COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia
JOHN B. GOLDHAMER
OPINION BY
v. Record No. 1916-98-2 JUDGE ROBERT P. FRANK
MARCH 7, 2000
DEBORAH E. COHEN
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Jonathan M. Murdoch-Kitt for appellant.
Thomas Scott Word, III (Matthew N. Ott, P.C.,
on brief), for appellee.
John B. Goldhamer (appellant) appeals the chancellor's
decisions to eliminate appellant’s midweek overnight visitation
with the parties' child, to calculate appellant's child support
obligation based on the parties' salaries rather than their
gross income, and to disregard appellant's request for
attorney's fees and costs. Appellant asserts that the trial
judge erred in: 1) eliminating appellant's midweek carryover
visitation and midweek overnight visitation with the parties'
child; 2) disregarding evidence that the child’s bowel problems
began when appellant's visitation was reduced; 3) disregarding
the testimony of Dr. Simpson; 4) disregarding evidence that the
child completes his homework under the supervision of a teacher
at the after-school daycare center; 5) disregarding evidence
that appellant has lived in his home for twenty-two years and
that the child grew up in appellant's home; 6) ignoring evidence
that the child had a history of two midweek overnight visits per
week when appellant was in town; 7) disregarding evidence that
appellee reduced appellant's midweek visitation with the child
without explanation and in violation of an oral agreement; 8)
disregarding evidence that appellee would not explain the
midweek visitation reduction to the child; 9) disregarding
evidence that appellee eliminated the extra "parent duty"
appellant provided for child in place of a babysitter; 10)
disregarding evidence that appellee has been diagnosed with
Obsessive Compulsive Disorder disease, which has affected the
child; 11) excluding evidence from appellee's psychologist and
appellant's psychologist that people with food addiction can be
addicted to other things, including the love of a child or a
relationship with a child; 12) ignoring evidence showing
appellee's salary, bonus, and stock grant; 13) omitting
appellee's passive income as reported on her 1997 federal income
tax return; 14) failing to refund appellant the excess child
support he paid to appellee; 15) excluding evidence of
appellee's gift and trust income; 16) accepting appellee's
estimated income for 1997 as $33,716.10 when the evidence showed
her income was $125,212; 17) misclassifying on-going pure trust
income as a one-time inheritance; 18) disregarding appellee's
evidence that financial transactions between appellee and her
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father and her father's trust were not "arm's length"
transactions; and 19) disregarding appellant's request for
attorney's fees and costs. We affirm the chancellor's decision
as to visitation and reverse and remand the chancellor's
determination of child support.
I. BACKGROUND
The parties separated in 1995, and the final decree of
divorce was entered on October 15, 1996. They have one child, a
son, who is now nine years old. The parents have joint custody,
but the child's primary residence is with appellee. From the
time of their separation, the parties followed their separation
agreement (Agreement) concerning visitation. The Agreement
schedule gives appellant overnight visitation one night per week
during the work week and weekend visitation every other weekend.
Appellant is a tax auditor and is out of town on business
approximately twenty-two weeks per year. Appellee permitted
appellant to have two nights of midweek overnight visitation
during the weeks when he was working in town, which allowed him
the same amount of visitation as described in the Agreement.
The parties refer to this as "carryover visitation." This
arrangement was by oral agreement only. Appellee also asked
appellant to care for the child on nights when she had meetings,
appointments, or was out of town for work or medical treatment.
The parties refer to this as "parent duty." The carryover
visitation and parent duty arrangement ended in February 1997,
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allegedly when appellant inquired about appellee's 1996
financial information for the purpose of calculating child
support. The Agreement states that the parties shall exchange
financial information on or before February 15 of each year.
On May 22, 1997, appellant filed a motion to amend or
review the order for child support and visitation in the Henrico
County Juvenile and Domestic Relations District Court. The
juvenile and domestic relations district court amended the
visitation schedule to eliminate appellant's midweek overnight
visitation under the Agreement. Appellant was given one evening
visitation with the child from after school until 7:00 p.m.
during the work week. Under the Agreement, appellant paid $677
per month in child support. The juvenile and domestic relations
district court ordered child support payments in the amount of
$635 per month.
Appellant appealed to the Henrico County Circuit Court.
The chancellor heard evidence from both parties, the child's
treating psychologist, and an evaluative psychologist hired by
appellant. The chancellor ruled that the midweek overnight
visitation should be eliminated but extended appellant's evening
visitation until 8:00 p.m. The chancellor ordered the child
support amount to be based on the parties' "current income."
