Noel J. Albert v. Cynthia G. Albert

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia

NOEL J. ALBERT

v. Record Nos. 1439-01-4 and OPINION BY
1987-01-4 JUDGE ROBERT P. FRANK
MAY 21, 2002
CYNTHIA G. ALBERT

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge

Ted Kavrukov (Kavrukov & DiJoseph, on
briefs), for appellant.

No brief or argument for appellee.

In this consolidated appeal, Noel J. Albert (father) appeals

the trial court's denial of his Motion to Modify Visitation and

Child Support. He contends the trial court erred in (1) not

modifying visitation to reduce childcare costs, (2) failing to

impute income to Cynthia G. Albert (mother), and (3) awarding

attorney's fees to mother. Father also appeals the trial court's

finding that he was responsible for payment of certain medical

expenses of the minor children. For the reasons stated, we

affirm.

I. BACKGROUND

A. Visitation and Child Support

The parties were divorced in June 2000. Custody of the

parties' three children was given to mother, and a schedule of
visitation with father was established. On January 18, 2001,

father filed a Motion to Modify Visitation and Child Support.

The motion stated mother works "32 hours a week, 24 hours on

weekends and 8 hours on Tuesdays from 3:00 p.m. to 11:00 p.m."

Also, mother "pays for child care while she works on Tuesdays."

Father proposed he care for the children on Tuesdays, from the end

of the school day until the next morning, when he would take the

children to school. In the alternative, father suggested the

parties' thirteen-year-old daughter provide childcare for the

other two children on Tuesdays. Father indicated in his motion

that either alternative would "significantly diminish child care

costs" and, therefore, reduce child support.

A hearing on the motion was set for March 22, 2001. No one

testified at the hearing, despite the motion's evidentiary nature.

The hearing consisted of a dialogue between the judge and counsel.

Neither party objected to this procedure; therefore, we accept the

dialogue as "proffered testimony." However, we can glean only

minimal information from this dialogue.1

At the beginning of the hearing, counsel for mother indicated

she could stop working on Tuesday, thereby saving childcare

expenses for that day. Counsel opined this change would eliminate

1
We realize many trial issues are resolved with proffered
evidence, but counsel and the trial court must ensure the
proffers contain all of the information necessary to resolve the
issue at trial and to provide a sufficient record for appellate
review.

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any interruption in the children's schedules. The children

"wouldn't have to . . . go to dad's, get up early on Wednesday

morning and be driven to school."

Father's attorney responded that, if mother did not work on

Tuesdays, her salary would be diminished considerably, and the

court then must impute that lost income to her. Father's counsel

represented that mother's total annual salary was $74,823.32, or

$6,235.28 per month. Mother's attorney explained, however,

because of a new union contract with increased wages, mother could

maintain her old salary without working on Tuesdays.

Father's counsel stated that if mother continued to work on

Tuesdays, and the children spent Tuesday nights with father, the

reduction in childcare costs would be $616 per month. No other

evidence, by proffer or otherwise, was elicited as to income or

the expenses of the parties.

The trial court ruled the children would not spend Tuesday

evenings with father. The court further ordered, since mother

would no longer work on Tuesdays, that both counsel recalculate

the amount of child support based on the reduction in her income

and the reduction in childcare expenses. The court denied the

request for imputation of income, without stating a reason. It

also awarded attorney's fees in the amount of $780 to mother.

During the ensuing recess, the parties compromised on an amount of

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child support of $533 per month. The parties did not file any

worksheets with the court. 2

The trial court entered an order on May 10, 2001, denying the

motion to modify visitation, awarding $533 per month in child

support, 3 and awarding mother $780 in attorney's fees.

B. Medical Expenses

Mother filed a Petition for Rule to Show Cause against father

on April 11, 2001, claiming he had willfully failed to pay his

share of the children's medical expenses as provided in the final

decree of divorce. She claimed he owed $960.92 for these bills.

