COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
MICHAEL L. WASHINGTON
MEMORANDUM OPINION*
v. Record No. 0059-04-4 PER CURIAM
JUNE 29, 2004
STACEY HAGENS
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard B. Potter, Judge
(Ted Kavrukov, on brief, for appellant.)
No brief for appellee.
Michael L. Washington, father, appeals a decision of the trial judge regarding child support
issues. On appeal, father contends the trial judge erred by: (1) not reducing his monthly child
support obligation because he obtained health insurance coverage for the children; (2) denying his
request for a refund in child support payments; and (3) denying his request for child support
payments from Stacey Hagens, mother, for the period during which he had physical custody of the
parties’ children. Upon reviewing the record and opening brief, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of the trial judge. See Rule 5A:27.
Father first contends the facts of the case are in dispute because the trial judge made
corrections to father’s proposed written statement of facts without providing notice to the parties
and holding a hearing. See Rule 5A:8(d). However, the record does not show that father raised an
objection to the trial judge concerning the corrected statement of facts. Although father filed an
objection to the corrected statement of facts in this Court, Rule 5A:18 provides that he must raise an
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
objection to the trial judge before we will consider the issue on appeal. “No ruling of the trial court
. . . will be considered as a basis for reversal unless the objection was stated together with the
grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice.” Rule 5A:18. Accordingly, Rule 5A:18 bars our
consideration of this question on appeal. Moreover, the record does not reflect any reason to
invoke the good cause or ends of justice exceptions to Rule 5A:18. Furthermore, “[t]he judge’s
signature on a . . . written statement, without more, shall constitute his certification that the
procedural requirements of this Rule 5A:8 have been satisfied.” Rule 5A:8(d). The trial judge
signed the corrected written statement of facts. Accordingly, we refer to the corrected statement of
facts signed by the judge in this appeal.
The parties are not married and have four minor children together. They share joint legal
custody of the children, and mother has primary physical custody of the children. The trial judge
initially ordered father to pay mother $1,941 per month in child support. Sometime prior to
February 6, 2002, father filed a motion to reduce his child support obligation. By order entered
on April 3, 2002, the trial judge reduced father’s obligation to $801.92 per month, retroactive to
August 2000. The order also specified that father was to pay mother an additional $499.08 per
month toward a child support arrearage until it was paid in full. In addition, the April 3, 2002
order stated: “The monthly child support shall be reduced 36% upon presenting evidence that
[father] has obtained and has carried health insurance for the children through his employer for 3
consecutive months.” Father did not appeal this order and his counsel endorsed the order, “I
ASK FOR THIS.”
In June 2002, father filed a second motion for a reduction in child support. By order
entered on September 16, 2002, the trial judge noted that custody of the children had changed to
father on March 20, 2002 and that proceedings related to custody were pending in the juvenile
-2-
and domestic relations district court (JDR court). The judge ruled that father was “entitled to
some relief” until the custody hearing was held on the matter on September 11, 2002. Therefore,
the judge ordered that the April 3, 2002 order shall continue in full force and effect with the
exception that father was no longer required to pay the $499.08 per month toward the accrued
arrearage until further order of the court. Father did not appeal this order, and his counsel
endorsed the order, “I ASK FOR THIS.”
Father filed a third motion for a reduction in child support, and the court held a hearing
on the motion on October 20, 2003. By order entered December 5, 2003, the trial judge granted
the motion for a reduction in child support and reduced father’s monthly child support obligation
to $760. The trial judge further found that father no longer owed mother an arrearage in child
support. However, the trial judge denied father’s motions for a “credit” for the cost of health
insurance for the children, a retroactive reduction in child support for the period he had custody
of the children, and retroactive child support payments from mother for the period during which
he had custody of the children. It is from this order that father appeals.
I.
Father contends the trial judge erred by not reducing his child support obligation by 36%
pursuant to the April 3, 2002 order. Father argues he presented evidence in the form of
compensation documents from his employer showing that he had obtained health insurance for
the children through his employer.
“Decisions concerning child support rest within the sound discretion of the trial court and
will not be reversed on appeal unless plainly wrong or unsupported by the evidence.” Smith v.
Smith, 18 Va. App. 427, 433, 444 S.E.2d 269, 274 (1994). It is the province of the fact finder to
determine the credibility of witnesses, their veracity, and the weight to be given their testimony.
Brown v. Commonwealth, 156 Va. 947, 951, 157 S.E. 567, 571 (1931).
-3-
The written statement of facts recites that at the October 20, 2003 hearing, father testified
he had obtained health insurance coverage for his children through his employer and he
introduced “pay stubs” in support of his assertion. However, mother testified that the children
did not receive health insurance benefits through father or his employer, she was never advised
of the existence of any such insurance policy, and she was never supplied with any health
insurance cards for the children.
The trial judge denied father’s motion on several grounds. The trial judge noted that
father did not appeal or object to the April 3, 2002 or the September 16, 2002 orders, both of
which established the terms of his child support obligations. Furthermore, father admitted that
he was in arrears for child support payments during the time he sought credit for heath insurance
costs. The court ruled that father should not be allowed to seek a refund based on the doctrine of
unclean hands. In addition, the written statement of facts provides that father testified he
“discovered after the [entry of the] orders of April and September that his employer had in fact
made certain deductions from his pay to cover a family health insurance policy that ‘could’ have
benefited the children.” However, he presented no evidence that such a policy actually existed
or was made available to mother so that she could have utilized the policy. Rather, mother
testified that she bore the costs of health care for the children during the same period that father
was failing to make his child support payments. The trial judge accepted mother’s testimony.
Therefore, because the evidence failed to show that father complied with the provision of the
April 2, 2003 order by obtaining health insurance coverage for the children, the trial judge did
not abuse his discretion by refusing to reduce father’s child support payments on this ground.
II.
Father next argues that the trial judge erred by denying his request for a reimbursement of
child support payments he paid to mother from March 22, 2002 until December 6, 2002, the
-4-
period during which he had custody of the children. The record shows that in June 2002, father
filed a motion to terminate his child support payments and to receive child support payments
from mother because he had custody of the children. After a hearing on the motions, the trial
judge entered the September 16, 2002 order, which provided that father’s monthly child support
payment of $801.92 would remain in full force and effect. Father did not appeal this order, and
his attorney endorsed the order, “I ASK FOR THIS.” Furthermore, father was over $20,000 in
arrears for child support until he paid mother in full for the arrearages on or about October 1,
2002. The trial judge found that mother was in poor financial condition, due in part to father’s
failure to pay mother child support for a period of time.
The trial judge denied the motion for a retroactive reduction in child support on the
grounds that father had “unclean hands,” father did not appeal the April 2002 or September 2002
orders which did not provide for a modification of child support during the period he had custody
of the children, and the evidence showed father was in a better financial position than mother to
support the children. Under these circumstances, we cannot say the trial judge abused his
discretion by denying the motion for a retroactive reduction in child support.
III.
Father contends the trial judge erred by denying his motion for retroactive child support
payments from mother during the period father had custody of the children. The trial judge ruled
that father failed to show that mother had the ability to pay child support given father’s support
arrearages, that father failed to prove he was in need of child support during the relevant period,
that father’s claim was barred because he failed to take exception to or appeal prior child support
orders, and that father had unclean hands. Furthermore, the judge granted father’s motion for a
reduction in future child support payments, reducing the payments from $801.92 to $760 per
month. Nothing in the record indicates that this decision was an abuse of discretion.
-5-
Accordingly, the decision of the trial judge is summarily affirmed.
Affirmed.
-6-
Michael L. Washington v. Stacey Hagens
Combined Opinion