Murray L. Steinberg v. Katherine T. Steinberg, etc

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Humphreys

MURRAY L. STEINBERG

v. Record No. 0525-00-2

KATHERINE T. STEINBERG, N/K/A
KATHERINE T. SHUMAKER MEMORANDUM OPINION *
PER CURIAM
MURRAY L. STEINBERG AUGUST 8, 2000

v. Record No. 0602-00-2

KATHERINE T. STEINBERG, N/K/A
KATHERINE T. SHUMAKER

FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge

(Murray L. Steinberg, pro se, on briefs).

(Murray J. Janus; Bremner, Janus, Cook &
Marcus, on brief), for appellee.

Murray L. Steinberg appeals the decision of the circuit court

denying his motions to change venue and for modification of

custody, visitation and child support. Steinberg raises twelve

issues on appeal, which we address seriatim below. Upon reviewing

the record and briefs of the parties, we conclude that these

appeals are without merit. Accordingly, we summarily affirm the

decision of the trial court. See Rule 5A:27.

* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
 Background

These consolidated cases are the latest in an extensive

series of appeals filed by Steinberg arising from his divorce from

Katherine T. Shumaker and the resulting custody, visitation and

support issues. 1 The current dispute arose when Steinberg filed a

motion to reinstate and a motion seeking a change of venue on

April 14, 1999. In an opinion letter, the trial court indicated

that it would deny the motion to change venue. The trial court

entered an order incorporating its opinion letter on March 13,

2000. On May 10, 1999, Steinberg filed a second motion to

reinstate and a motion for a modification of support, custody and

visitation. By order entered August 2, 1999, the trial court

denied the motion for modification. On the same day, Steinberg

filed a motion to vacate, arguing that there was no compelling

state interest and that the court lacked subject matter

jurisdiction. Steinberg also filed a subpoena duces tecum,

seeking records related to the legal fees the trial court ordered

him to pay Shumaker, a motion seeking verification of child care

1
Steinberg v. Steinberg, Nos. 1839-91-2, 2036-91-2,
2172-91-2 (Va. Ct. App. Feb. 9, 1993); Steinberg v. Steinberg,
Nos. 0534-92-2, 1678-92-2 (Va. Ct. App. June 15, 1993);
Steinberg v. Steinberg, No. 0971-92-2 (Va. Ct. App. Dec. 7,
1993); Steinberg v. Steinberg, 21 Va. App. 42, 461 S.E.2d 421
(1995) (Record No. 2111-93-2); Steinberg v. Steinberg, No.
0874-95-2 (Va. Ct. App. Mar. 21, 1996); Steinberg v. Steinberg,
No. 1064-95-2 (Va. Ct. App. Jan. 30, 1996); Steinberg v.
Steinberg, No. 2315-95-2 (Va. Ct. App. June 18, 1996); and
Steinberg v. Steinberg, No. 2557-96-2 (Va. Ct. App. July 15,
1997).

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costs, and a motion for mediation. The trial court granted

Shumaker's motion to quash the subpoena regarding her attorney's

records, granted her motion to quash a subsequent subpoena duces

tecum directed to Shumaker's employer, and denied Steinberg's

motions to dismiss for lack of jurisdiction, to reconsider, and to

set aside all previous orders for lack of compelling state

interest. On March 13, 2000, the trial court entered an

additional order denying Steinberg's motions to vacate all

previous orders for lack of subject matter jurisdiction, lack of

compelling state interest and alleged fraud on the court by

Shumaker and her counsel.

By notice filed January 6, 2000, Shumaker indicated she would

seek to have Steinberg found in contempt for his failure to pay

$405 as his share of the child's 1997 orthodontist expenses.

The trial court held an ore tenus hearing on January 18,

2000, at which both parties presented evidence. The trial court

subsequently denied Steinberg's motion to modify visitation,

custody and support by order entered February 8, 2000. While

Steinberg filed a motion seeking a stay of execution on the ground

that he had been found to be indigent in the past, the trial court

denied the requested stay of execution.2 Steinberg appealed.

2
On July 13, 2000, Steinberg filed with this Court a motion
seeking a stay of execution of the trial court's order requiring
him to pay attorney's fees and costs. We deny that motion.

