COURT OF APPEALS OF VIRGINIA
Present: Judge Humphreys, Senior Judge Willis and Retired Judge Rosenblatt∗
Argued at Alexandria, Virginia
FRANK S. MULLIN, III
OPINION BY
v. Record No. 1601-04-4 JUDGE ROBERT J. HUMPHREYS
MARCH 22, 2005
SHIRLEY N. MULLIN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge
Laurence J. Tracy for appellant.
Marcia M. Maddox (Katharine W. McGregor; Law Office of
Maddox, Cole & Miller, P.C., on brief), for appellee.
Appellant Frank S. Mullin (“father”) appeals from an order directing him to continue
paying child support to appellee Shirley N. Mullin (“mother”). Father contends that the trial
court prematurely found that, because their child, M.M., is severely and permanently disabled,
father should be liable for continuing child support after M.M. graduates from high school.
Father also argues that the trial court abused its discretion in awarding attorney’s fees, erred in
admitting an exhibit listing M.M.’s out-of-pocket medical expenses, and erred in ordering father
to reimburse mother for a portion of their children’s out-of-pocket medical expenses. For the
reasons that follow, we affirm, and we also award mother the cost of her attorney’s fees for this
appeal.
∗
Retired Judge Alan E. Rosenblatt took part in the consideration of this case by
designation pursuant to Code § 17.1-400(C).
I. BACKGROUND
In December 1992, mother and father divorced. The parties’ divorce decree ordered
father to pay spousal support and child support for their two minor children, M.M. and S.M., and
awarded sole custody of the children to mother. On May 25, 2000, the trial court entered a
consent order terminating spousal support and increasing the amount of child support for M.M.
and S.M. The consent order, made effective June 15, 2000, ordered father to pay $1,600 a month
in child support and required father to provide health insurance for the children. The consent
order also indicates that mother “shall be responsible for any out of pocket uninsured medical
expenses not to exceed $200 per month.” Finally, the order provides that child support “shall
continue to be paid for any child who is (i) a full-time high school student, (ii) not
self-supporting and (iii) living in the home of the party seeking or receiving child support until
such child reaches the age of nineteen or graduates from high school, whichever first occurs.”
In November 2002, father lost his job and, without obtaining a court order, reduced his
child support payments to $800 a month. Father continued to provide health insurance for the
children until January 2003. Mother paid for the children’s health insurance from February 2003
until October 2003, when she lost her job. After she lost her job, mother continued to provide
the children’s health insurance through a COBRA plan.
On March 19, 2004, father filed a motion to establish child support arrears and to modify
the existing child support arrangement, asserting in his pleading that both parties had lost their
jobs and child support arrears were in dispute.
On March 25, 2004, the Virginia Department of Social Services Division of Child
Support Enforcement (“DCSE”) filed a petition, seeking to suspend father’s driver’s license
based on his failure to pay child support. On April 13, 2004, the DCSE also filed a motion for a
rule to show cause, asserting that father “accrued child support arrears of $12,974.00 from June
-2-
12, 2000 through March 31, 2004, including interest . . . .” DCSE requested that the court
“[e]stablish a payment plan on the arrears,” hold father “in civil contempt of Court for his failure
to pay child support as ordered by this Court,” and “impose a jail sentence.”
The trial court entered a rule to show cause against father on April 20, 2004, directing
father to appear in court to show “why he should not be held in civil contempt of this Court for
his alleged failure to comply fully with the terms of the Consent Order entered by this Court on
May 25, 2000.”
On April 22, 2004, mother filed a separate motion seeking to increase child support and
determine child support arrears. In support of this request, mother alleged that she “regularly
incurs uninsured medical expenses for the children well over $200 per month” because “[b]oth
children suffer from ‘Multiple Hereditary Exostoses.’”1 In the same motion, mother also
requested continuation of child support for M.M. pursuant to Code § 20-124.2(C). Mother noted
that M.M. would “attain the age of 18 prior to the scheduled hearing of May 13, 2004,” but that
he would “continue to be a high school student, residing in his Mother’s home while being
supported by his parents, until his graduation from high school in June of 2005.” Mother also
alleged that M.M. “suffers from a debilitating hereditary illness . . . which causes multiple
abnormal bone growths, disabling motility problems and chronic, severe pain.” Mother
concluded that an award of continuing support would be justified under Code § 20-124.2(C)
because M.M. “has a chronic and life-long condition which causes him a severe and permanent
disability, and he is expected to remain in the Mother’s home, unable to live independently or
support himself.”