The final divorce decree of the parties provided,

In the event that the children have
extraordinary uninsured medical expenses,
including but not limited to deductibles,
medicines, therapy, counseling, physical
therapy, dental and/or orthodontic expenses,
[father] shall be responsible and pay 50% of
these expenses. Payment for said expenses
shall be made at the time [mother] provides
[father] with evidence of the expense, or at
such time as a doctor or other medical
professional requires payment.

2
While the appendix contains worksheets, they were not
offered into evidence at the hearing nor were they made part of
the proffer. These documents, therefore, are not part of the
record and will not be considered by this Court. Rule 5A:10,
Rule 5A:25. See also John v. Im, 263 Va. 315, 320, 559 S.E.2d
694, 697 (2002) (noting the appellate court is limited to the
record before it and cannot consider documents that were not
submitted to the trial court).
3
The order states the support award is based upon "the
agreement of the parties as to the amount of child support based
upon the guidelines set forth by the court."

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The final decree further ordered father to "provide health care

insurance coverage for the children."

A consent order entered on July 23, 1999 set forth custody,

visitation, and the related issues of health, education, and

"general upbringing." It required each party "notify the other at

the time a doctor, dental or medical appointment is made for the

benefit of the children." 4

The June 29, 2001 show cause hearing also consisted generally

of a dialogue between counsel and the court. Mother testified

4
The entire paragraph B, "Health," states:

1. The parties agree to consult with each
other on major health decisions, and each
parent shall have access to professional
consultation and records.

2. If any of the children should become
sick, the parent with whom the child is not
staying at the time may visit the sick
child. Each parent is to notify the other
if any child is sick enough to be taken to
the doctor or is confined to bed for two
days or more.

3. In the event that either parent should
need to authorize emergency hospitalization,
medical care or both for either child, that
parent in whose care or presence the child
is at the time shall have full authority to
do so as a custodial parent.

4. The parties shall notify the other at
the time a doctor, dental or medical
appointment is made for the benefit of the
children.

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briefly, but not under oath. 5 Mother apparently submitted five

cancelled checks and three credit card receipts, showing payments

totaling $1,512.84 for various doctors' appointments.

Additionally, mother apparently presented to father at the

hearing, for the first time, another medical bill for $204.50,

raising the total medical bills to $1,717.34. 6

Father's counsel argued his client should not be responsible

for fifty percent of these bills. He contended mother did not

have "clean hands" for several reasons. First, contrary to the

terms of the consent order, she did not notify father of the

children's appointments that gave rise to these medical bills.

Also, father never received copies of the bills so that he could

submit them to his primary or secondary insurance carrier. Father

further contended that several medical bills were from visits to

medical providers outside of his insurance plan.

At the hearing, father confirmed that his counsel's

representations to the court were "the truth." Father did not

testify. Both the judge and mother's counsel accepted the

representations of fact presented in father's counsel's argument.

Although not under oath, mother addressed the trial court and

admitted that she took the children to two health providers,

Dr. Sharif and Hour Eyes, who were not on father's insurance plan.

5
Again, father did not object to this procedure.
6
Father never questioned or objected to the amount of the
medical bills. He objected only to paying some or all of them.

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She indicated Dr. Sharif initially was on the plan and only after

the services were rendered did she learn that Sharif had dropped

the plan. She then began taking the children to another doctor.

Mother explained Hour Eyes told her that they "carry her

insurance," but, apparently, they did not.

The trial court found father was not in contempt of the

consent order. The court admonished mother to notify father

whenever the children went to a doctor, "in order to give him the

opportunity to make sure it's covered by the insurance," and to

transmit medical bills in a timely fashion, since "it's better to

provide it [to father] sooner as opposed to later." The trial

court did order that father pay $960.92 of the unreimbursed

medical expenses, attorney's fees of $600, and costs of $69.50.

II. ANALYSIS

A. Visitation and Child Support

Father first contends the trial court erred in not modifying

its earlier order to allow him visitation on Tuesdays. We

disagree.

