COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia
RUSSELL EDWARD PEVERELL
MEMORANDUM OPINION * BY
v. Record No. 0060-01-4 JUDGE G. STEVEN AGEE
APRIL 23, 2002
KAREN FAYE (CONDER) ESKEW
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge
Timothy B. Beason (Law Offices of Gwendolyn
Jo M. Carlberg; Shoun & Bach, on briefs),
for appellant.
(Paul A. Scott; Madigan & Scott, Inc., on
brief), for appellee. Appellee submitting
on brief.
Russell E. Peverell (father) appeals orders of the
Alexandria Circuit Court denying his motions for the appointment
of a guardian ad litem for his minor daughter, a restraining
order, the modification of child support, an award of attorney's
fees and a decree requiring the parties to submit to
pre-docketing review and approval of their future motions. For
the following reasons we affirm in part and reverse in part.
I. BACKGROUND
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, only those facts necessary to a disposition of this
appeal are recited.
Father and Karen C. Eskew (mother) were divorced in 1990
and have been engaged in some form of litigation ever since.
Mother was granted physical custody of the parties' two minor
children (Kate and Ryan). The children have lived for several
years with mother and her second husband (Mr. Eskew) and their
two children in California. A complaint was filed with the
California Department of Child and Family Services in June 2000,
alleging Mr. Eskew had sexually abused Kate. Upon learning of
the complaint in September 2000, father filed a motion with the
Alexandria Circuit Court on October 4, 2000, requesting, inter
alia, an order awarding father sole legal and physical custody
of Ryan, a restraining order to require mother to forbid Mr.
Eskew from being in the presence of the parties' children, 1 and
the appointment of a guardian ad litem for Kate.
On October 24, 2000, by an agreed order, father was awarded
physical custody of Ryan. Also on that day, the trial court
heard evidence with regard to the motion for a guardian ad litem
for Kate and whether a restraining order regarding Mr. Eskew
should be issued. The trial court orally granted the motion to
appoint a guardian ad litem for Kate and requested investigative
1
We refer to the requested order as a restraining order
herein even though it would be directed to mother to cause the
restraint of Mr. Eskew and not to Mr. Eskew directly.
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information regarding the circumstances surrounding the need for
a restraining order. On December 13, 2000, the trial court
entered an order denying, without prejudice, the request to
appoint a guardian ad litem for Kate and denied the motion for a
restraining order against mother as to Mr. Eskew. 2
Father also filed a motion to modify child support in light
of the change in Ryan's custody. The issue of child support and
the remaining issues from the October 4, 2000 motion were
considered by the trial court on December 18, 2000.
On that day, the trial court heard testimony regarding
mother's income. Mother testified that she and Mr. Eskew (from
whom she was then separated) maintain a joint checking account
in which both their payroll checks are deposited. Mother
testified that Mr. Eskew had agreed to pay her "guideline"
spousal support; however, she testified that she had not
received any since the separation began. The record does not
contain either a written agreement executed by mother and Mr.
Eskew regarding spousal support or a court order directing
payment of spousal support.
2
On November 28, 2000, the trial court, in a letter
opinion, denied the request for a restraining order, stating
"the courts in California are best equipped to deal with the
particular aspects of this case arising out of the alleged
conduct of [mother's estranged husband]." A copy of a November
2, 2000 order of the Los Angeles County, California Superior
Court was submitted to the trial court which restrains Mr. Eskew
from coming within 100 yards of mother, her residence or the
children's school.
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Mother further testified that Mr. Eskew was paying most of
her household and living expenses, but these payments were not
in lieu of spousal support. Mother also testified that while
she had previously been employed full-time, she was currently
employed only part-time due to stress and the need to be home
with the children. After hearing the parties' testimony and
reviewing the evidence, the trial court stated from the bench
regarding mother's employment:
I find specifically that [mother] is not
voluntarily underemployed and that there is
no reason to attribute or impute any other
income . . . .
* * * * * * *
[S]he's not voluntarily under-employing for
purposes of reducing any child support
obligation she may have had.