While the record was not completely clear as to appellee's total
assets, evidence in the record proved that, in addition to her
salary, appellee received interest income from three
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interest-bearing accounts in 1996 and 1997, $9,500 from the
Raymond Cohen Trust in 1996, $10,000 from the Leah Cohen Trust
in 1996, $10,000 from the Leonard Lewis Trust in 1996, $6,110
from the Bernadine/Louis Silverman Trust in 1996, a $2,550 bonus
from her employer in 1997, overtime pay in 1997, $4,835 from the
Raymond Cohen Trust in 1997, $750 from Raymond Cohen,
individually, in 1997, a 1990 Honda Accord valued at $8,000 from
Raymond Cohen, individually, in 1997, $68,343 from the
Bernadine/Louis Silverman Trust in 1997, five shares of National
Auto Supply Company stock from the Bernadine/Louis Silverman
Trust in 1998, and 12.5 shares of stock in Russ Nixon Auto
Parts, Inc. from the Bernadine/Louis Silverman Trust in 1998.
The record also established that appellee has an Individual
Retirement Account (IRA), a deferred compensation plan with her
employer, and a mortgage from the Raymond Cohen Trust for her
home with the principal amount of $87,000 at a fixed interest
rate of 6.5%.
II. ANALYSIS
Appellant challenges the chancellor's decisions to
eliminate midweek overnight visitation, to base appellant's
child support obligation on the parties' salaries rather than on
their gross income, and to disregard appellant's request for
attorney's fees and costs. We affirm the chancellor's
elimination of the midweek overnight visitation and the
chancellor's decision not to award attorney's fees. We reverse
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and remand for determination of appellant's child support
obligation and consideration of appellant's request for costs.
Appellant's assignments of error one through eleven pertain
to the chancellor's ruling on visitation. All of these
assignments challenge the sufficiency of the evidence. We,
therefore, consider these assignments of error together.
"In matters of custody, visitation, and 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 (citing Eichelberger
v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986)).
"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.
(citations omitted). In the determination of a change of
visitation, the 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)
(citation omitted).
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While the testimony was conflicting, sufficient evidence in
the record supports the chancellor's decision. The evidence
showed that the child began having problems with soiling
himself. The child's treating psychologist testified that the
midweek overnight visitation disrupted the child's schedule for
"normal sleeping and waking, homework and other activities."
The psychologist further stated that when a child shifts between
two homes during the week, "it is destabilizing for them and it
affects their school work, their social interaction as well as
other basic bodily functions: eating, sleeping, and going to
the bathroom." Thus, there was expert testimony from the
child's treating psychologist supporting the chancellor's
determination that elimination of the midweek overnight
visitation was in the best interests of the child. Finding
ample evidence in the record to support the chancellor's
decision that the best interests of the child would be achieved
by eliminating the overnight midweek visitation, we will not
disturb the chancellor's determination of this issue on appeal.
Appellant's assignments of error twelve through nineteen
pertain to the chancellor's ruling on child support. We,
therefore, consider these assignments together.
Code § 20-108.2(C) defines gross income for the purposes of
determining child support as:
income from all sources, and shall include,
but not be limited to income from salaries,
wages, commissions, royalties, bonuses,
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dividends, severance pay, pensions,
interest, trust income, annuities, capital
gains, social security benefits except as
listed below, workers' compensation
benefits, unemployment insurance benefits,
disability insurance benefits, veterans'
benefits, spousal support, rental income,
gifts, prizes or awards.
Appellant contends the chancellor computed appellee's gross
income without considering the correct amount of appellee's
salary, bonuses, stock grant, and passive income. We are unable
to discern from the record the amounts the chancellor used in
computing appellee's gross income. It is clear, however, that
bonuses, stock grants, interest income, dividends, and capital
gains are included as gross income pursuant to Code
§ 20-108.2(C). Thus, on remand, the chancellor must consider
these amounts in computing appellee's gross income.
Appellant contends the chancellor did not consider
appellee's gift income or inheritance in the computation of her
gross income. Evidence in the record proved that appellee
received gifts from the Raymond Cohen Trust, the Leah Cohen
Trust, the Leonard Lewis Trust, and Raymond Cohen, individually.
Appellee also testified that she received income from the
Bernadine/Louis Silverman Trust, which she stated was an
inheritance. 1
1
Appellee testified that this income was an inheritance.
For the purposes of this opinion, we assume that this
characterization is correct.
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The chancellor, in his opinion, stated, "I feel child
support should be based on the current income of the parties. I
did not use the past inheritance of Ms. Cohen because they are
not to extend into the future." The chancellor's opinion
apparently only considered the inheritance from the
Bernadine/Louis Silverman Trust. He did not address the gifts
from appellee's living relatives, which include the gifts from
the Raymond Cohen Trust, the Leah Cohen Trust, the Leonard Lewis
Trust, and Raymond Cohen, individually.
