeal. Moreover, a litigant appearing pro se “is no less bound

by the rules of procedure and substantive law than a defendant represented by counsel.” Townes

v. Commonwealth, 234 Va. 307, 319, 362 S.E.2d 650, 657 (1987); see also Francis v. Francis, 30

Va. App. 584, 591, 518 S.E.2d 842, 846 (1999) (“Even pro se litigants must comply with the

rules of court.”).

Overpayment

Mother argues that the trial court erred in finding that father overpaid child support for

the months of July, August, September, and October 2009 and allowing father to deduct $25 per

month from the child support payment until the overpayment was reduced to zero. 2 Mother

asserts that since the trial court made the child support retroactive to July 1, 2009, it affected her

ability to meet the “basic needs of the child” by further reducing her child support payment by

2 The trial court found that father overpaid for four months, and the amount of the overpayment was $1,809.68.

-7- $25 per month. Mother contends the child support should have been based on contemporaneous

circumstances, including the fact that she had no income.

The juvenile and domestic relations district court ordered that father’s child support

obligation would be $1,500 per month as of July 1, 2009. On appeal, the trial court ordered that

the new child support obligation of $1,047.58 per month would be effective as of July 1, 2009.

Since father paid $1,500 for July, August, September, and October 2009, he was entitled to a

credit for the overpayment.

“Liability for support shall be determined retroactively for the period measured from the

date that the proceeding was commenced by the filing of an action with any court provided the

complainant exercised due diligence in the service of the respondent . . . .” Code § 20-108.1(B);

see also Cirrito v. Cirrito, 44 Va. App. 287, 309-10, 605 S.E.2d 268, 278-79 (2004).

The trial court followed the statutory mandate and did not err in ordering the

commencement date of the child support as of July 1, 2009.

CONCLUSION

For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.

Affirmed.

-8-