COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Senior Judge Hodges
JUDY L. HEARD
MEMORANDUM OPINION *
v. Record No. 1221-01-1 PER CURIAM
FEBRUARY 5, 2002
KEVIN HEARD
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles D. Griffith, Jr., Judge
(Judy L. Heard, pro se, on brief).
No brief for appellee.
Judy L. Heard, appellant, appeals a decision of the trial
court finding that Kevin Heard, appellee, owes her $3,662.63 in
child support arrearages. Appellant argues the trial court erred
by refusing to consider the full amount of arrearages confirmed by
the Division of Child Support Enforcement (DCSE) and by failing to
review her evidence. Appellant also contends she did not receive
adequate representation from her attorney. We conclude that this
appeal is without merit and summarily affirm the ruling of the
trial court. Rule 5A:27.
The parties appeared in the trial court on April 11, 2001
concerning the issue of the amount of child support arrearages.
Appellant testified concerning her calculation of the amount of
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the arrearage. Appellant presented some written records, but she
stated that some of her records were unavailable because of a
"recent move." Appellant also indicated that appellee made most
of the child support payments in cash and that she kept records of
the payments on a memo pad or on a calendar. Appellant presented
an affidavit reflecting the payments.
Appellee disputed appellant's computation of the arrearage.
He also testified that he paid most of the support payments in
cash by either leaving the cash at appellant's home or depositing
the cash into appellant's bank account. When asked for evidence
to support his testimony, appellee stated that he could not afford
to pay the $2.50 fee to obtain the bank records.
A representative from DCSE was present at the hearing, and
she testified regarding the procedures used to calculate the
arrearage amount. The trial court requested that the DCSE
representative determine during the hearing the amount of the
arrearage from March 1998, when appellant first opened her case
with DCSE, to the present.
The trial court concluded that both appellant and appellee
were "negligent because they appeared in court without any
evidence to corroborate the amount in dispute." The court further
ruled that, "[d]ue to the evidentiary problem noted by the Court
(i.e., conflicting affidavits and testimony)," no arrearage was
owed prior to the case being opened with DCSE in March 1998. The
trial court accepted the arrearage amount as determined by DCSE
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and decreed that the total child support arrearage was $3,662.63,
plus interest, as of November 30, 2000. The court ordered that
appellee pay appellant $100 per month toward the arrearage until
paid in full on April 1, 2001.
Appellant argues the trial court erred in determining the
amount of arrearages.
"The burden is on the party who alleges
reversible error to show by the record that
reversal is the remedy to which he is
entitled." We are not the fact-finders and
an appeal should not be resolved on the
basis of our supposition that one set of
facts is more probable than another.
Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859
(1992) (citations omitted).
The trial court found that neither appellant nor appellee
presented sufficient evidence from which it could determine the
amount of arrearages due to appellant. "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). Because the parties presented inadequate evidence
from which the court could determine the arrearage amount, the
trial court requested that the representative from DCSE
determine the amount of arrearages due from the time that
appellant filed her claim with DCSE. The trial court then
accepted the figure as computed by DCSE. Resolution of a
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dispute of facts is within the discretion of the trial court.
Howell v. Howell, 31 Va. App. 332, 341, 523 S.E.2d 514, 519
(2000). Thus, credible evidence supports the trial court's
determination of the amount of arrearage, and we will not
disturb that determination.
In her questions presented, appellant contends the trial
court erred by not reviewing her evidence. However, the written
statement of facts does not indicate appellant made this argument
to the trial court. "The Court of Appeals will not consider an
argument on appeal which was not presented to the trial court."
Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998). See 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.
To the extent that appellant complains that she received
ineffective representation from her counsel, this Court is not the
proper forum to resolve such a dispute in a civil matter.
For the foregoing reasons, the judgment of the trial court is
affirmed.
Affirmed.
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