When determining whether to change visitation, a trial court

"must apply a two-pronged test: (1) whether there has been a

change in circumstances since the most recent [visitation] award;

and (2) whether a change in [visitation] would be in the best

interests of the child." Visikides v. Derr, 3 Va. App. 69, 70,

348 S.E.2d 40, 41 (1986) (discussing this test in the context of

custody determinations). "In matters of custody, visitation, and

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related child care issues, the court's paramount concern is always

the best interests of the child." Farley v. Farley, 9 Va. App.

326, 327-28, 387 S.E.2d 794, 795 (1990). "In matters of a child's

welfare, trial courts are vested with broad discretion in making

the decisions necessary to guard and to foster a child's best

interests." Id. at 328, 387 S.E.2d at 795. "A trial court's

determination of matters within its discretion is reversible on

appeal only for an abuse of that discretion, . . . and a trial

court's decision will not be set aside unless plainly wrong or

without evidence to support it." Id. (citation omitted).

Here, father did not meet his burden. He did not show any

change of circumstance had occurred since the last order nor did

he show a change in visitation would be in the children's best

interests. Instead, his motion and argument only demonstrated

that a change would be in his best interest. 7 His rationale for

the Tuesday visitation was to reduce his child support payments by

saving childcare costs. The trial court did not abuse its

discretion in denying the motion to change visitation.

Father next contends, since mother voluntarily reduced her

workweek from thirty-two to twenty-four hours by not working

7
While appellant, at oral argument, contended he argued
during the hearing that a change in visitation would be in the
children's best interest, we find nothing in the record to
support that position.

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Tuesdays, income should be imputed to her. We again must look to

the "proffered testimony" to determine if father met his burden. 8

The dialogue indicated mother was "willing" to "stop working

on Tuesdays." The record does not reflect whether she did in fact

stop working. We, therefore, do not know if she voluntarily

reduced her income. In fact, at the time of the hearing, all

indications were mother was still working on Tuesdays; her work

hours had not changed prior to the hearing.

Imputation of income is used by a trial court when deciding

whether "to deviate from the presumptive amount of child

support, and 'any child support award must be based on

circumstances existing at the time the award is made.'" Saleem

v. Saleem, 26 Va. App. 384, 393, 494 S.E.2d 883, 887-88 (1998)

(quoting Sargent v. Sargent, 20 Va. App. 694, 703, 460 S.E.2d

596, 600 (1995)).

This Court set forth the parameters for imputing income in

Niemiec v. Dep't of Soc. Serv., 27 Va. App. 446, 451, 499 S.E.2d

576, 579 (1998):

When asked to impute income to a parent, the
trial court must consider the parent's
earning capacity, financial resources,
education and training, ability to secure
such education and training, and other
factors relevant to the equities of the
parents and children. See Brooks [v.

8
While father objected to the May 10, 2001 order on a
number of bases, including the court's refusal to hear testimony
on the visitation matter, he did not make an objection based on
the court's refusal to hear testimony on imputed income.

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 Rogers], 18 Va. App. [585, 592, 445 S.E.2d
725, 729 (1994)] (citing Code
§ 20-108.1(B)). The burden is on the party
seeking the imputation to prove that the
other parent was voluntarily foregoing more
gainful employment, either by producing
evidence of a higher-paying former job or by
showing that more lucrative work was
currently available. See Brody [v. Brody],
16 Va. App. [647, 651, 432 S.E.2d 20, 22
(1993)]; Hur v. Virginia Dept. of Social
Services Div. of Child Support Enforcement
ex rel. Klopp, 13 Va. App. 54, 61, 409
S.E.2d 454, 459 (1991); see also Antonelli
v. Antonelli, 242 Va. 152, 154, 409 S.E.2d
117, 119 (1991). The evidence must be
sufficient to "enable the trial judge
reasonably to project what amount could be
anticipated." Hur, 13 Va. App. at 61, 409
S.E.2d at 459.

