Pedro F. Becerra-Cely v. Judy Amick-Becerra

• Court: Court of Appeals of Virginia
• Decided: April 15, 1997
• Docket: 1798961
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton Argued at Norfolk, Virginia

PEDRO F. BECERRA-CELY MEMORANDUM OPINION * v. Record No. 1798-96-1 BY JUDGE JOSEPH E. BAKER APRIL 15, 1997 JUDY AMICK-BECERRA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Kenneth N. Whitehurst, Jr., Judge James A. Evans (Dinsmore, Evans & Bryant, on brief), for appellant.

Paul M. Lipkin (Goldblatt, Lipkin & Cohen, P.C., on brief), for appellee.

Pedro F. Becerra-Cely (husband) appeals from a decree of

divorce entered by the Circuit Court of the City of Virginia

Beach (trial court). Husband contends that the trial court erred

in granting Judy Amick-Becerra (wife) sole custody of their minor

child, and in limiting husband's visitation such that he may not

have overnight visitation with their child. Husband further

asserts that the trial court erred in awarding wife $446 monthly

child support and in holding that husband was in arrears in

support payments in the sum of $19,246.

As the parties are familiar with the record, we recite only

those facts necessary to an understanding of our opinion. The

judgment of the trial court is presumed correct, and the burden

is on the party alleging reversible error to show by the record * Pursuant to Code § 17-116.010 this opinion is not designated for publication. that reversal is the remedy to which he or she is entitled.

Steinberg v. Steinberg, 11 Va. App. 323, 326, 398 S.E.2d 507, 508

(1990). We will not set aside the trial court's judgment unless

the judgment is plainly wrong or without evidence to support it.

Simmons v. Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199

(1986).

I. and II. Custody and Visitation

The parties married on July 13, 1982 and separated on August

31, 1994. The record establishes that husband was having an

adulterous affair with Melissa Gavrish during the parties'

marriage. Gavrish gave birth to a child by husband and was

pregnant by him with a second child at the time of the parties'

divorce. The trial court found that husband committed adultery,

and the record supports that finding. Two children were born of the parties' marriage, one having

died after the parties separated. Sole custody of the surviving

child, age nine, was awarded to wife with the right of reasonable

visitation to husband; however, husband was denied overnight

visitation. The record discloses that husband intended to move

to Ireland with Gavrish and the children born of her affair with

husband. In matters of custody and visitation, the best

interests of the custodial child are always paramount and within

the sound discretion of the trial court. The trial court's

decision thereon will not be reversed in the absence of a showing

of abuse of discretion. Under the facts contained in this

- 2 - record, no abuse of discretion has been shown.

III. Child Support

In computing the amount of child support, the trial court

accepted the commissioner's report, which included a guideline

worksheet that determined husband's monthly earnings to be

$3,583, and accordingly ordered monthly support of $446. 1 The

record does not support the trial court's finding with respect to

husband's monthly earnings. The last annual earnings of husband

shown by this record are approximately $27,000 which he was not

earning at the time this matter was heard below. The only monies

shown by the record to have been received by husband thereafter

were annual student loans from the "federal government" in the

sum of $36,000, which the record further discloses must be repaid

by husband. That repayable loan may not be imputed as income to

husband. Accordingly, we reverse the trial court's finding

relative to monthly support payments and remand this cause for

further consideration of that issue. At oral argument, husband conceded that in making an

appropriate support award it may not be error to impute previous

annual income based upon previous years in which actual earned 1 Wife argued that the trial court's finding of fact that husband earned $26,950 during his last year of full employment justifies the amount $446 in monthly support. While the trial court did find that husband earned $26,950 during his last year of full employment, it specifically stated that the amount of support was determined based upon an imputed income to husband of $43,000 ($3,583 per month). This sum included a $36,000 loan obtained by husband and a $7,000 loan for which husband applied.

- 3 - income was shown.

IV. Arrearages

Prior to their separation, on December 31, 1993, the parties

executed a Final and Permanent Separation and Property Settlement

Agreement (PSA). In this appeal, we discuss only the provisions

in the PSA concerning custody and support for the child. As to

child support, the PSA provided as follows: 9. Child Support. Child support shall be paid by the parent who does not have primary physical custody of the children to the parent who has primary physical custody at the time of the payment commencing on January 1, 1994 in the amount of $__________ per month. Husband is currently in medical school and has minimal income, but is expected to contribute to child support based upon what income he does have. . . .

As can be seen, the dollar amount was left blank; however, in the

margin opposite paragraph 9, the words "house mortgage payment"

were handwritten and initialed by the parties. The record

clearly discloses that the amount of that monthly payment was

$931.64.

At the time the PSA was executed, the parties were living

together in the same house with their two children. 2 They

continued to live together for an additional eight months,

apparently jointly operating three separate Montessori schools

from which they received income. Thus, neither party had

exclusive "primary custody" of the children until they separated 2 One child died in an accident prior to the entry of the final decree of divorce from which this appeal emanates.

