COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
NICHOLAS KOURAKOS MEMORANDUM OPINION * v. Record No. 0771-00-2 PER CURIAM OCTOBER 10, 2000 MARIA STYLIANOU
FROM THE CIRCUIT COURT OF HENRICO COUNTY L. A. Harris, Jr., Judge
(Nicholas Kourakos, pro se, on briefs).
(Maria Stylianou, pro se, on brief).
Nicholas Kourakos appeals from an order denying his motions
to modify his child support payments, to modify his child support
arrearage obligations, and to award him custody of his daughter.
Upon reviewing the record and the briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the judgment of the circuit court. See Rule
5A:27.
Background
On February 10, 1999, a judge of the Henrico County
Juvenile and Domestic Relations District Court ordered Kourakos
to pay child support in the amount of $877.84 per month to his
former wife, Maria Stylianou, who had custody of the parties'
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. two minor children. The judge further ordered Kourakos to pay
$703 per month to reduce an outstanding child support arrearage.
Although the order does not reflect the total arrearage, as of
July 7, 1998, the arrearage was $39,620.57.
Kourakos filed a timely appeal from the order, but he
withdrew the appeal on May 17, 1999. The circuit court's July
19, 1999 order recites that the appeal was withdrawn. On August
3, 1999, the circuit court's order denied Kourakos' motion to
rehear the issue of child support, finding that the motion was
"without merit."
On July 14, 1999, the juvenile court's order granted
Stylianou continuing custody of the parties' minor children.
Kourakos returned to juvenile court on August 16, 1999, and
moved for a reduction in his child support obligation "due to
continuing disability." Later, he petitioned for custody of his
daughter and moved the juvenile court to review the child
support arrearage. On December 21, 1999, a judge of the
juvenile court found no change in circumstances since the
circuit court's August 3, 1999 order and denied the motions
pertaining to the child support. The juvenile court judge also
denied Kourakos' petition seeking custody of his daughter.
Kourakos timely appealed these orders to the circuit court.
In his bill of particulars, Kourakos alleged that he was
physically disabled, unable to work, and could not meet his
child support obligations with his disability income. He also
- 2 - stated the basis for his attempt to seek custody of his
daughter.
The parties appeared before the circuit court on March 6,
2000. Stylianou represented that the juvenile court had imputed
income to Kourakos in the amount of $3,245.25 per month based on
his past income history. She further represented that this
figure did not include the value of any gifts given to Kourakos
by his current spouse. An Internal Revenue Service printout
that was admitted into evidence showed Kourakos' 1996 wage
income as $38,943. Stylianou noted that the monthly income
imputed to Kourakos equaled one-twelfth of his 1996 wage income.
When Kourakos began to explain why his child support
payments should be reduced, the trial judge ruled that Kourakos'
appeal of the arrearage order was invalid because he had not
posted an appeal bond. Kourakos did not contest this ruling.
He merely asserted that the child support obligation should be
reduced because his current wife had stopped providing him with
financial gifts, and he said, "that's my basis, sir, that this
help stopped." He also alleged that the support obligation was
too high compared with the wages imputed to him by the juvenile
court.
In support of his petition seeking custody of his daughter,
Kourakos testified that he was concerned for her well-being
because of the way Stylianou treated their children. He stated
that Stylianou had forced the older daughter out of the
- 3 - household when she was fifteen years old. He further testified
that Stylianou would lock their son out of the house if he came
home late and that Stylianou's inability to properly parent
their son had contributed to him becoming a juvenile delinquent.
The record contains three juvenile petitions that reflect
criminal charges that were lodged against the son in September
1999. Kourakos acknowledged that he had had virtually no
contact with the daughter for at least seven years. He also
admitted that she wanted no contact with him.
The trial judge found that Kourakos had failed to prove a
change in circumstances justifying a modification of the child
support obligation. The judge specifically found that Kourakos
had failed to establish that the juvenile court judge had
included gift income when imputing income to him. The trial
judge also denied the motion to change custody and awarded
Stylianou attorney's fees in the amount of $1,500.
Motion to Modify Arrearage Payments
Kourakos contends the trial judge erred in ruling that his
appeal of the juvenile court's order concerning his monthly
arrearage payment was invalid because he had not posted an
appeal bond. He asserts that the juvenile court never set an
appeal bond and that he was exempt from filing an appeal bond
because he was disabled.
Kourakos did not assert before the trial judge either of
the arguments he raises on appeal. Accordingly, Rule 5A:18 bars
- 4 - our consideration of this issue. "We will not consider for the
first time on appeal an issue that was not preserved in the
trial court." Martin v. Martin, 27 Va. App. 745, 752, 501
S.E.2d 450, 453 (1998) (en banc). This rule "applies equally to
both pro se litigants and those who are represented by counsel."
