Thomas Stokes Grymes, Jr. v. Robin L. Grymes

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Lemons

THOMAS STOKES GRYMES, JR. MEMORANDUM OPINION * v. Record No. 1185-99-2 PER CURIAM OCTOBER 26, 1999 ROBIN L. GRYMES

FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge

(Murray J. Janus; Deanna D. Cook; Bremner, Janus & Cook, on brief), for appellant.

(James B. Thorsen; Thorsen, Marchant & Scher, L.L.P., on brief), for appellee.

Thomas Stokes Grymes, Jr. and Robin L. Grymes were divorced

in 1996. The father appeals the decision of the Henrico County

circuit court dated May 18, 1999 related to custody, support and

attorney's fees. He contends that the trial court erred by: (1)

failing to change physical custody of the parties' children

despite evidence that the mother violated the current visitation

order and engaged in behavior designed to keep the children from

having a positive relationship with the father; (2) failing to

appropriately consider Code §§ 20-124.3 and 20-108 when reviewing

his motion to change custody; (3) "affirming" the juvenile and

domestic relations district court's decision concerning spousal

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. support rather than reviewing the matter de novo; (4) failing to

hold the mother in contempt of court; (5) failing to impute income

to the mother for purposes of calculating spousal and child

support; and (6) awarding the mother attorney's fees. Upon

reviewing the record and briefs of the parties, we conclude that

this appeal is without merit. Accordingly, we summarily affirm

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

Evidence was heard by the trial court in two ore tenus

hearings. The parties agreed to use district court transcripts

for certain witnesses' testimony.

Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.

Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App.

15, 20, 348 S.E.2d 13, 16 (1986).

Motion to Change Physical Custody

The father contends that the trial court erred by failing

to change the physical custody of the parties' two boys to him.

He also contends that the mother repeatedly violated the current

visitation order. The trial court found that the father failed

to prove a change in circumstances justifying a change in

custody. We affirm.

- 2 - As the party seeking a modification of the existing custody

order, father bore the burden to prove "'(1) whether there has

been a [material] change in circumstances since the most recent

custody award; and (2) whether a change in custody would be in

the best interests of the child.'" Wilson v. Wilson, 18 Va.

App. 193, 195, 442 S.E.2d 694, 696 (1994) (quoting Visikides v.

Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986)). See Keel v.

Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983). "In matters

concerning custody and visitation, the welfare and best

interests of the child are the 'primary, paramount, and

controlling considerations.'" Kogon v. Ulerick, 12 Va. App.

595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). The

trial court is vested with broad discretion to make the

decisions necessary to safeguard and promote the child's best

interests, and its decision will not be set aside unless plainly

wrong or without evidence to support it. See Farley v. Farley,

9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990).

The father produced evidence of several confrontations

between the parties as evidence weighing against the mother's

continued custody of the boys. The father contended below and

on appeal that, under Code § 20-124.3(6), the trial court was

required to consider whether the mother failed to "actively

support the [children's] contact and relationship with the other

parent" and failed to "cooperate in matters affecting the

[children]." The father also relied on Code § 20-108 which

- 3 - provides, in part, "[t]he intentional withholding of visitation

of a child from the other parent without just cause may

constitute a material change of circumstances justifying a

change of custody in the discretion of the court."

The trial court found that the father failed to prove that

there was a change in circumstances justifying a modification in

custody. While the trial court found that there had been "some

unfortunate confrontations" between the father, his wife, and

the mother, "[t]ragically some . . . in front of the children or

directly impact on the children," it found that the incidents

"[did] not rise to the level of supporting a change of custody."

The trial court did not attribute responsibility for the

confrontations to either. The mother was, however, directed not

to interfere with the father's access to the boys' school

activities.

The father conceded below that there was no evidence that

mother was "a bad mother per se." Our review of the record

supports the trial court's conclusion that nothing warranted a

change in the current custody arrangement. Because the trial

court's decision, based upon the testimony heard ore tenus, was

supported by the evidence and was not an abuse of discretion, we

affirm.

