COURT OF APPEALS OF VIRGINIA
Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia
EDWARD H. HABBOUSH
MEMORANDUM OPINION * BY
v. Record No. 2145-99-2 JUDGE ROBERT J. HUMPHREYS
JUNE 13, 2000
ELIZABETH H. WALSH, F/K/A
ELIZABETH H. HABBOUSH
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L.A. Harris, Jr., Judge
S. Keith Barker (S. Keith Barker, P.C., on
briefs), for appellant.
Thomas O. Bondurant, Jr., for appellee.
Edward H. Habboush (father) appeals the decision of the
trial court denying his motions for child support, modification
of visitation and attorney's fees. He contends that the trial
court specifically erred in failing to order child support nunc
pro tunc as of November 21, 1997; failing to further limit
Elizabeth H. Walsh's (mother) visitation; failing to order the
payment of attorney's fees for expenses incurred in seeking
information on mother's income; and failing to accept
depositions into evidence.
For the reasons that follow, we affirm the decision of the
trial court.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to the
disposition of the appeal.
On appeal, we review the evidence and all reasonable
inferences in the light most favorable to the party prevailing
below. The trial court's finding will not be disturbed on
appeal unless plainly wrong or without evidence to support it.
See Martin v. Pittsylvania County Department of Social Services,
3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
SUPPORT NUNC PRO TUNC
"[D]ecisions 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 evidence." Barnhill v.
Brooks, 15 Va. App. 696, 699, 427 S.E.2d 209, 211 (1993)
(citation omitted).
Based upon the evidence presented at the June 7, 1999
hearing, the trial court imputed $583 in monthly income to
mother and ordered her to pay $550 in monthly child support,
effective June 1, 1999. Father contends that the trial court
erred when it refused to order mother to pay this same amount of
child support retroactive to November 21, 1997. In support of
this contention, father relies upon an order entered by another
judge of the circuit who had responsibility for this case before
his retirement from the bench. That order, entered December 2,
1997, directed the parties to
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forthwith meet and confer as to the amount
of child support to be paid to the custodial
parent [father] by the non-custodial parent
[mother], and submit an endorsed decree
fixing the same upon reaching an agreement,
and only if an agreement cannot be reached
and it becomes necessary to do so, to
schedule a hearing to set the support
amount, nunc pro tunc November 21, 1997.
Father argues that, because no decree setting an amount of
support was subsequently entered, he was entitled to child
support retroactive to November 21, 1997. However, at the
June 7, 1999 hearing, mother presented evidence, which was
accepted by the trial court, that beginning in 1998 she paid
father $185 in monthly child support pursuant to an agreement
between the parties which was presented to and approved by the
judge previously assigned to the case but never reduced to a
written order.
The evidence established that mother paid monthly child
support pursuant to the parties' agreement from 1998 until the
time of the June 7, 1999 hearing. "'Any child support must be
based on circumstances existing at the time the award is made.'"
Sargent v. Sargent, 20 Va. App. 694, 703, 460 S.E.2d 596, 600
(1995) (citation omitted).
We find no error in the trial court's refusal to order
mother to pay the increased amount of child support retroactive
to November 1997.
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MODIFICATION OF VISITATION
Father contends that the trial court erred when it refused
to modify mother's visitation rights or to hold her in contempt
for violating the court's visitation order. "In matters
concerning custody and visitation, the welfare and best
interests of the child are the 'primary, paramount and
controlling consideration[s].'" Kogon v. Ulerick, 12 Va. App.
595, 596, 405 S.E.2d 441, 442 (1991) (quoting Mullen v. Mullen,
188 Va. 259, 269, 49 S.E.2d 349, 354 (1948)). 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).
Father testified that mother was repeatedly late in
returning the children from visitation, that she failed to
return the children's clothing after visitation and that she had
appeared at a skating rink with her new husband although it was
father's weekend with the children. The trial court had the
opportunity to hear both parties testify, and instructed both
parties to comply with the existing visitation order, but did
not modify visitation or hold mother in contempt. We cannot say
that the decision of the trial court to handle these issues in
that manner was plainly wrong.