In addition, the court, sua sponte, announced:
I think there needs to be in this case a
moratorium on Court hearings. What I'm
going to then order is that there will be no
further matter put on this Court's docket
without the express consent of the Court
based on a written pleading filed by
whichever party seeks to put it back on,
absent some true emergency . . . .
Accordingly, the trial court entered a decree on December 18,
2000, requiring father to pay mother $268 per month for Kate's
support. No attorney's fees were awarded to either party. The
decree also provided:
No further matters shall be put on this
court's docket without the expressed consent
of this court based upon a written pleading
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filed by whichever party seeks to put the
matter on the docket, absent some true
emergency.
II. ANALYSIS
A. THE RESTRAINING ORDER
Father contends the trial court erred in failing to grant
an order requiring mother to restrict Mr. Eskew's access to Kate
and Ryan. We disagree.
Father's assignment of error regarding his son is moot as
father now has physical custody of Ryan. As to Kate, we note
that a trial court has discretion in determining whether to
issue a restraining order. In this case, it was not error to
deny the motion when there was evidence the California courts
were overseeing the matter and that mother was limiting her
estranged husband's contact with the daughter. Moreover, the
trial court had no jurisdiction over Mr. Eskew and no power,
through mother or otherwise, to compel any particular action by
a California court. Credible evidence supports the trial
court's decision, and we will not reverse it.
B. GUARDIAN AD LITEM APPOINTMENT
On appeal, father also contends the trial court erred in
failing to appoint a guardian ad litem for Kate. Again, we
disagree.
Father's motion did not request custody of Kate, but only
that a guardian ad litem "determin[e] what would be in Kate's
best interest with regard to custody." While the trial court
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indicated from the bench at one point that a guardian ad litem
would be appointed, no order was entered to do so.
Subsequently, no motion for change of custody having been filed,
the trial court determined that the appointment of a guardian ad
litem was not then warranted. We do not find the trial court's
decision to be erroneous.
The established rule is that a guardian ad litem may be
appointed after a trial judge, who is considering any legal
proceeding in which the rights of a minor are involved, makes a
preliminary finding that the best interests of the child require
such appointment. See Verrocchio v. Verrocchio, 16 Va. App.
314, 317, 429 S.E.2d 482, 484 (1993). No finding was ever made
by the trial court that Kate's best interest required the
appointment of a guardian. Further, as there were no present
issues before the trial court in which the rights of the
daughter were involved, the trial court did not abuse its
discretion in failing to appoint a guardian ad litem for Kate.
C. CHILD SUPPORT
1. MOTHER'S GROSS INCOME
Father also contends the trial court erred in applying the
statutory provisions of Code §§ 20-108, 20-108.1 and 20-108.2,
which resulted in the trial court failing to include all of
mother's gross income in its child support determination. Upon
review, we remand this matter for further findings by the trial
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court as the record is inadequate to permit appellate review on
this issue.
"Decisions concerning . . . [child] support rest within the
sound discretion of the [circuit] court . . . . " Calvert v.
Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994). "The
trial court's decision, when based upon credibility
determinations made during an ore tenus hearing, is owed great
weight and will not be disturbed unless plainly wrong or without
evidence to support it." Douglas v. Hammett, 28 Va. App. 517,
525, 507 S.E.2d 98, 102 (1998).
After finding a change in material circumstances, as the
trial court did in this case, the starting point for determining
the child support obligation of a party at a modification
hearing, is to compute the presumptive amount using the
guidelines and schedule found in the Code. See Watkinson v.
Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473 (1991). Code
§ 20-108.2, the statutory guideline for determining the
presumptive amount of child support, is based on each party's
gross income. "Gross income" is defined, in pertinent part, as:
"[A]ll income from all sources, and shall include . . . spousal
support . . . ." Code § 20-108.2(C).
Neither a written agreement by the parties nor a court
order, requiring the payment of spousal support to mother from
Mr. Eskew, is in the record. However, father argues the expense
payments made by Mr. Eskew to mother were nonetheless de facto
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spousal support and should be part of mother's gross income as
"income from all sources." While mother denied, without
contradiction, that the expense payments were in lieu of spousal
support, she affirmed the amount and types of such payments.
