COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
THOMAS STOKES GRYMES, JR.
MEMORANDUM OPINION *
v. Record No. 1185-99-2 PER CURIAM
OCTOBER 26, 1999
ROBIN L. GRYMES
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
(Murray J. Janus; Deanna D. Cook; Bremner,
Janus & Cook, on brief), for appellant.
(James B. Thorsen; Thorsen, Marchant & Scher,
L.L.P., on brief), for appellee.
Thomas Stokes Grymes, Jr. and Robin L. Grymes were divorced
in 1996. The father appeals the decision of the Henrico County
circuit court dated May 18, 1999 related to custody, support and
attorney's fees. He contends that the trial court erred by: (1)
failing to change physical custody of the parties' children
despite evidence that the mother violated the current visitation
order and engaged in behavior designed to keep the children from
having a positive relationship with the father; (2) failing to
appropriately consider Code §§ 20-124.3 and 20-108 when reviewing
his motion to change custody; (3) "affirming" the juvenile and
domestic relations district court's decision concerning spousal
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
support rather than reviewing the matter de novo; (4) failing to
hold the mother in contempt of court; (5) failing to impute income
to the mother for purposes of calculating spousal and child
support; and (6) awarding the mother attorney's fees. Upon
reviewing the record and briefs of the parties, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. See Rule 5A:27.
Evidence was heard by the trial court in two ore tenus
hearings. The parties agreed to use district court transcripts
for certain witnesses' testimony.
Under familiar principles we view [the]
evidence and all reasonable inferences in
the light most favorable to the prevailing
party below. Where, as here, the court
hears the evidence ore tenus, its finding is
entitled to great weight and will not be
disturbed on appeal unless plainly wrong or
without evidence to support it.
Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App.
15, 20, 348 S.E.2d 13, 16 (1986).
Motion to Change Physical Custody
The father contends that the trial court erred by failing
to change the physical custody of the parties' two boys to him.
He also contends that the mother repeatedly violated the current
visitation order. The trial court found that the father failed
to prove a change in circumstances justifying a change in
custody. We affirm.
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As the party seeking a modification of the existing custody
order, father 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)). See Keel v.
Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983). "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).
The father produced evidence of several confrontations
between the parties as evidence weighing against the mother's
continued custody of the boys. The father contended below and
on appeal that, under Code § 20-124.3(6), the trial court was
required to consider whether the mother failed to "actively
support the [children's] contact and relationship with the other
parent" and failed to "cooperate in matters affecting the
[children]." The father also relied on Code § 20-108 which
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provides, in part, "[t]he intentional withholding of visitation
of a child from the other parent without just cause may
constitute a material change of circumstances justifying a
change of custody in the discretion of the court."
The trial court found that the father failed to prove that
there was a change in circumstances justifying a modification in
custody. While the trial court found that there had been "some
unfortunate confrontations" between the father, his wife, and
the mother, "[t]ragically some . . . in front of the children or
directly impact on the children," it found that the incidents
"[did] not rise to the level of supporting a change of custody."
The trial court did not attribute responsibility for the
confrontations to either. The mother was, however, directed not
to interfere with the father's access to the boys' school
activities.
The father conceded below that there was no evidence that
mother was "a bad mother per se." Our review of the record
supports the trial court's conclusion that nothing warranted a
change in the current custody arrangement. Because the trial
court's decision, based upon the testimony heard ore tenus, was
supported by the evidence and was not an abuse of discretion, we
affirm.
Appeal De Novo
The father contends that the trial court erred by
"affirming" the decision of the juvenile court increasing the
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monthly spousal support award by $750, rather than hearing the
evidence de novo. See Code § 16.1-296(F). While the trial
court noted in an opinion letter that he was "affirming" the
award of the juvenile court, it is clear that the court made a
specific determination based upon the evidence produced at the
hearing and the increase in the father's earnings since the last
support determination. The father points to nothing other than
the wording of the letter to indicate that the trial judge
applied an erroneous, deferential standard of review. We find
no reversible error.
Contempt of Court
The father contends that the trial court erred by failing
to find mother in contempt of court for repeatedly violating the
visitation order. "A trial court 'has the authority to hold
[an] offending party in contempt for acting in bad faith or for
willful disobedience of its order.'" Alexander v. Alexander, 12
Va. App. 691, 696, 406 S.E.2d 666, 669 (1991) (citation
omitted). Whether a party is in contempt is a matter left to
the discretion of the trial court, whose decision "we may
reverse . . . only if we find that it abused its discretion."
Barnhill v. Brooks, 15 Va. App. 696, 704, 427 S.E.2d 209, 215
(1993).
The evidence demonstrated unquestionably that the parties
have had difficulties communicating in the past. However, the
trial court did not hold the mother solely responsible for those
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difficulties. The trial court's factual determinations are
supported by credible evidence. Therefore, we cannot say that
the trial court abused its discretion.
Imputation of Income
The father also contends that the trial court erred by
failing to impute income to the mother for purposes of
calculating spousal and child support. We find no error.
When calculating child support, income may be imputed to a
parent "who is voluntarily unemployed or voluntarily
under-employed" if the trial court determines that it is
appropriate under the circumstances of the case. See Code
§ 20-108.1. The parties' older son is autistic. He was
described as "high functioning," but required special education
classes at school. Witnesses testified that his behavior and
independence had improved as he matured, but there was evidence
that, in the past, the mother was called to school at
unpredictable times when problems arose. While the father
presented evidence that mother could earn $20,000 to $25,000 a
year, his vocational expert admitted that he did not consider
that the mother might require greater flexibility in her work
environment due to the current needs of the parties' son. The
expert also admitted that he relied on the father's
representation that childcare would be available for the
children after school, although there was no evidence that such
care was actually in place. Furthermore, the evidence also
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showed that, by agreement of the parties, the mother did not
work to any significant extent during the parties' marriage
following their children's birth.
The trial court found that "it is important for [the older
son] that [mother] be available to him for the foreseeable
future." Based upon the evidence concerning the current
circumstances and the needs of the parties' children, we find no
error in the trial court's refusal to impute income to the
mother for purposes of child support calculations.
Similarly, "[a] court may under appropriate circumstances
impute income to a party seeking spousal support." Srinivasan
v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990).
Code § 20-107.1(E)(9) requires the trial court to consider the
"earning capacity, including the skills, education and training
of the parties and the present employment opportunities for
persons possessing such earning capacity" when determining
spousal support. As noted above, the trial court found that it
was important under the current circumstances for the mother to
be available for the parties' autistic son. Therefore, we find
no error in the trial court's decision that the evidence did not
warrant an imputation of income to the mother for purposes of
spousal support.
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
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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). It is undisputed that the father's income greatly exceeds
that of the mother. Based on the issues involved and the
respective abilities of the parties to pay, we cannot say that the
award of $2,000 in attorney's fees to the mother was unreasonable
or that the trial court abused its discretion in making the award.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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