Newsome v. Newsome, 18 Va. App. 22, 24-25, 441 S.E.2d 346, 347
(1994). Moreover, the record does not reflect any reason to
invoke the good cause or ends of justice exceptions to Rule
5A:18. See Code § 16.1-296(H) (providing that "[i]n cases
involving support, no appeal shall be allowed until the party
applying for the same or someone for him gives bond, in an
amount and with sufficient surety approved by the judge or by
his clerk if there is one, to abide by such judgment as may be
rendered on appeal if the appeal is perfected or, if not
perfected, then to satisfy the judgment of the court in which it
was rendered").
Motion to Modify Child Support
"In a petition for modification of child support and spousal support, the burden is on the moving party to prove [by a preponderance of the evidence] a material change in circumstances that warrants modification of support." The petitioner must demonstrate a material change in circumstances from the most recent support award. The material change must relate to either the need for support or the ability to pay. "In the absence of a material change in circumstances, reconsideration of support . . . would be barred by principles of res judicata."
- 5 - Barton v. Barton, 31 Va. App. 175, 177-78, 522 S.E.2d 373,
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
NICHOLAS KOURAKOS MEMORANDUM OPINION * v. Record No. 0771-00-2 PER CURIAM OCTOBER 10, 2000 MARIA STYLIANOU
FROM THE CIRCUIT COURT OF HENRICO COUNTY L. A. Harris, Jr., Judge
(Nicholas Kourakos, pro se, on briefs).
(Maria Stylianou, pro se, on brief).
Nicholas Kourakos appeals from an order denying his motions
to modify his child support payments, to modify his child support
arrearage obligations, and to award him custody of his daughter.
Upon reviewing the record and the briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the judgment of the circuit court. See Rule
5A:27.
Background
On February 10, 1999, a judge of the Henrico County
Juvenile and Domestic Relations District Court ordered Kourakos
to pay child support in the amount of $877.84 per month to his
former wife, Maria Stylianou, who had custody of the parties'
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. two minor children. The judge further ordered Kourakos to pay
$703 per month to reduce an outstanding child support arrearage.
Although the order does not reflect the total arrearage, as of
July 7, 1998, the arrearage was $39,620.57.
Kourakos filed a timely appeal from the order, but he
withdrew the appeal on May 17, 1999. The circuit court's July
19, 1999 order recites that the appeal was withdrawn. On August
3, 1999, the circuit court's order denied Kourakos' motion to
rehear the issue of child support, finding that the motion was
"without merit."
On July 14, 1999, the juvenile court's order granted
Stylianou continuing custody of the parties' minor children.
Kourakos returned to juvenile court on August 16, 1999, and
moved for a reduction in his child support obligation "due to
continuing disability." Later, he petitioned for custody of his
daughter and moved the juvenile court to review the child
support arrearage. On December 21, 1999, a judge of the
juvenile court found no change in circumstances since the
circuit court's August 3, 1999 order and denied the motions
pertaining to the child support. The juvenile court judge also
denied Kourakos' petition seeking custody of his daughter.
Kourakos timely appealed these orders to the circuit court.
In his bill of particulars, Kourakos alleged that he was
physically disabled, unable to work, and could not meet his
child support obligations with his disability income. He also
- 2 - stated the basis for his attempt to seek custody of his
daughter.
The parties appeared before the circuit court on March 6,
2000. Stylianou represented that the juvenile court had imputed
income to Kourakos in the amount of $3,245.25 per month based on
his past income history. She further represented that this
figure did not include the value of any gifts given to Kourakos
by his current spouse. An Internal Revenue Service printout
that was admitted into evidence showed Kourakos' 1996 wage
income as $38,943. Stylianou noted that the monthly income
imputed to Kourakos equaled one-twelfth of his 1996 wage income.
When Kourakos began to explain why his child support
payments should be reduced, the trial judge ruled that Kourakos'
appeal of the arrearage order was invalid because he had not
posted an appeal bond. Kourakos did not contest this ruling.
He merely asserted that the child support obligation should be
reduced because his current wife had stopped providing him with
financial gifts, and he said, "that's my basis, sir, that this
help stopped." He also alleged that the support obligation was
too high compared with the wages imputed to him by the juvenile
court.
In support of his petition seeking custody of his daughter,
Kourakos testified that he was concerned for her well-being
because of the way Stylianou treated their children. He stated
that Stylianou had forced the older daughter out of the
- 3 - household when she was fifteen years old. He further testified
that Stylianou would lock their son out of the house if he came
home late and that Stylianou's inability to properly parent
their son had contributed to him becoming a juvenile delinquent.
The record contains three juvenile petitions that reflect
criminal charges that were lodged against the son in September
1999. Kourakos acknowledged that he had had virtually no
contact with the daughter for at least seven years. He also
admitted that she wanted no contact with him.
The trial judge found that Kourakos had failed to prove a
change in circumstances justifying a modification of the child
support obligation. The judge specifically found that Kourakos
had failed to establish that the juvenile court judge had
included gift income when imputing income to him. The trial
judge also denied the motion to change custody and awarded
Stylianou attorney's fees in the amount of $1,500.