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ATTORNEY'S FEES
Father argues that the trial court erred when it refused to
award him attorney's fees he incurred in trying to ascertain
mother's income and financial resources. 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 of the circumstances revealed
by the record. See McGinnis v. McGinnis, 1 Va. App. 272, 277,
338 S.E.2d 159, 162 (1985).
The trial court ruled that both parties had pursued
legitimate issues and ordered each to bear their own attorney's
fees. We cannot say that the trial court's decision was
unreasonable or that the court abused its discretion in refusing
to make an award of attorney's fees to father.
REFUSAL TO ADMIT DEPOSITIONS
Father contends that the trial court erred when it refused
his request to admit mother's deposition into evidence. While
the trial court denied father's request to introduce the
transcript and videotape of mother's deposition, the court gave
father the opportunity to call mother as a witness and to put on
through live testimony any evidence contained in the deposition.
As authority for his position, father relies on Rules 4:0,
4:7(a) and Horne v. Milgrim, 226 Va. 133, 306 S.E.2d 893 (1983).
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His reliance on these authorities is misplaced. In Horne, the
plaintiff sought to introduce the defendant's deposition at
trial, pursuant to Rule 4:7(a)(3). That rule states:
The deposition of a party or of anyone
who at the time of taking the deposition was
an officer, director, or managing agent, or
a person designated under Rule 4:5(b)(6) or
4:6(a) to testify on behalf of a public or
private corporation, partnership or
association or governmental agency which is
a party may be used by an adverse party for
any purpose.
Id. The trial court found that Rule 4:7(a)(3) was inapplicable,
thereby forcing the plaintiff to call the defendant as an
adverse witness. The Supreme Court of Virginia reversed,
finding that the trial court erred by barring the plaintiff from
introducing the adverse party's deposition. See Horne, 226 Va.
at 138, 306 S.E.2d at 895.
However, Horne was an action at law arising in a wrongful
death case. This case, involving as it does issues of child
support and visitation, is a suit in equity.
Subsection (1) of Rule 4:7(a) provides that
[a]ny deposition taken in a suit in
equity may be used for any purpose;
provided, however, that such a deposition
may be used on an issue out of chancery or a
hearing ore tenus only as provided by
subdivision (a)(4) of this Rule.
(Emphasis added.) Subsection (a)(4) of Rule 4:7 in turn
provides, in pertinent part:
The deposition of a witness, whether or
not a party, may be used by any party for
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any purpose in any action at law, issue out
of chancery or hearing ore tenus in equity
if the court finds: (A) that the witness is
dead; or (B) that the witness is at a
greater distance than 100 miles from the
place of trial or hearing, or is out of this
Commonwealth, unless it appears that the
absence of the witness was procured by the
party offering the deposition; or (C) that
the witness is unable to attend or testify
because of age, illness, infirmity, or
imprisonment; or (D) that the party offering
the deposition has been unable to procure
the attendance of the witness by subpoena;
. . . or (F) upon application and notice,
that such exceptional circumstances exist as
to make it desirable, in the interest of
justice and with due regard to the
importance of presenting the testimony of
witnesses orally in open court, to allow the
deposition to be used.
Since this was an ore tenus hearing of a suit in equity, the
deposition of an adverse party was only admissible, other than
for impeachment purposes, where the party was unavailable to be
called as a witness or where "exceptional circumstances" existed
as specified in Rule 4:7(a)(4). Because mother was available to
testify and indeed did so, and because father made no showing of
"exceptional circumstances" as required by Rule 4:7(a)(4)(F), we
find no error in the trial court's refusal to admit the
deposition.
Affirmed.
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Edward H. Habboush v. Elizabeth H. Walsh, f/k/a etc
Combined Opinion