Ronald P. Dick v. Jean A. Dick

• Court: Court of Appeals of Virginia
• Decided: October 30, 2001
• Docket: 0966012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Retired Judge Duff*

RONALD P. DICK MEMORANDUM OPINION ** v. Record No. 0966-01-2 PER CURIAM OCTOBER 30, 2001 JEAN A. DICK

FROM THE CIRCUIT COURT OF HANOVER COUNTY John Richard Alderman, Judge

(Fredrick S. Kaufman; Nachman & Kaufman, L.L.P., on brief), for appellant.

(John H. Goots; Chenault & Witmeyer, PLC, on brief), for appellee.

Ronald Dick contends the trial judge erred in: (1) finding

his minor child's need for private military education a material

change of circumstances; and (2) failing to reduce to writing the

deviation from the presumptive guidelines amount. Upon reviewing

the record and briefs of the parties, we summarily affirm the

decision of the trial court. See Rule 5A:27.

BACKGROUND

On May 24, 1994, the trial judge entered an order requiring

father to pay $100 per month in child support for the parties'

* Retired Judge Charles H. Duff took part in the consideration of this case by designation pursuant to Code § 17.1-400(D). ** Pursuant to Code § 17.1-413, this opinion is not designated for publication. son. Justin was born on July 3, 1988. On June 2, 2000, Jean

Dick, the mother, filed a motion to increase child support based

on a material change of circumstances. A written statement of

facts recites the evidence educed at a hearing on mother's

motion.

The evidence proved that the father has an annual salary of

$36,000 to $37,000 per year, and he receives military disability

of $188 per month. The mother earns between $94,000 and $95,000

annually.

The mother testified that she had experienced several

problems with their son during the 1997-98 school year, when he

was in the fourth grade. He exhibited an uncaring attitude; he

had stolen money from her purse to buy firecrackers; he had

problems arguing with children in the neighborhood; and he

received grades that were not consistent with his intellectual

ability. The evidence established that the son's grades greatly

improved while he was "under strict supervisory status at school

and receiving one-on-one teaching"; however, the school could

not offer that type of individualized structure "on a regular

basis." His teachers, counselor and mother made a "joint

decision" to look into private schooling. The mother said that

although she advised the father numerous times about their son's

problems and the need for private school, the father disagreed

for financial reasons. She also testified that the son was

- 2 - doing well at the military academy he now attends. He made "A's

and B's in every subject" and "had an excellent conduct rating."

The father testified that he was aware that his son had

been attending military school. He testified, however, that he

was not aware of any problems his son was having at school and

he had no input in the decision to enroll him in a military

school. The father admitted that his son's public school

performance had declined. He also indicated that his son

advised him that he was doing well at military school. The

statement of facts indicates the trial judge ruled, in part, as

follows:

After hearing the evidence and reviewing the factors enumerated in Solmond [sic] v. Ball, 22 Va. App. 385 (1996), specifically, that the school could not provide the one-on-one assistance that the child needed; the child's special emotional needs; and each parents [sic] ability to pay, the Court found that based upon the parties [sic] current income the [father] would owe a duty of child support in the amount of $210.00. However, the Court further found that a deviation was appropriate in this instance and that [father] would be responsible for 27% of the child's tuition, that being in the amount [of] $360.00. The Court ordered a total award of monthly support in the amount of $570.00.

The statement of facts also recites that the trial judge

recalled that "[n]o objections were noted by either party." The

father's attorney signed the final order underneath the word

"SEEN." No objections were noted or specified.

- 3 - "The 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 also Rule 5A:18. The purpose of this rule is to ensure that

the trial judge and opposing party are given the opportunity to

intelligently address, examine, and resolve issues in the trial

court, thus avoiding unnecessary appeals. See Lee v. Lee, 12

Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc); Kaufman

v. Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4 (1991).

The record does not indicate that the father raised any of the

present arguments in the trial court. He signed the order

"seen," without noting an objection. His arguments are

therefore procedurally barred on appeal by Rule 5A:18.

Moreover, the evidence proved the child was having problems

in public school that could be and were solved through private

schooling. The record also indicates that the trial judge

considered the factors in Solomond v. Ball, 22 Va. App. 385,

391, 470 S.E.2d 157, 160 (1996). Therefore, the record does not

reflect any reason to invoke the good cause or ends of justice

exceptions to Rule 5A:18. Accordingly, we summarily affirm the

order.

Affirmed.

- 4 -