1
Mother also suffers from this disease.
-3-
In her prayer for relief, mother asked the court to issue a rule to show cause, require
father “to immediately satisfy all arrears of child support,” “reimburse [] Mother for all of her
payments for health care insurance,” “reimburse [] Mother for any amount that [she] has paid in
excess of her $200 monthly share for uninsured health care expenses for the minor children,”
recalculate and adjust father’s child support obligation, continue father’s child support obligation
for M.M. “beyond the age of 18 for so long as [M.M.] is eligible as a disabled child,” and award
mother her attorney’s fees and costs.
In response to mother’s motion, a second rule to show cause was issued against father on
April 27, 2004. The trial court scheduled a hearing on the pending motions and rules to show
cause for May 13, 2004.
By the date of the hearing, father owed a total of $14,670 in child support arrears. On the
morning of the hearing, however, father tendered $14,670 to the DCSE, and the DCSE dismissed
its petition and motion for a rule to show cause. The trial court conducted the scheduled ore
tenus hearing immediately following father’s payment to DCSE.
A. M.M.’s Physical Disability
According to mother’s testimony, M.M. suffers from “multiple hereditary exostosis,” a
disease that creates large bone growths (or “tumors”), resulting in scarring, fatigue, potential
nerve damage, and a decreased ability to process protein and sugar. Because of the disease,
M.M. has had eight to nine surgeries, and he presently has at least twelve additional bone tumors
in his legs. The tumors in his legs will require, at minimum, four additional surgeries to correct.
M.M. also has about ten more tumors in his pelvic area, a “permanent disability” of his right
arm, and “[s]mall movements cause him regular pain under his left arm, and that causes his hand
to go numb.” At present, M.M. is being treated by five different physicians.
-4-
Mother testified that M.M. currently attends a “Special Governor’s School” at Stafford
High School. The Governor’s School is “an accelerated course series for teenagers” that
provides college-level courses for high school students. M.M., who stopped physically attending
school in March 2004, is currently on a “homebound” program administered by the school
system. Under this program, a tutor comes to M.M.’s home “two days a week for two hours.”
Mother testified that M.M. is currently “incapable of going to school” because of his “pain
level.”
Mother also noted that the Stafford County school system first classified M.M. as a
medically disabled student at the beginning of his junior year. Mother testified that his disability
rating is “variable” because “some days he can almost write, and some days he can’t write at all.
Some days he can walk. Some days he can’t walk at all.” M.M. did not have the qualifications
necessary to graduate in the spring of 2004. He will turn nineteen in April of 2005, before his
scheduled graduation in the spring of 2005.
B. Evidentiary Rulings
During the hearing, the trial court admitted into evidence a chart marked as Exhibit 2,
which indicates that mother’s total cost of providing health insurance for the children from
November 2002 through May 2004 equaled $7,715.10. The court also admitted a chart marked
as Exhibit 3, which indicates that, excepting her $200 per month obligation, the total
out-of-pocket medical expenses incurred by mother between May 25, 2000 and May 2004
equaled $8,500.05. Father did not object to the admission of either of these exhibits.2
2
When mother moved to admit the exhibits into evidence, father merely responded
“Subject to cross-examination, Your Honor.” This response is not equivalent to an objection to
the admissibility of the exhibits.
-5-
Mother also sought to introduce into evidence Exhibit 9, a one-page exhibit titled
“[M.M.]’s recurring monthly uninsured extraordinary medical costs.” The exhibit outlines the
recurring, out-of-pocket medical costs associated with M.M.’s pain management, including the
cost of his medical appointments, allergy shots, pain medications, and trips to the Shriner’s
hospital in Philadelphia to meet with his surgeons. The figures incorporated into the chart
indicate that mother spends approximately $623 every month in out-of-pocket medical expenses
for M.M. Although father objected to Exhibit 9 “based [] on lack of foundation and hearsay,”
the trial court overruled his objection and admitted the exhibit.