The trial court's decision here, refusing to impute income

to mother, will be upheld on appeal unless "'plainly wrong or

unsupported by the evidence.'" Sargent, 20 Va. App. at 703, 460

S.E.2d at 600 (quoting Calvert v. Calvert, 18 Va. App. 781, 784,

447 S.E.2d 875, 876 (1994)).

In the dialogue, father's counsel indicated that mother's

annual salary was $74,823.32, or $6,235.28 a month, and that

prior to the hearing, mother worked thirty-two hours per week.

If she did not work on Tuesdays, her workweek would be

twenty-four hours. Mother's counsel responded that her income

would not be "diminished" due to a better union contract,

"because she works weekends, and because she works late nights,

she gets a better deal. Essentially, she works fewer hours and

receives money." Mother's counsel further represented that she

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would be able to earn the salary "she had before, without

working Tuesdays." This proffer was not opposed by father.

The trial court instructed both counsel to prepare an order

for change of child support payments, "based upon the change of

the salary and day care elements." After a recess, counsel

returned with a figure of $533 per month, but they did not

submit any worksheets or explanation of the elements included in

the calculation of that number. 9 We do not know if the $533

figure reflected a change in income or in day care, nor do we

know the amount of change attributable to each. The informality

of the procedure leaves a woefully poor record. While father's

counsel continued to argue that income should be imputed to

mother, and the trial court indicated it would reconsider the

issue, the final order used the $533 figure.

From the above, it is not clear that wife has actually

suffered a loss of income. We, therefore, affirm the trial

court's decision not to impute income to mother. Father had the

burden to prove imputation was appropriate, see Niemiec, 27 Va.

App. at 451, 499 S.E.2d at 579, and he failed to do so.

Finally, father contends the trial court erred in assessing

attorney's fees against him as his motion was meritorious. He

argues the court failed to consider his ability to pay versus

9
The record does indicate this figure was reached after
some negotiation between the parties.

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mother's ability to pay. He also argues the fees were

unreasonable.

"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). The "key to a proper award of

counsel fees" is "reasonableness under all of the

circumstances." McGinnis v. McGinnis, 1 Va. App. 272, 277, 338

S.E.2d 159, 162 (1985). To promote this determination,

"evidence in the record [must] explain or justify the amount of

the award." Westbrook v. Westbrook, 5 Va. App. 446, 458, 364

S.E.2d 523, 530 (1988). "Where the trial judge finds that a fee

award is justified, evidence of time expended and services

rendered is a proper basis upon which to fix an award." Id.

Although no affidavit was presented to the trial court,

mother's counsel represented to the court without objection that

her hourly fee was $200. She then set forth the time expended

for two court appearances, telephone calls, drafting documents,

etc., for a bill totaling $780. Further, the trial court found

father's motion for modification was not meritorious. Under

these circumstances, we hold that the award of counsel fees was

reasonable.

B. Medical Expenses

Father contends he should not have to reimburse mother for

the children's medical bills because she did not notify him of

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their appointments. Essentially, he maintains notification is a

condition of reimbursement. The trial court disagreed, stating,

"I do not find . . . the language of the order or the agreement

to result in a default on the right of . . . reimbursement for

the expenses incurred for these medical and dental visits." We

agree with the trial court.

"It is the firmly established law of this Commonwealth that

a trial court speaks only through its written orders." Davis v.

Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996).

Additionally, "trial courts have the authority to interpret

their own orders." Fredericksburg Constr. Co. v. J.W. Wyne

Excavating, Inc., 260 Va. 137, 144, 530 S.E.2d 148, 152 (2000).

See also Rusty's Welding Serv., Inc. v. Gibson, 29 Va. App. 119,

129, 510 S.E.2d 255, 260 (1999) (en banc). "Furthermore, when

construing a lower court's order, a reviewing court should give

deference to the interpretation adopted by the lower court."

Id.