Upon review of the record, we conclude, by inference, that
the trial court decided not to include the payments on behalf of
mother by Mr. Eskew in her gross income as "income from all
sources," but there is no factual finding by the trial court as
to why these payments were excluded. There must be a proper
foundation in the record to support the granting of an award and
the amount of the award. See, generally, Stumbo v. Stumbo, 20
Va. App. 685, 693, 460 S.E.2d 591, 595 (1995). We are thus
unable to determine from the record whether the trial court
erred in its calculation of child support.
As we cannot accomplish an appellate review of the trial
court's decision without its factual determination as to whether
and why Mr. Eskew's payments to mother should be included or
excluded as part of her gross income for purposes of determining
child support, we must remand this issue for findings of fact by
the trial court.
2. IMPUTATION OF INCOME
Father also challenges the trial court's refusal to impute
income to mother whom father alleged was voluntarily
underemployed. We find no error in the trial court's decision.
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The party seeking to impute income has the burden of proof.
Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993).
The decision to impute income is within the sound discretion of
the trial court, and its refusal to impute income will not be
reversed unless plainly wrong or unsupported by the evidence.
Saleem v. Saleem, 26 Va. App. 384, 393, 494 S.E.2d 883, 887
(1998).
On appeal, the evidence is viewed in the light most
favorable to mother, the prevailing party below. See Cook v.
Cook, 18 Va. App. 726, 731, 446 S.E.2d 894, 896 (1994). In this
case, credible reasons support the trial court's decision that
imputation of income was not appropriate, and reflect no abuse
of discretion by the trial court.
It is uncontested that mother was employed previously in a
full-time position and chose to resign that position without
being discharged. Father met his burden of showing mother was
underemployed. Mother was then burdened with producing evidence
to explain why her underemployment was not "voluntary."
Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119
(1991).
Viewing the evidence in the light most favorable to mother,
we find credible evidence to support the finding that mother met
her burden. Mother provided the trial court with cogent reasons
for being employed part-time at the time the support
determination was made. Her reasons included overseeing Ryan's
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recovery from an automobile accident at the start of the new
school year, which was followed by making time and arrangements
for Kate's counseling, dealing with the multiple investigations
by child protective services each time father filed a complaint,
and recovering from her own medical problems. The trial court
found that mother's given reasons provided sufficient
justification to be employed only part-time. Therefore, we find
no error in the trial court's decision that the evidence did not
warrant an imputation of income to mother. See, generally,
Hiner v. Hadeed, 15 Va. App. 575, 425 S.E.2d 811 (1993).
D. ATTORNEYS' FEES
Father also argues that the trial court erred by denying
him attorney's fees. We disagree again.
"An award of attorney fees is discretionary with the court
after considering the circumstances and equities of the entire
case and is reviewable only for an abuse of discretion." Gamer
v. Gamer, 16 Va. App. 335, 346, 429 S.E.2d 618, 626 (1993).
"The key to a proper award of counsel fees is reasonableness
under all of the circumstances revealed by the record."
Ellington v. Ellington, 8 Va. App. 48, 58, 378 S.E.2d 626, 631
(1989). Based on the number of issues involved and the
respective abilities of the parties to pay, we cannot say that
the trial court abused its discretion in ordering the parties to
bear their own attorney's fees. The decision to deny father
attorney's fees is affirmed.
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E. PRE-DOCKETING REVIEW
Lastly, father contends on appeal that the trial court
violated his due process rights when it ordered that no future
matters between the parties be placed on the court's docket for
hearing unless first approved by the court. While the decree
does not bar the filing of pleadings, a new matter, excluding
those arising in "some true emergency," "won't be put on this
court's docket without express[] consent [of the trial court]."
Father contends the trial court's implementation of this
pre-docketing review violates his due process rights. We agree
with father.
We are cognizant of the trial court's power and authority
to control its docket and will not reverse on appeal a trial
court's decision related to the control of its docket unless
there is a showing of an abuse of discretion and prejudice.