- 4 - on August 31, 1994. Until August 1994, husband paid $931.64 each

month to wife. Notwithstanding that wife has continually

retained "primary custody" of the surviving child, husband

thereafter did not make that monthly payment.

On April 13, 1995, wife instituted a divorce suit against

husband. A pendente lite hearing was held in the trial court on

April 28, 1995. We were not provided a transcript of that

hearing and neither counsel for the parties in this appeal was

present at the pendente lite hearing. A temporary support decree

was entered which gave wife custody of the child and ordered

husband to pay wife $125 per month beginning May 1, 1995 for

support of the child. 3 The order recites that the support award

is based on husband's income of $250 per month and wife's monthly

income of $1,333.

The pendente lite order further provided that "[n]o support

arrearages exist at this time." The order stated that the

findings were predicated on "having considered the testimonial

and documentary evidence presented his [sic] date"; however,

neither the reason for the finding of no arrearages nor the

evidence considered in making the finding are in the record

before us. The order contained a further provision that as the

$125 per month support obligation becomes due and is unpaid, it

thereby "creates a judgment by operation of law." Upon familiar

3 The trial judge who entered the pendente lite order was not the judge who entered the final divorce decree.

- 5 - principles, the order is presumed correct. Steinberg, 11 Va.

App. at 326, 398 S.E.2d at 508.

At trial, wife requested that the trial court enter a

judgment for "arrearages." She asserted that husband owed her

for the monthly payments described in the margin of paragraph 9

of the PSA which husband had not paid since July 1994. Wife's

assertion disregards the trial court's finding in the pendente

lite order that as of April 28, 1995, there was no arrearage. In

addition, the pendente lite order established that husband's support obligation was $125 per month. That order may not be

retroactively modified. See Code § 20-108; see also Cofer v.

Cofer, 205 Va. 834, 140 S.E.2d 663 (1965); Taylor v. Taylor, 10

Va. App. 681, 394 S.E.2d 864 (1990).

At the hearing before the commissioner, the PSA was

presented and marked P-1. Neither party wanted the PSA to be

incorporated into the final decree precisely as that document was

written. Husband wanted only the PSA provisions pertaining to

custody and visitation incorporated into the final decree and

objected to all other provisions. Wife wanted all of the PSA

provisions incorporated into the final decree except for the

custody and visitation provisions. In addition, wife wanted a

judgment for arrearages beginning with the payment due under the

PSA in August 1994. In its final decree of divorce, the trial

court confirmed the commissioner's report, granted wife a divorce

on the ground of husband's adultery, dismissed husband's

- 6 - cross-bill, and dissolved the bonds of matrimony between the

parties. It affirmed, ratified and incorporated the PSA in part,

as it is authorized by law to do, see Frye v. Swarting, 4 Va.

App. 173, 178-79, 355 S.E.2d 342, 344-45 (1987); Rodriguez v.

Rodriguez, 1 Va. App. 87, 90, 334 S.E.2d 595, 597 (1985), and

directed the parties to comply with the portions incorporated by

use of the following paragraph: Except as to the matters dealing with Veronica's custody and support, the Agreement, which is filed with the papers in this cause, be and the same is hereby affirmed, ratified and incorporated as a part of this decree as if fully set forth herein and the parties are directed to comply with same.

Having specifically excluded that portion of the PSA upon which

wife bases her claim of arrearages, the trial court was without

jurisdiction to render a judgment concerning the excluded

provisions. 4 The Supreme Court in Shoosmith v. Scott, 217 Va. 789, 232 S.E.2d 787 (1977), distinguished the effect of a divorce decree that approves a contract between the parties without specifically incorporating the contract or ordering the husband to perform its obligations, and a divorce decree that specifically incorporates the contract or orders the husband to perform its obligations. In the former, the decree is an approval of a private contract and may not be enforced in the divorce suit, whereas in the latter situation, the court may enforce the agreement through its contempt powers. 4 As aforenoted, the trial court is without authority to modify its previous orders (here the pendente lite order) retroactively. Cofer, 205 Va. at 839, 140 S.E.2d at 666-67; Taylor, 10 Va. App. at 683, 125 S.E.2d at 865-66.

- 7 - Rodriguez, 1 Va. App. at 90, 334 S.E.2d at 597. Here, the

portion of the PSA containing the support provisions was excluded

from the final divorce decree. Furthermore, no order in this

record directs husband to comply with the contract support

provision. Thus, the support provision constituted a private

contract between the parties and "may not be enforced in the

divorce suit." Id. McCaw v. McCaw, 12 Va. App. 264, 403 S.E.2d

8 (1991), relied upon by wife, is not contrary to this

conclusion. Accordingly, the trial court was without

jurisdiction to award a judgment on the portion of the PSA it had

not approved or with which it had not ordered husband to comply. For the reasons stated, the judgment of the trial court is

reversed and remanded for such further action as may be warranted

that is not inconsistent with this opinion. Affirmed in part, reversed in part, and remanded.

- 8 -