Motion to Modify Arrearage Payments
Kourakos contends the trial judge erred in ruling that his
appeal of the juvenile court's order concerning his monthly
arrearage payment was invalid because he had not posted an
appeal bond. He asserts that the juvenile court never set an
appeal bond and that he was exempt from filing an appeal bond
because he was disabled.
Kourakos did not assert before the trial judge either of
the arguments he raises on appeal. Accordingly, Rule 5A:18 bars
- 4 - our consideration of this issue. "We will not consider for the
first time on appeal an issue that was not preserved in the
trial court." Martin v. Martin, 27 Va. App. 745, 752, 501
S.E.2d 450, 453 (1998) (en banc). This rule "applies equally to
both pro se litigants and those who are represented by counsel."
Newsome v. Newsome, 18 Va. App. 22, 24-25, 441 S.E.2d 346, 347
(1994). Moreover, the record does not reflect any reason to
invoke the good cause or ends of justice exceptions to Rule
5A:18. See Code § 16.1-296(H) (providing that "[i]n cases
involving support, no appeal shall be allowed until the party
applying for the same or someone for him gives bond, in an
amount and with sufficient surety approved by the judge or by
his clerk if there is one, to abide by such judgment as may be
rendered on appeal if the appeal is perfected or, if not
perfected, then to satisfy the judgment of the court in which it
was rendered").
Motion to Modify Child Support
"In a petition for modification of child support and spousal support, the burden is on the moving party to prove [by a preponderance of the evidence] a material change in circumstances that warrants modification of support." The petitioner must demonstrate a material change in circumstances from the most recent support award. The material change must relate to either the need for support or the ability to pay. "In the absence of a material change in circumstances, reconsideration of support . . . would be barred by principles of res judicata."
- 5 - Barton v. Barton, 31 Va. App. 175, 177-78, 522 S.E.2d 373,
374-75 (1999) (citations omitted).
As evidence of a change in circumstance, Kourakos proved
that his current wife was no longer giving him financial gifts.
The record is bereft of evidence, however, that such gifts were
ever considered by the juvenile court judge in establishing
Kourakos' support obligation. Proof challenging the
reasonableness of overall support payments did not constitute a
change in circumstances. Likewise, Kourakos' medical records
reflect that his alleged disability resulted from a May 1999
accident, which pre-dates the most recent support award.
Accordingly, the trial judge did not err when it denied
Kourakos' petition to reduce his child support obligation.
Custody
"A party seeking to modify an existing custody order bears
the burden of proving that a change in circumstances has
occurred since the last custody determination and that the
circumstances warrant a change of custody to promote the
children's best interests." Brown v. Brown, 30 Va. App. 532,
537, 518 S.E.2d 336, 338 (1999). In determining whether a
change in custody is in the best interest of a child, the trial
judge must consider the following factors:
[T]he relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional,
- 6 - intellectual and physical needs of the child;
* * * * * * *
The role which each parent has played and will play in the future, in the upbringing and care of the child;
[T]he relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child; [and]
The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference . . . .
Code § 20-124.3; see Brown, 30 Va. App. at 538, 518 S.E.2d at
338.
The record reflects that Kourakos absented himself from his
daughter's life for many years and that she wanted to have no
contact with him. He presented no evidence that her best
interests would be promoted by a change in custody or that there
had been a change in circumstances since the most recent custody
order warranting such a change. "Whether a change of
circumstances exists is a factual finding that will not be
disturbed on appeal if the finding is supported by credible
evidence." Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40,
41 (1986). Credible evidence supports the trial judge's refusal
to award Kourakos custody.
- 7 - Attorney's Fees
Kourakos did not object when the trial judge awarded
Stylianou attorney's fees. "No ruling of the trial court . . .
will be considered as a basis for reversal unless the objection
was stated together with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice." Rule 5A:18. The record
does not reflect any reason to invoke the good cause or ends of
justice exceptions to Rule 5A:18.
Additional Issues
Kourakos filed with his opening brief a motion to review or
amend the juvenile court's July 7, 1998 order. The record does
not reflect that Kourakos ever appealed that order and the
matter was not before the trial judge when he issued the March
20, 2000 order. Accordingly, we do not have jurisdiction over
that issue.
Stylianou filed a motion to dismiss, citing to various
defects in the filing of Kourakos' appeal. Because we affirm
the judgment in full, we do not reach the merits of Stylianou's
motion.
Stylianou, who appears on brief pro se, has requested
attorney's fees for matters relating to this appeal. Upon
consideration of the entire record in this case, we hold that
she is entitled to a reasonable amount of attorney's fees for
the motion filed by her counsel, and we remand for an award of
- 8 - costs and counsel fees incurred in this appeal by her counsel
for the motion. See O'Loughlin v. O'Loughlin, 23 Va. App. 690,
479 S.E.2d 98 (1996).
For the foregoing reasons, the judgment of the circuit
court is affirmed.
Affirmed.
- 9 -