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 Analysis

I. Lack of a Hearing

Steinberg contends that the trial court erred by failing to

hold an evidentiary hearing prior to ruling on several of his

motions, including the motions to change venue and challenging

subject matter jurisdiction. We find no error.

Whether to receive evidence is a matter left to the

discretion of the trial court, whose decision will not be reversed

in the absence of an abuse of that discretion. The motions were

decided by a judge who was familiar with the parties and the

issues, and who had conducted numerous hearings throughout the

extended litigation. Steinberg's allegations of fraud and lack of

subject matter jurisdiction were repetitious and duplicative of

previous motions heard and rejected by the trial court. His

challenge to the lack of compelling state interest was based upon

questions of law, not fact. His motion to change venue was based

upon the single factual allegation of the parties' relocation. In

light of Shumaker's objection to the motion, and the court's

extensive experience with the parties, we cannot say that the

trial court's decision to deny that motion without receiving

evidence was an abuse of discretion. We therefore find no abuse

of discretion in the trial court's decision not to hold

evidentiary hearings on these motions.

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 II. Motion to Change Venue

Steinberg filed a motion to change venue based upon the fact

that the parties and the child now resided in Hanover County.

Steinberg alleged that it was therefore in the child's best

interest for this matter to be transferred to Hanover County. The

trial court denied this motion on the ground that both parties did

not agree to the change of venue. We find no error.

The parties have a lengthy history of litigation in the

courts of Henrico County. While both parents now reside in

Hanover County, that fact alone did not require the trial court to

grant Steinberg's motion to change venue. "Whether to grant such

a motion is within the discretion of the trial court, and the

trial court's denial of the motion will not be reversed absent an

abuse of that discretion." Virginia Elec. & Power Co. v. Dungee,

258 Va. 235, 245, 520 S.E.2d 164, 170 (1999). Nothing in the

record supports Steinberg's bare contention that a transfer of

venue was in the child's best interests. We find no abuse of

discretion in the trial court's decision to retain the matter in

the Circuit Court of Henrico County.

III. Ex parte Communication

Steinberg further contends that the trial judge engaged in an

improper ex parte communication with Shumaker. In his opinion

letter denying Steinberg's motion to change venue, the trial judge

stated:

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 I have received your motion and order
with regard to a change of venue. It is my
practice not to order a transfer unless both
parties agree.

I understand that Ms. Katherine
Steinberg objects to the change. Therefore
I will not order a change in venue.

Steinberg presented no evidence that the trial judge had any

direct communication with Shumaker or her counsel. Moreover,

the bar against ex parte communication "arises only when 'an ex

parte communication relates to some aspect of the [trial].'"

Ellis v. Commonwealth, 227 Va. 419, 423, 317 S.E.2d 479, 481

(1984) (holding that the trial judge did not participate in an

improper ex parte communication when he interviewed a juror in

chambers without notifying the defendant). Here, assuming

arguendo that the record proved that the trial judge spoke with

Shumaker or her counsel, the challenged communication was at

most administrative in nature, relating solely to whether the

motion to change venue was opposed. Steinberg has failed to

demonstrate any improper ex parte communication between the

trial judge and Shumaker.

IV. Lack of Subject Matter Jurisdiction

The question of the trial court's jurisdiction to hear this

case has been raised and addressed before. See, e.g., Steinberg

v. Steinberg, No. 2557-96-2 (Va. Ct. App. July 15, 1997). We

therefore do not address this question further.

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 V. Lack of Compelling State Interest

Steinberg contends "[n]o court has ever determined that the

state has a compelling interest in the instant case," and argues

that the trial court erred by acting without a compelling state

interest. This contention lacks merit. The parties were

properly before the circuit court, which had jurisdiction to

resolve issues of child support, custody and visitation. See,

e.g., Code § 20-107.2. The case cited by Steinberg, Williams v.

Williams, 256 Va. 19, 501 S.E.2d 417 (1998), which arose in the

context of grandparents seeking visitation against the wishes of

the parents, is inapposite to the facts in this case and

inapplicable to the analysis of any pending issues.