Appeal De Novo

The father contends that the trial court erred by

"affirming" the decision of the juvenile court increasing the

- 4 - monthly spousal support award by $750, rather than hearing the

evidence de novo. See Code § 16.1-296(F). While the trial

court noted in an opinion letter that he was "affirming" the

award of the juvenile court, it is clear that the court made a

specific determination based upon the evidence produced at the

hearing and the increase in the father's earnings since the last

support determination. The father points to nothing other than

the wording of the letter to indicate that the trial judge

applied an erroneous, deferential standard of review. We find

no reversible error.

Contempt of Court

to find mother in contempt of court for repeatedly violating the

visitation order. "A trial court 'has the authority to hold

[an] offending party in contempt for acting in bad faith or for

willful disobedience of its order.'" Alexander v. Alexander, 12

Va. App. 691, 696, 406 S.E.2d 666, 669 (1991) (citation

omitted). Whether a party is in contempt is a matter left to

the discretion of the trial court, whose decision "we may

reverse . . . only if we find that it abused its discretion."

Barnhill v. Brooks, 15 Va. App. 696, 704, 427 S.E.2d 209, 215

(1993).

The evidence demonstrated unquestionably that the parties

have had difficulties communicating in the past. However, the

trial court did not hold the mother solely responsible for those

- 5 - difficulties. The trial court's factual determinations are

supported by credible evidence. Therefore, we cannot say that

the trial court abused its discretion.

Imputation of Income

The father also contends that the trial court erred by

failing to impute income to the mother for purposes of

calculating spousal and child support. We find no error.

When calculating child support, income may be imputed to a

parent "who is voluntarily unemployed or voluntarily

under-employed" if the trial court determines that it is

appropriate under the circumstances of the case. See Code

§ 20-108.1. The parties' older son is autistic. He was

described as "high functioning," but required special education

classes at school. Witnesses testified that his behavior and

independence had improved as he matured, but there was evidence

that, in the past, the mother was called to school at

unpredictable times when problems arose. While the father

presented evidence that mother could earn $20,000 to $25,000 a

year, his vocational expert admitted that he did not consider

that the mother might require greater flexibility in her work

environment due to the current needs of the parties' son. The

expert also admitted that he relied on the father's

representation that childcare would be available for the

children after school, although there was no evidence that such

care was actually in place. Furthermore, the evidence also

- 6 - showed that, by agreement of the parties, the mother did not

work to any significant extent during the parties' marriage

following their children's birth.

The trial court found that "it is important for [the older

son] that [mother] be available to him for the foreseeable

future." Based upon the evidence concerning the current

circumstances and the needs of the parties' children, we find no

error in the trial court's refusal to impute income to the

mother for purposes of child support calculations.

Similarly, "[a] court may under appropriate circumstances

impute income to a party seeking spousal support." Srinivasan

v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990).

Code § 20-107.1(E)(9) requires the trial court to consider the

"earning capacity, including the skills, education and training

of the parties and the present employment opportunities for

persons possessing such earning capacity" when determining

spousal support. As noted above, the trial court found that it

was important under the current circumstances for the mother to

be available for the parties' autistic son. Therefore, we find

no error in the trial court's decision that the evidence did not

warrant an imputation of income to the mother for purposes of

spousal support.

Attorney's Fees

An award of attorney's fees is a matter submitted to the

sound discretion of the trial court and is reviewable on appeal

- 7 - only for an abuse of discretion. See Graves v. Graves, 4 Va. App.

326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award

of counsel fees is reasonableness under all the circumstances.

See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162

(1985). It is undisputed that the father's income greatly exceeds

that of the mother. Based on the issues involved and the

respective abilities of the parties to pay, we cannot say that the

award of $2,000 in attorney's fees to the mother was unreasonable

or that the trial court abused its discretion in making the award.

Accordingly, the decision of the circuit court is summarily

affirmed.

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