The trial court also admitted into evidence Exhibit 10, a chart delineating the attorney’s
fees incurred by mother. According to Exhibit 10, mother incurred $7,944.50 preparing for the
May 13 hearing on the motions and rules to show cause.
C. The Trial Court’s Ruling
By order dated June 10, 2004, the trial court ordered father to pay mother: (1) $7,162 as
reimbursement for the health insurance she provided for the children between October 2002 and
May 2004,3 (2) $8,500.10 as reimbursement for the out-of-pocket medical expenses she incurred
between May 2000 and May 2004, and (3) $7,547.27 in attorney’s fees. The trial court also
ordered father to continue paying child support for M.M. after M.M.’s high school graduation,
reasoning that M.M. is severely and permanently physically disabled, is unable to live
independently and support himself, and resides with a parent. In support of this ruling, the trial
court noted that,
From the description, which is uncontradicted on [M.M.]’s
condition, it is a permanent illness. I have heard nothing to suggest
that there is a cure for this, or that he is on his way to a cure. He is
3
The trial court subtracted the cost of providing insurance during December 2002 and
January 2003 from the $7,715.10 figure provided by mother, reasoning that the children were
still covered by father’s insurance during that sixty-day period.
-6-
afflicted by this as is his mother, which is an indication it doesn’t
go away when your growth spurt ends. And I do find it to be
severe, tumors all over your body that create debilitating pain to
require multiple surgeries. If that’s not a definition of severe, I
don’t know what is. So I find both severe and permanent. I don’t
find it is a mental disability . . . but certainly I see it as a physical
disability.
The trial court also found that M.M. was “unable to live independently and support himself,”
reasoning that, “[g]iven his condition, he can’t even go to school for the full day. I certainly
don’t see how he can live independently and support himself.” Accordingly, the court concluded
that M.M.’s condition satisfied each of the criteria contained in Code § 20-124.2(C). The trial
court also noted that its ruling was not permanent, reasoning that M.M.’s condition “may become
more of a manageably chronic condition.” The court further observed that, “if [M.M.] goes off
to college and lives on his own and is able to work part-time,” father would be free “to come
back to court and say that there has been a change that should leave the court to reach a different
result.”
Finally, the court modified the existing child support arrangements, ordering father to pay
mother $810 per month for child support and an additional $300 per month to reimburse mother
for one-half of the cost of the children’s health insurance. The court also ordered that, in the
future, the parties should “equally pay for all of the children’s health related costs not covered by
insurance.” Father appeals.
II. ANALYSIS
On appeal, we view the evidence in the light most favorable to mother, the party
prevailing below. Petry v. Petry, 41 Va. App. 782, 785-86, 589 S.E.2d 458, 460 (2003);
Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999). Thus, we will
“discard the evidence of [father] which conflicts, either directly or inferentially, with the
evidence presented by [mother] at trial.” Petry, 41 Va. App. at 786, 589 S.E.2d at 460.
-7-
Also, when a trial court hears evidence at an ore tenus hearing, its factual findings are
entitled to great weight and will not be disturbed on appeal unless plainly wrong or without
evidence to support them. Wheeler v. Wheeler, 42 Va. App. 282, 288, 591 S.E.2d 698, 701
(2004); see also Ferguson v. Grubb, 39 Va. App. 549, 557, 574 S.E.2d 769, 772 (2003) (noting
that, on appeal, the trial court’s ruling is “peculiarly entitled to respect for [it] saw the parties,
heard the witnesses testify and was in closer touch with the situation than the [appellate] Court,
which is limited to a review of the written record” (internal quotations omitted)). Moreover,
there is a presumption on appeal that the trial court thoroughly weighed all the evidence,
considered the statutory requirements, and made its determination based on the child’s best
interests. Brown v. Spotsylvania Dept. of Social Servs., 43 Va. App. 205, 211, 597 S.E.2d 214,
217 (2004).4
A. Continuation of Child Support Under Code § 20-124.2(C)
Initially, father argues that the trial court erred in ordering him, pursuant to Code
§ 20-124.2(C), to continue paying child support for M.M. after M.M. graduates from high
school, reasoning that the court’s ruling in this regard was “premature and unnecessary.” We
disagree.5
As pertinent here, Code § 20-124.2(C) provides that
The court may order that support be paid for any child of the
parties. The court shall also order that support will continue to be
4
Mother contends that none of father’s arguments on appeal should be considered
because father “failed to cite any record citations as to where he preserved any of his four
questions presented,” as required by Rule 5A:20(c). However, on page 3 of his opening brief,
father does cite to various pages in the appendix; he merely identifies them by page and line
number (e.g., “P__, L___”) rather than using the abbreviation “JA ___.” Father’s citation to the
appendix is sufficient to pass muster under Rule 5A:20(c).
