Ronald Keith Burner v. Martha Dickinson Burner

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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