VI. Imputation of Income

As the party seeking to modify child support, Steinberg bore

the burden to prove that there had been a material change in

circumstances warranting a reduction in child support. "Once a

child support award has been entered, only a showing of a material

change in circumstances will justify modification of the support

award. The moving party has the burden of proving a material

change by a preponderance of the evidence." Crabtree v. Crabtree,

17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993). The trial court

imputed $30,000 in income to Steinberg in its 1993 order of

support. Because the trial court previously had ruled on the

question of imputation of income in the context of child support,

the burden to demonstrate a change in circumstances underlying the

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court's existing decision, including evidence that imputation of

income was no longer appropriate, fell to Steinberg.

Steinberg based his motion on a reduction in his income. He

denied that he had more than $1,000 in annual income in 1999,

although he admitted that he and his new wife moved into a new

home which she purchased for approximately $270,000; that they

regularly took the child on trips to Florida; that their vacations

and "educational, fun trips" with the child included trips to

Disney World, MGM, Epcot, Universal Studios, Mexico, San

Francisco, Los Angeles, Hollywood, New York City, Daytona Beach

and Alexander Springs; and that they took the child to baseball

games and amusement parks. The trial court did not err when it

required Steinberg to bear the burden of presenting evidence why

the trial court should no longer impute income to him.

VII. Failing to Recalculate Child Support

Steinberg contends that the trial court failed to consider

all current evidence when ruling on his motion to modify child

support. This contention is without merit. The inquiry into

the modification of child support focused on Steinberg's alleged

reduction in income, the sole ground on which he based his

motion. The trial court was not required to examine other

statutory factors that were not at issue. The burden of proof

remained on Steinberg as the party seeking to modify an existing

child support order. The trial court found that Steinberg

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failed to prove a material change in circumstances warranting a

modification, and its decision is supported by evidence.

VIII. Failing to Follow Statutory Requirements

Steinberg contends that the trial court failed to consider

all the statutory factors set out in Code § 20-124.3 when it

ruled that he failed to prove a material change in circumstances

warranted a change in custody. We disagree.

As the party seeking to modify the existing custody order,

Steinberg bore the burden to prove "'(1) whether there has been

a [material] change in circumstances since the most recent

custody award; and (2) whether a change in custody would be in

the best interests of the child.'" Wilson v. Wilson, 18 Va.

App. 193, 195, 442 S.E.2d 694, 696 (1994) (quoting Visikides v.

Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986)). "In matters

concerning custody and visitation, the welfare and best

interests of the child are the 'primary, paramount, and

controlling considerations.'" Kogon v. Ulerick, 12 Va. App.

595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). The

trial court is vested with broad discretion to make the

decisions necessary to safeguard and promote the child's best

interests, and its decision will not be set aside unless plainly

wrong or without evidence to support it. See Farley v. Farley,

9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990).

Steinberg bore the burden to present evidence to the trial

court demonstrating that a material change in circumstances

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warranted a change in custody and that the change was in the

child's best interests. The trial court's order specifically

states that it considered all the statutory factors. The trial

court found that the child continues to do well under the

current custody and visitation arrangement. Evidence supports

the trial court's decision. We find no error in the trial

court's decision to deny Steinberg's motion to change custody.

IX. Failing to Communicate the Basis of the Decision

Steinberg contends that the trial court failed to

communicate the basis of its decision denying his motion to

modify custody and visitation. This contention is not supported

by the record. The trial court expressed the basis for its

decision in its opinion letter to the parties dated January 24,

2000.

X. Discovery Violations

Steinberg contends that the trial court allowed Shumaker

access to irrelevant materials, including the costs and dates of

his trips with the child, but denied him access to information

relevant to his pending motions. Decisions relating to

discovery generally rest "within the trial court's discretion

and will be reversed only if the action taken was improvident

and affected substantial rights." Rakes v. Fulcher, 210 Va.

542, 546, 172 S.E.2d 751, 755 (1970). There must be

demonstrable prejudice for a reviewing court to find an abuse of

discretion. See id.

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 As the party seeking a decrease in his child support

payment based upon reduced income, Steinberg placed his income,

assets, and other financial resources as an issue before the

court. We find no error in the trial court's order requiring

Steinberg to disclose information relating to certain

expenditures, housing, loans, and income.