5
Father does not contend that the trial court erred when it ordered him to continue paying
child support for M.M. until M.M. graduates from high school, focusing solely on the award of
continuing child support for the period after M.M. graduates.
-8-
paid for any child over the age of 18 who is (i) a full-time high
school student, (ii) not self-supporting, and (iii) living in the home
of the party seeking or receiving child support until such child
reaches the age of 19 or graduates from high school, whichever
first occurs. The court may also order the continuation of support
for any child over the age of 18 who is (i) severely and
permanently mentally or physically disabled, (ii) unable to live
independently and support himself, and (iii) resides in the home of
the parent seeking or receiving child support. . . . The court may
make such further decree as it shall deem expedient concerning
support of the minor children, including an order that any party
provide health care coverage.
(Emphases added). Accordingly, this statutory section describes two separate scenarios under
which child support may be continued. First, the trial court must continue child support for
full-time high school students under the age of 19 who live at home and are not self-supporting.
Second, the trial court may continue child support for severely disabled children over the age of
18 who are unable to live independently and who reside with the parent seeking child support.
Notably, there is no statutory language from which it could be inferred that these two
scenarios are mutually exclusive. Rather, it would be entirely consistent with the statutory
language to order a continuation of child support under the rationale that both of these statutory
exceptions are applicable to a given situation. Here, that is precisely what the trial court did.
That is, the trial court concluded that M.M. is both: (1) a full-time high school student under the
age of 19 who is living at home and is not self-supporting, and (2) a severely disabled child over
the age of 18 who is unable to live independently and who resides with his mother, the parent
seeking a continuation of child support. And, because the trial court’s ruling is not plainly wrong
or without evidence to support it, see Smith v. Smith, 18 Va. App. 427, 433, 444 S.E.2d 269, 274
(1994); Young v. Young, 3 Va. App. 80, 81, 348 S.E.2d 46, 47 (1986), we affirm.6
6
We also note that, because the trial court was presented with sufficient evidence upon
which to base its ruling, the order continuing child support payments for M.M. beyond his high
school graduation furthered the interests of justice. That is, had the trial court not entered the
-9-
Initially, there is no dispute that M.M. lives with his mother, the parent seeking a
continuation of child support. It is similarly undisputed that M.M. turned eighteen on April 24,
2004. Thus, on the date of the hearing, M.M. was “over the age of 18.”7 Moreover, mother
provided uncontroverted testimony that M.M. has at least 22 bone tumors, is on six different
types of pain medication, and “can’t function” when he has received either too much or too little
pain medication. Because of his “chronic pain,” he has five treating physicians, will need at least
four additional surgeries, and has a “permanent disability” of his right arm. Thus, there is ample
evidence in the record supporting the trial court’s conclusion that M.M.’s condition constitutes a
“severe and permanent” physical disability that renders him “unable to live independently and
support himself.”
Father, however, argues that the evidence was insufficient to support the trial court’s
ruling, contending that the only evidence that M.M. was physically disabled was “hearsay lay
evidence,” that mother presented no evidence relating to M.M.’s ability to support himself or to
live alone, and that there was no causal evidence linking M.M.’s permanent disability to an
inability to support himself or live alone.
Initially, Code § 20-124.2(C) contains no language from which it may be inferred that the
fact of a child’s “severe and permanent” disability must be established by expert medical
testimony. Indeed, “the longstanding Virginia rule is that a witness need not be a medical expert
order at this time, the parties would have been forced to return to court after M.M.’s high school
graduation, less than a year away, in order to relitigate the same issues then before the court.