In this case, no notification language is contained in the

final decree's provisions for health care coverage and

reimbursement. Instead, notification language is found in the

consent decree, under the title, "Health." This "Health"

provision requires the parties consult one another as to "major

health decisions" and requires notification of illnesses and

medical appointments. Similarly, under the provisions entitled,

"Education," the parties are required to share information

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concerning the children's education, grades, and activities. In

the context of the consent decree, the trial court ordered the

parties to cooperate and share information concerning the

children's welfare and best interests.

Based on this record, we cannot say the trial court abused

its discretion in its interpretation of its own decree. We,

therefore, hold the notification requirement was not a condition

precedent for father's obligation to reimburse mother for the

medical expenses.

Father also argues he should be released from any

obligation to pay some of these medical bills because the

appointments were not with doctors listed by his insurance

provider. However, the trial court accepted mother's explanation

of why she took the children to these particular health care

providers, and we will not disturb that finding.

"'[T]he finding of the judge, upon the credibility of the

witnesses and the weight to be given their evidence, stands on

the same footing as the verdict of a jury, and unless that

finding is plainly wrong, or without evidence to support it, it

cannot be disturbed.'" Yates v. Commonwealth, 4 Va. App. 140,

143, 355 S.E.2d 14, 16 (1987) (quoting Lane v. Commonwealth, 184

Va. 603, 611, 35 S.E.2d 749, 753 (1945)). We cannot say the

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trial court was "plainly wrong" in accepting mother's

explanations. 10

Father also argues mother should not be reimbursed because

she did not "timely" send the medical bills to him. However, he

does not argue that he suffered any prejudice from the untimely

receipt of the bills. Nothing before the trial court indicated

father's insurance carrier would decline to pay the bills of

providers covered by the plan if the bills were not submitted in

a "timely" fashion.

Father also asks that we apply the doctrine of "unclean

hands" to this case. He argues mother's actions were improper

and, therefore, she should not benefit from her "wrongful"

behavior. Assuming, without deciding, that the unclean hands

doctrine applies to these circumstances, we do not conclude that

mother lacked "clean hands."

"[H]e who asks equity must do equity, and he who comes into

equity must come with clean hands." Walker v. Henderson, 151

Va. 913, 927-28, 145 S.E. 311, 315 (1928).

The withholding of equitable relief to
punish a wrongdoer has been approved in
other cases involving issues of family law

10
While we do not condone a trial court accepting testimony
from unsworn witnesses, father did not object to this procedure.
As the appellant in this case, he had the responsibility to
protect the parts of the record that would support his arguments
on appeal. See Davis v. Commonwealth, 35 Va. App. 533, 537, 546
S.E.2d 252, 254 (2001) ("[Appellant] has the burden to preserve
an adequate record on appeal to allow us to consider the
propriety of the trial court's actions.").

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 but not where the rights of children were
prejudiced by the result. See Davis v.
Davis, 206 Va. 381, 387, 143 S.E.2d 835, 839
(1965); Gloth v. Gloth, 154 Va. 511, 555,
153 S.E. 879, 893 (1930).

Brown v. Kittle, 225 Va. 451, 457, 303 S.E.2d 864, 867 (1983).

The trial court accepted mother's explanation for her

behavior. We will not disturb this factual finding. See Yates,

4 Va. App. at 143, 355 S.E.2d at 16. Because the court found

mother was not a "wrongdoer," implicitly, she has "clean hands."

Father also argues he should not be responsible for three

of the bills, totaling $50, since they are not "extraordinary"

bills under Code § 20-108.2(D), 11 the child support guidelines

statute. The trial court rejected this argument, interpreting

its own order as including such expenses. The court opined that

the word "extraordinary" in the order referred to "charges that

are not insured, and I think they're properly recoverable."