Our review of the challenged discovery decisions by the

trial court demonstrates that the trial court granted Shumaker's

motions to quash Steinberg's requests for information that was

not relevant to his petition for a modification. Because

Steinberg's petition was based upon changes in his

circumstances, information concerning Shumaker's income and

expenses were not relevant.

The trial court denied Steinberg's motion to compel

production of records of Shumaker's counsel, including fee

arrangements with other clients. Steinberg sought the records

to support his repeated allegations of fraud by counsel.

"Typically, the attorney-client privilege does not extend to

billing records and expense reports." Chaudhry v. Gallerizzo,

174 F.3d 394, 402 (4th Cir. 1999). "'However, correspondence,

bills, ledgers, statements, and time records which also reveal

the motive of the client in seeking representation, litigation

strategy, or the specific nature of the services provided, such

as researching particular areas of law, fall within the

privilege.'" Id. (quoting Clarke v. American Commerce National

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Bank, 974 F.2d 127, 129 (9th Cir. 1992)). The trial court found

no evidence to support Steinberg's allegations of fraud in the

past. Evidence gathered at the January 18, 2000 hearing also

refuted Steinberg's claim that Shumaker and her counsel were

perpetrating a fraud. We therefore find no abuse of discretion

in the denial of this motion to compel.

Steinberg does not allege any prejudice resulted from the

trial court's denial of his interrogatories relating to

Shumaker's activities with the child or her propensity to

support his relationship. Steinberg obtained answers through

requests for admissions and cross-examination of Shumaker during

the hearing.

Therefore, in sum, we find no abuse of discretion on the

part of the trial court in its handling of the parties'

discovery.

XI. Ruling on Orthodontist Expenses and Failing to Rule on
Other Motions

Steinberg contends that the trial court erred when it

ordered him to pay $405 as his share of a 1997 orthodontic bill

because there was no motion attached to Shumaker's notice that

she would move for payment of the outstanding debt at the

scheduled hearing. Shumaker testified that she provided

Steinberg with a copy of the bill previously and that a copy was

sent to Steinberg with the notice. Steinberg had an ongoing

obligation to pay 36% of the cost of extraordinary medical and

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dental expenses. We find no error in the trial court's order

requiring Steinberg to pay an amount previously due and owing.

While Steinberg also lists a number of motions which he

claims were never ruled on, our review of the record

demonstrates that the trial court responded to all timely-filed

motions. Moreover, this contention is frivolous. Steinberg

argues that the trial court failed to respond to his Motion for

Modification of Child Support, apparently refusing to view the

trial court's order of February 8, 2000, denying "Petitioner's

Motion to reduce child support" as a dispositive ruling on his

motion. The trial court's failure, if any, to rule on any of

Steinberg's duplicate and repetitive filings seeking multiple

reconsiderations of the same issues, is not reversible error.

XII. Attorney's Fees

An award of attorney's fees is a matter submitted to the

sound discretion of the trial court and is reviewable on appeal

only for an abuse of discretion. See 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 the circumstances.

See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162

(1985). "'Although evidence of time expended by counsel and the

charges made to the client is the preferred basis upon which a

trial judge can formulate a reasonable award, it is not the only

basis.'" Davis v. Davis, 8 Va. App. 12, 17, 377 S.E.2d 640, 643

(1989) (quoting McGinnis v. McGinnis, 1 Va. App. 272, 277, 338

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S.E.2d 159, 162 (1985)). While Steinberg contends that Shumaker

is responsible for this litigation, the record does not support

that contention. Moreover, evidence supports the amount of the

trial court's award. Therefore, we cannot say that the award was

unreasonable or that the trial judge abused his discretion in

making the award.

In addition, Shumaker moves this Court for attorney's fees

and costs related to these appeals. We grant the motion, and

remand the matter to the trial court with instructions to

determine and enter an appropriate order.

Accordingly, the decision of the circuit court is summarily

affirmed, and the matter is remanded to the trial court to enter

an award relating to appellate attorney's fees.

Affirmed and remanded.

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