The trial court’s decision to enter the order was therefore not “premature,” but rather, saved both
parties considerable time and expense.
7
Cf. Cutshaw v. Cutshaw, 220 Va. 638, 641, 261 S.E.2d 52, 54 (1979) (per curiam)
(holding that the language “under the age of 18” contained in Code § 20-61 means that the
parent’s child support obligation ceases to exist “after the child’s 18th birthday”).
- 10 -
to offer testimony concerning a person’s physical condition.” Speller v. Commonwealth, 2
Va. App. 437, 441, 345 S.E.2d 542, 545 (1986). Rather,
“[t]he opinions of lay or nonexpert witnesses who are familiar with
a person whose physical condition is in question and have had
opportunity for observing him are competent evidence on issues
concerning the general health, strength, and the bodily vigor of
such person, his feebleness or apparent illness, or changes in his
apparent state of health or physical condition from one time to
another.”
Id. (quoting Pepsi-Cola Bottling Co. v. McCullins, 189 Va. 89, 97, 52 S.E.2d 257, 260 (1949)).
Indisputably, mother is “familiar” with M.M.’s “physical condition,” and she has had ample
“opportunity [to] observ[e] him.” The fact that mother is a lay witness rather than a medical
expert therefore goes to the weight of her testimony, and not her competency to testify. Cf. Todt
v. Shaw, 223 Va. 123, 127, 286 S.E.2d 211, 213 (1982) (noting that “lay testimony” regarding
the causation of an injury “‘is admissible for whatever weight the fact finder may choose to give
it’” (quoting Peterson v. Neme, 222 Va. 477, 483, 281 S.E.2d 869, 872 (1981))); Walrod v.
Matthews, 210 Va. 382, 390, 171 S.E.2d 180, 186 (1969) (“The jury has a right to weigh the
testimony of all the witnesses, experts and otherwise.” (internal quotations omitted)).
Accordingly, we conclude that mother’s uncontradicted lay witness testimony, which was based
on her own personal observations and experiences, was sufficient for purposes of this statute.
See Speller, 2 Va. App. at 441, 345 S.E.2d at 545 (holding that the trial court’s refusal to permit
a mother to testify as to a bout of polio suffered by her child was “clearly wrong” because “her
firsthand observations would establish her competency to testify as a lay witness”).
Second, we find no merit in father’s argument that mother presented no evidence relating
to M.M.’s ability to support himself. As noted by the trial court, M.M. suffers from chronic and
debilitating pain, rendering him unable to even “go to school for the full day.” Thus, there is
ample evidence in the record from which it may be inferred that M.M. cannot “live
- 11 -
independently and support himself.” Cf. Rinaldi v. Dumsick, 32 Va. App. 330, 335, 528 S.E.2d
134, 137 (2000) (upholding order continuing child support for disabled child where the mother
presented evidence that the child “could not use his left hand, had limited vision in his left eye,
and suffers from seizures . . . [that] occur on a weekly basis and have become more frequent over
the past couple of years,” and where father “presented no contrary [] testimony, medical or
otherwise,” relating to the child’s ability to live independently or support himself).
Third, we disagree with father’s contention that mother failed to present any causal
evidence linking M.M.’s permanent disability to an inability to support himself or live alone. In
Germeck v. Germeck, 34 Va. App. 1, 537 S.E.2d 596 (2000), we noted that “an award of
continuing support under the statute requires a finding that the statutory elements are causally
linked, i.e., that the child’s severe and permanent disability renders [him] unable to live
independently and support [him]self.” Id. at 8, 537 S.E.2d at 600. However, despite father’s
argument to the contrary, the trial court here explicitly found a causal link between M.M.’s
disability and his inability to support himself or live alone. Specifically, the court noted that
“given [M.M]’s condition, he can’t even go to school for the full day,” concluding that M.M. is
therefore “unable to live independently and support himself.” (Emphasis added). Accordingly,
this argument also has no merit.
Because mother presented sufficient evidence to satisfy each of the factors contained in
Code § 20-124.2(C), we hold that the trial court did not err in ruling that father’s support
obligation would continue beyond M.M.’s high school graduation.