"Gifts" are included in the computation of gross income.
See Code § 20-108.2(C). A gift is property that is voluntarily
transferred to another without compensation. See Black's Law
Dictionary 696 (7th ed. 1999). A testamentary gift is a "gift
made in a will." Id. at 697. For the purposes of computation
of gross income under Code § 20-108.2(C), we hold that any
inheritance is a gift, whether by will or intestate succession.
We include transfers of property by intestacy as "gifts." We
assume that the intestate heirs are the intended donees because
the decedent did not specify any other disposition of his or her
property.
In this case, the chancellor ruled that the inheritance was
not included in the gross income amount because it "would not
extend into the future." Any type of gift is irregular income
and, therefore, may or may not extend into the future. The
statute clearly includes irregular income in the gross income
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computation because gifts, prizes, or awards are defined as
gross income. See Code § 20-108.2(C). The chancellor's
reasoning for not considering appellee's inheritance is contrary
to the express language of the statute.
We hold that gifts, including inheritances, should be
considered in the gross income computation. 2 If the application
of the guidelines after including the gift is unjust or
inappropriate, the chancellor may make written findings and
deviate from the guidelines amount based on the statutory
factors in Code § 20-108.1(B). Specifically, the chancellor may
consider "other factors" in the determination of whether to
deviate from the guidelines amount. See Code § 20-108.1(B)(18).
We hold "other factors" include, but are not limited to:
whether the financial resources were used to reduce marital
2
In Smith v. Smith, 18 Va. App. 427, 434, 444 S.E.2d 269,
274 (1994), we held that the trial judge did not abuse his
discretion in failing to include capital gains in the gross
income computation where the realization of the capital gains
was not contemporaneous with the support hearing and "[n]o
income realized from the capital gain[s] remained as a liquid
asset from which support could be paid." We also noted that the
gains were "used to reduce marital debt or enhance the marital
estate and presumably [were] taken into account" in the
concomitant equitable distribution proceeding. Id. Smith makes
clear that contemporaneous capital gains should be included in
the gross income computation. Determining what income is
contemporaneous is an issue for the trier of fact, depending on
the circumstances of each case, subject to the appropriate
standard of review on appeal. However, we do not read Smith to
hold that it would be error to include non-contemporaneous
capital gains in the gross income computation. Deviation from
the guidelines amount may be appropriate depending on the
circumstances.
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debt, enhance the marital estate or benefit any child; whether
the asset is received with regularity; whether the asset is
liquid; and whether the asset or property is income-producing.
Therefore, the gifts to appellee from the Raymond Cohen Trust,
the Leonard Lewis Trust, the Leah Cohen Trust, and Raymond
Cohen, individually, should have been considered by the
chancellor in computing appellee's gross income. Additionally,
the inheritance, including the shares of stock, appellee
received from the Bernadine/Louis Silverman Trust should have
been considered in the chancellor's computation of gross income.
Finally, appellant contends the chancellor erred in
disregarding appellant's request for attorney's fees and costs.
We find that the chancellor did not disregard appellant's
request for attorney's fees but failed to rule on appellant's
request for costs. The chancellor accepted appellant's exhibit
regarding fees and costs at the June 8, 1998 hearing, and ruled
that each party would be responsible for his or her own
attorney's fees in his letter opinion dated June 11, 1998. We,
therefore, remand this matter for consideration by the
chancellor of appellant's request for costs.
III. CONCLUSION
For these reasons, we hold that the chancellor did not err
in eliminating appellant's midweek overnight visitation with the
parties' child, because credible evidence supports the
chancellor's determination that the best interests of the child
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required a stable routine during the work week. We also hold
that the chancellor erred in the computation of appellee's gross
income. We remand this matter for computation of appellee's
gross income pursuant to the views stated herein. Further, we
hold that the chancellor did not disregard appellant's request
for attorney's fees but failed to rule on the issue of costs.
Therefore, we remand for consideration of an award for costs.
Affirmed in part,
reversed in part
and remanded.
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Elder, J., concurring.
I concur in the result reached by the majority but write
separately to clarify my view of the holding in Smith v. Smith,
18 Va. App. 427, 444 S.E.2d 269 (1994), discussed by the
majority in footnote 2. I interpret Smith to hold that
contemporaneous gains must be included in the gross income
calculation and that non-contemporaneous capital gains
ordinarily may not be included. See id. at 434, 444 S.E.2d at
274. Determining what income is contemporaneous is an issue for
the trier of fact, depending on the circumstances of each case,
subject to the appropriate standard of review on appeal. Income
not received contemporaneously may nevertheless serve as a basis
for deviating from the presumptive amount. See Code
§ 20-108.1(B).
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