See, generally, Mills v. Mills, 232 Va. 94, 348 S.E.2d 250
(1986). Generally, "[t]he determination whether a trial court
has abused its discretion is fact-specific." Walsh v. Bennett,
260 Va. 171, 175, 530 S.E.2d 904, 907 (2000). However, in
assessing the propriety of the imposition of a particular
decision, we may also take into account the context in which the
decision was made and any policy considerations that might be
pertinent to the imposition of that decision. See, e.g., id. at
176, 530 S.E.2d at 907 (holding that, in addition to
constituting an abuse of discretion on the facts of the case,
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the pretrial sanction imposed by the trial court was also
inappropriate because it deprived the plaintiff of a "day in
court"). Under the facts of this case, the parties were denied
due process by the trial court when it imposed the pre-docketing
review requirement.
No "State shall deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws." U.S.
Const. amend. XIV, § 1. "[N]o person shall be deprived of his
life, liberty, or property without due process of law." Va.
Const. art. I, § 11.
"The fourteenth amendment, in declaring that
no State 'shall deprive any person of life,
liberty or property without due process of
law, nor deny to any person within its
jurisdiction the equal protection of the
laws,' undoubtedly intended, not only that
there should be no arbitrary deprivation of
life or liberty or arbitrary spoliation of
property, but that equal protection and
security should be given to all under like
circumstances in the enjoyment of their
personal and civil rights; that all persons
should be equally entitled to pursue their
happiness and acquire and enjoy property;
that they should have like access to the
courts of the country for the protection of
their persons and property, the prevention
and redress of wrongs, and the enforcement
of contracts; and that no impediment should
be interposed to the pursuits of anyone
except as applied to the same pursuits by
others under like circumstances . . . ."
C. I. T. Corp. v. Commonwealth, 153 Va. 57, 63-66, 149 S.E. 523,
525 (1929) (quoting Barbier v. Connolly, 113 U.S. 27, 31 (1884))
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(emphasis added). "Due process requires that, before a court
may deprive a party of a property or liberty interest, the party
must receive notice and the opportunity to be heard." Parish v.
Spaulding, 26 Va. App. 566, 576, 496 S.E.2d 91, 96 (1998)
(citing Williams v. Virginia Elec. & Power Co., 18 Va. App. 569,
576-77 and n.5, 445 S.E.2d 693, 698 and n.5 (1994)).
That portion of the December 18, 2000 order requiring
pre-docketing review was raised and implemented by the trial
court sua sponte. Neither party requested this action, and no
prior notice was given to the parties that the trial court
intended to so act. The trial court heard no argument prior to
issuing its ruling. There is nothing in the record before us
evidencing that either party has abused its right to access the
trial court's docket and warranting the pre-docketing review.
For example, there is no showing of abuse of process or the
filing of frivolous pleadings. 3 Because the record lacks
evidence of the due process procedural requirements, the trial
3
For examples of where there has been an imposition of
restrictions on the right to access a court, see Shief v.
Kakita, 517 U.S. 343 (1996) (after multiple frivolous filings by
the appellant, the Court directed "the Clerk not to accept any
further petitions for certiorari from [appellant] in noncriminal
matters unless he pays the docketing fee required by [Supreme
Court] Rule 38 and submits his petition in compliance with
[Supreme Court] Rule 33.1"); Jones v. ABC-TV, 516 U.S. 363
(1996) (same); Attwood v. Singletary, 516 U.S. 297 (1996)
(same); Brock v. Angelone, 105 F.3d 952, 954-55 (4th Cir. 1997)
(after multiple frivolous filings by the appellant, appellant
enjoined from filing any further civil appeals until monetary
sanctions are paid, and unless a district court judge certifies
that his claim is not frivolous).
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court's sua sponte order, which places barriers upon the
parties' full access to the court is, therefore, contrary to
basic due process and requires reversal. In so holding, we make
no judgment as to whether pre-docketing review may be justified
on the merits of this case, provided the parties are first
accorded the basic rights of notice and the opportunity to be
heard.
Accordingly, we reverse and remand for further findings of
fact as to the issue of whether Mr. Eskew's payments to mother
are to be included or excluded from her gross income when
calculating guideline child support; and we reverse and vacate
that portion of the December 18, 2000 order which bars the
parties from access to the court's docket without prior court
approval. All other decisions by the trial court are hereby
affirmed.
Affirmed, in part;
reversed and remanded, in part;
reversed and vacated in part.
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