Again, we defer to the trial court's interpretation of its

own order. See Fredericksburg Constr. Co., 260 Va. at 144, 530

11
Code § 20-108.2(D) states:

Any extraordinary medical and dental
expenses for treatment of the child or
children shall be added to the basic child
support obligation. For purposes of this
section, extraordinary medical and dental
expenses are uninsured expenses in excess of
$100 for a single illness or condition and
shall include but not be limited to
eyeglasses, prescription medication,
prostheses, and mental health services
whether provided by a social worker,
psychologist, psychiatrist, or counselor.

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S.E.2d at 152. We cannot say the trial court abused its

discretion in that interpretation.

Lastly, we address father's contention that the trial court

erred in awarding counsel fees and costs to mother. Father

argues the trial court had no authority to award fees and costs.

Essentially, father maintains that counsel fees can only be

awarded pendente lite in divorce actions, see Code § 20-103(A),

in a decree in which a divorce is "instituted or pending," see

Code § 20-79(B), or when a party is found in contempt, see

Wilson v. Collins, 27 Va. App. 411, 426, 499 S.E.2d 560, 567

(1998). Father maintains that here, given the divorce is

concluded, he must be found in contempt before the court can

assess attorney's fees against him. We disagree.

Father cites Carswell v. Masterson, 224 Va. 329, 295 S.E.2d

899 (1982), as limiting awards of attorney's fees to cases where

contempt is found. However, Carswell involved a failure of the

trial court to award fees after finding a party in contempt.

Id. at 330, 295 S.E.2d at 900. The Supreme Court explained that

trial courts may award attorney's fees in contempt proceedings

brought to enforce support and divorce decrees and remanded the

case "for such further proceedings as may be indicated." Id. at

332, 295 S.E.2d at 901. The Court did not express an opinion as

to awards in other contexts.

The more relevant case is Sullivan v. Sullivan, 33 Va. App.

743, 536 S.E.2d 925 (2000). In Sullivan, husband agreed in a

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property settlement to maintain life insurance, naming wife and

children as beneficiaries; the settlement agreement was

incorporated into a court order. Id. at 746, 536 S.E.2d at 927.

Wife filed a show cause because husband failed to maintain the

policy. Id. The trial court ordered husband to either purchase

the required life insurance policy or post a bond to insure

performance of the obligation; the court also awarded attorney's

fees to wife, without finding husband in contempt of court. Id.

at 747, 536 S.E.2d at 927. On appeal, husband contended, since

he was not specifically found in contempt, the trial court erred

in awarding attorney's fees. Id. at 752-53, 536 S.E.2d at 930.

This Court upheld the award. Id. at 753, 536 S.E.2d at 930.

As explained in Sullivan:

Judges presiding over contempt proceedings
in divorce suits have the discretion to
award counsel fees. Carswell v. Masterson,
224 Va. 329, 332, 295 S.E.2d 899, 901
(1982). The trial judge's failure to use
the word "contempt" in his order does not
alter the effect of his ruling. As in
Carswell, the wife had to resort to legal
proceedings to secure compliance with a
valid court order. In awarding legal fees,
the trial judge found that the husband
failed to perform a legal duty.
Furthermore, simply because the trial judge
ordered the husband to comply with the life
insurance provision, the alleged
impossibility of securing such a policy does
not provide a basis for establishing an
abuse of discretion by the trial judge in
awarding attorney's fees. The husband's
reliance on Wilson v. Collins, 27 Va. App.
411, 499 S.E.2d 560 (1998), does not aid his
argument because in that case we held that
the trial judge had incorrectly found a

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 party in contempt and therefore could not
order that party to pay attorney's fees.

Id.

The case before us is very similar to Sullivan. Mother, for

example, "had to resort to legal proceedings to secure compliance

with a valid court order," i.e., the order for father to pay

fifty percent of the children's medical expenses. Id. Here

also, the trial court found father failed to "perform a legal

duty." Id.

We further note that mother's counsel submitted an affidavit

to the trial court, showing her time expended on this case. We,

therefore, conclude the trial court did not abuse its discretion

in awarding attorney's fees.

III. CONCLUSION

For the reasons stated above, we affirm the trial court's

rulings in these appeals.

Affirmed.

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