COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
RONALD KEITH BURNER
MEMORANDUM OPINION *
v. Record No. 0791-97-2 PER CURIAM
OCTOBER 7, 1997
MARTHA DICKINSON BURNER
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
(Ronald K. Burner, pro se, on brief).
(Ronald R. Tweel; William C. Scott IV;
Michie, Hamlett, Lowry, Rasmussen & Tweel,
on brief), for appellee.
Ronald K. Burner (father) appeals the circuit court's
decision awarding Martha D. Burner (mother) sole legal custody of
the parties' two minor children and deciding other issues of
visitation, spousal support, and equitable distribution. Father
contends that the trial court (1) erred by failing to determine
spousal support based upon present circumstances; (2) abused its
discretion by not awarding father joint legal custody; (3) abused
its discretion by denying father adequate visitation; (4) erred
in its award of Christmas visitation; (5) erred by denying father
the right to take his children out of school for individual field
trips; and (6) erred by not requiring a more central location for
weekday visitation transfers. Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
merit. Accordingly, we summarily affirm the decision of the
trial court. Rule 5A:27.
Spousal Support
"The determination whether a spouse is entitled to support,
and if so how much, is a matter within the discretion of the
court and will not be disturbed on appeal unless it is clear that
some injustice has been done." Dukelow v. Dukelow, 2 Va. App.
21, 27, 341 S.E.2d 208, 211 (1986).
In awarding spousal support, the chancellor
must consider the relative needs and
abilities of the parties. He is guided by
the nine factors that are set forth in Code
§ 20-107.1. When the chancellor has given
due consideration to these factors, his
determination will not be disturbed on
appeal except for a clear abuse of
discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
(1986).
Father contends that the trial court erred in determining
his current income, resulting in an erroneous award of spousal
support. The trial court found father's current gross monthly
income to be approximately $5,040. The evidence introduced by
mother included father's income tax filings for 1995, the most
recent available year, and his actual earnings for part of 1996.
Calculations based on that evidence supported the trial court's
determination of father's income. While father argued that his
previous earnings were based on overtime and unduly inflated his
gross earnings, substantial evidence supports the trial court's
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determination that father's gross monthly income totaled at least
$5,040. 1
Father also argues that the court was required to base its
award of spousal support upon his net income, not gross income,
including the loan payments he testified that he incurred to
cover the pendente lite monthly support payments. The court
heard father's testimony concerning his monthly expenses and
based its ruling in part on its credibility determination
concerning those expenses. Father contended that he was forced
to incur over $20,000 in debt to cover his expenses, yet admitted
his monthly expenses included payments for a $1,000 television he
purchased during the same period of time. We cannot say that the
trial court's determination was erroneous.
While father argues that he may need to relocate in the
future to be closer to his children, potential costs associated
with any relocation are not relevant to this appeal. Similarly,
we find no merit in father's allegation that his employment is
now the equivalent of involuntary servitude because he must
maintain his current job and its earnings. The appropriate forum
for any challenges based upon changed circumstances, if and when
the facts so warrant, is with the trial court.
1
On appeal, we may not consider documents which were not
included in the record before the trial court. See Rule 5A:7.
Therefore, we may not review certain post-trial items included by
father in the appendix.
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Equitable Distribution
Although addressed as part of his challenge to the spousal
support award, father also challenges the court's distribution of
the parties' property. Father contends that the trial court
erred by failing to require mother to reimburse him for one-half
of the mortgage payments. Father does not argue that he made the
payments directly, but instead contends that because mother's
monthly income of $81 could not cover the payments, in reality he
was making these payments through the pendente lite support. The
distribution of marital debts is a matter left to the sound
discretion of the trial court. See Code § 20-107.3(C). We find
no error in the court's refusal to credit husband with one-half
of the value of mortgage payments.
Father also challenges the trial court's determination that
$2,370.60 of the balance due on the parties' First Fidelity
credit card was father's separate debt. Based on evidence
introduced by mother, the trial court found that those charges
reflected father's separate business expenses he incurred
immediately prior to or after his desertion of the marriage.
Father further contends that the trial court erred when it
credited mother with $648.04 for one-half of the payments she
made on the outstanding joint debt after father's desertion.
Father failed to prove his contention that mother paid this debt
from the pendente lite support. This contention, even if proved,
was irrelevant. Mother was entitled to reimbursement for paying
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father's share of the joint debt. Because credible evidence
supports the trial court's determination, we find no error.
Finally, while father contends that additional items he
purchased after the separation should have been classified as his
separate property, this issue was not raised by father below, and
we do not consider it for the first time on appeal. See Rule
5A:18.
Joint Legal Custody
"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).
While the court noted in its remarks from the bench that
both parties obviously loved the children, it found that mother
was the primary caretaker. There was evidence that the parties
had difficulty communicating throughout the marriage and that
those difficulties continued after the parties separated. In
light of these facts, we find no error in the trial court's
decision to maintain sole legal custody with mother while
providing substantial opportunities for visitation with father.
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Visitation
Father challenges the adequacy of the visitation he was
awarded. Under the schedule established by the court, father
sees his son either one or two weekdays each week from 5:00 p.m.
to 8:00 p.m., his daughter one weekday every other week from 5:00
to 7:00 p.m., and both children every other weekend. Due to
father's work schedule, which alternatively includes day, evening
and weekend hours, father is not available some weeks for the
scheduled visitations. However, the court expressly considered
father's schedule when establishing the visitations. The
schedule continued essentially unchanged the pendente lite
visitation schedule followed in 1996. As the schedule ensures
constant and frequent contact between father and the children, we
cannot say that the trial court abused its discretion in setting
visitation.
Christmas Visitation
Father contends that the trial court erred by failing to
order the parties to alternate Christmas visitation each year in
the same manner that Thanksgiving visitation alternates. Under
the current arrangement, as father contends, he does not have
visitation on Christmas Eve or Christmas morning. His visitation
with the children runs from noon on Christmas Day through 7:00
p.m. on December 27.
A schedule which allows shared holiday time cannot readily
be shown to be an abuse of discretion. We find no abuse of
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discretion in the trial court's requirement that each parent
spend a portion of each Christmas with the children.
Education
Father argues that the trial court erred by denying him the
option of removing his children from school in order to take them
on educational trips. We find no error in the trial court's
requirement that the children remain in school during school
hours. The court's order in no way barred father from taking the
children on trips during the time the children are with him.
Visitation Transfer
Finally, father contends that the trial court erred when it
did not require mother to travel closer to his home when
transferring the children for their midweek visitations. Father
contends that his visitations are diminished in quality and
quantity because he is unable to bring the children back to his
home during the midweek visitations or has insufficient time with
the children once they arrive at his home. In addition, father
argues that the current transfer point limits the activities he
and the children engage in during visitation. In inclement
weather, they must go to local stores, libraries, or malls.
Father's requested relocation of the transfer point would
require the children to spend more time traveling. We cannot say
that the trial court abused its discretion by imposing the
weekday travel burden on a parent, in this instance father,
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rather than on the children. Accordingly, the decision of the
circuit court is summarily affirmed.
Affirmed.
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