B. Attorney’s Fees
“An award of attorney’s fees is a matter submitted to the trial court’s sound discretion
and is reviewable on appeal only for an abuse of discretion.” Graves v. Graves, 4 Va. App. 326,
333, 357 S.E.2d 554, 558 (1987). “[T]he key to a proper award of counsel fees . . . [is]
- 12 -
reasonableness under all of the circumstances revealed by the record.” Westbrook v. Westbrook,
5 Va. App. 446, 458, 364 S.E.2d 523, 530 (1988); see also Smith v. Smith, 43 Va. App. 279,
290, 597 S.E.2d 250, 256 (2004) (“Given the unique equities of each case, our appellate review
steers clear of inflexible rules and focuses instead on ‘reasonableness under all the
circumstances.’” (quoting Kane v. Szymczak, 41 Va. App. 365, 375, 585 S.E.2d 349, 354
(2003))).
Father argues that the trial court abused its discretion in awarding attorney’s fees,
contending that the award of fees “clearly . . . relat[ed] to a contempt proceeding or rule to show
cause.” Because the DCSE had dismissed its show cause motion, father reasons that “to charge
[him] attorney fees is unreasonable and an abuse of discretion.”
However, father did not pay his child support arrears until the morning of trial, at which
time mother had already prepared for the rule to show cause hearing. There was no evidence
indicating that father made any effort to resolve the issue of his child support arrearages before
the hearing. And, as noted by the trial court,
[t]here is no good reason this needed to come down to a contempt
proceeding [against the father] or a rule to show cause, because the
court order clearly said $1,600, and he wasn’t paying $1,600, and
he wasn’t paying what he should have been paying, and he wasn’t
covering health insurance. So it’s entirely reasonable that we’re
here . . . . And these attorney fees were largely avoidable.
Moreover, although the trial court awarded attorney’s fees on the issue of child support
arrearages, the court reduced the final award by 5% to eliminate the expense of requesting a
continuation of child support for M.M. Specifically, the court reasoned that “it’s different when
it comes to [M.M.’s] issue, because I do see that as something for which I will not give attorney
fees.” The trial court’s decision to reduce the amount of attorney’s fees indicates that the court
- 13 -
carefully considered the merits of the underlying disputes and only awarded attorney’s fees that
were incurred in preparing for the contempt and arrearage proceedings.
Considering that father had amassed in excess of $14,000 in child support arrearages over
a one and a half year time period, and considering father’s failure to take any meaningful steps to
resolve the issue in a timely manner, the trial court’s decision to award attorney’s fees in this
situation was reasonable “under all the circumstances.” Accordingly, we hold that the trial court
did not abuse its discretion in awarding attorney’s fees to mother.
C. Admissibility of Exhibit 9
Father also contends that the trial court erred in admitting Exhibit 9 into evidence,
arguing that, because the “claimed expense totals are not supported by bills or receipts,” the
exhibit was inadmissible hearsay that lacked an adequate foundation. Because we hold that
father has failed to adequately present this issue for our consideration, we decline to rule on the
merits of this argument.
Rule 5A:20(e) requires that the appellant’s opening brief include the “principles of law,
the argument, and the authorities relating to each question presented.” Father’s argument in
support of this assignment of error does not meet the requirements of Rule 5A:20(e). Not only
does father fail to argue the issue with any specificity, relying instead on a few broad, conclusory
assertions, he also fails to provide any citation to controlling legal authority that supports his
position. And, as we noted in Buchanan v. Buchanan, 14 Va. App. 53, 415 S.E.2d 237 (1992),
“[s]tatements unsupported by argument, authority, or citations to the record do not merit
appellate consideration. We will not search the record for errors in order to interpret the
appellant’s contention and correct deficiencies in a brief.” Id. at 56, 415 S.E.2d at 239; see also
Theismann v. Theismann, 22 Va. App. 557, 572, 471 S.E.2d 809, 816 (declining to address an
argument that was inadequately developed in appellant’s brief), aff’d en banc, 23 Va. App. 697,
- 14 -
479 S.E.2d 534 (1996); Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7, 366 S.E.2d 615, 625 n.7
(1988) (en banc) (noting that it is not this Court’s “function to comb through the record . . . in
order to ferret-out for ourselves the validity of [appellant’s] claims”).
Accordingly, we decline to address the merits of this assignment of error.
D. Out-of-Pocket Medical Expenses
Finally, father contends that the trial court erred in ordering him to reimburse mother for
both her out-of-pocket medical expenses and the cost of providing health insurance for the
children. Father reasons that the out-of-pocket medical expenses were “duplicative of the order
to pay the health insurance premiums.” Father also argues that, based on the May 2000 consent
order, he had “no obligation . . . to be solely responsible for any uncovered medical[] expenses in
excess of $200.00 per month.”
The record, however, does not support father’s argument that the two awards were
duplicative. Based on Exhibit 2, the trial court ordered father to reimburse mother for the costs
of providing health insurance to the children. Based on Exhibit 3, the trial court also ordered
father to reimburse mother for a portion of the monthly out-of-pocket medical expenses she
incurred between May 2000 and May 2004. Father did not object to either of these exhibits, did
not produce any evidence or otherwise argue that the amounts listed in the exhibits were
inaccurate, and did not produce any evidence indicating that the expenses covered in Exhibit 2
were duplicative of the expenses covered in Exhibit 3.
Thus, the trial court’s decision to award mother the costs of providing health insurance
for the children was entirely separate from its decision to award mother a portion of her
out-of-pocket medical expenses. The two awards were based on different bodies of evidence,
and father has not identified any specific expenses that he believes are covered by both Exhibit 2
- 15 -
and Exhibit 3.8 Moreover, the trial court awarded mother the costs of providing health insurance
for the children based on a provision in the consent order that is separate from the provision
authorizing the court to award mother a portion of her monthly out-of-pocket medical expenses.
Accordingly, father’s argument that the two awards are “duplicative” is unsupported by any
evidence in the record and, therefore, has no merit.
The record also fails to support father’s assertion that he had “no obligation . . . to be
solely responsible for any uncovered medical[] expenses in excess of $200.00 per month.” The
May 2000 consent order expressly provides that mother “shall be responsible for any out of
pocket uninsured medical expenses not to exceed $200 per month.” (Emphasis added). The trial
court interpreted this consent order as meaning that mother’s liability for out-of-pocket medical
expenses was “capped” at $200 per month and that “[father] is responsible for the cost in excess
of $200 per month.” We agree. According to the plain language of the consent order, mother
was responsible for the first $200 of out-of-pocket medical expenses, and father was responsible
for any amounts expended in excess of $200. Accordingly, the trial court did not err in ordering
father to reimburse mother for the portion of her monthly out-of-pocket medical expenses that
exceeded $200.
For these reasons, we hold that the trial court did not err in ordering father to reimburse
mother for both the cost of providing health insurance for the children and for a portion of her
monthly out-of-pocket medical expenses.
8
Father contends that the cost of providing health insurance was included in the totals for
Exhibit 3, but father has not identified any evidence indicating that this is, in fact, true. Father’s
unsubstantiated assertion is insufficient to carry his burden of proving that the trial court erred.
- 16 -
E. Attorney’s Fees on Appeal
Mother has requested an award of attorney’s fees for the cost of this appeal. Considering
the lack of merit of this appeal and the undeveloped nature of father’s brief and arguments, as
well as the fact that mother is currently unemployed, in poor health, and caring for two children
who both suffer from a severe and debilitating disease, we order father to reimburse mother for
the reasonable attorney’s fees and costs she incurred for purposes of this appeal. See generally
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 479 S.E.2d 98 (1996) (noting that attorney’s fees
are proper on appeal if “the appeal is frivolous or [] other reasons exist for requiring additional
payment”). Accordingly, we remand this case for the limited purpose of determining the amount
mother should be awarded for the attorney’s fees and costs she incurred in this appeal. See
Gottlieb v. Gottlieb, 19 Va. App. 77, 96, 448 S.E.2d 666, 677 (1994) (remanding for limited
purpose of determining attorney’s fees on appeal).
III. CONCLUSION
For these reasons, we affirm the judgment of the trial court. Moreover, considering the
merits of father’s arguments to this Court, we award mother the costs and attorney’s fees she
incurred in this appeal, and we remand to the circuit court for the limited purpose of determining
the cost of mother’s attorney’s fees on appeal.
Affirmed and remanded.
- 17 -