COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, O’Brien and Senior Judge Clements
UNPUBLISHED
Argued at Alexandria, Virginia
CHRISTOPHER HOWARD MARRARO, II
MEMORANDUM OPINION BY
v. Record No. 1635-16-4 JUDGE ROSSIE D. ALSTON, JR.
JUNE 27, 2017
JANAE IRENE HAALAND
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
John M. Tran, Judge
Trevor D. Anderson (Thomas P. Silis; Silis & Associates, PLLC,
on briefs), for appellant.
Maureen E. Danker (Ann N. Luu; Laura M. O’Brien; Kelly
Byrnes & Danker, PLLC, on brief), for appellee.
Christopher Howard Marraro, II (appellant) appeals the trial court’s decision to “credit
[appellant] for [pre-tax] contributions as the equivalent of premium payments” so long as he does
not seek reimbursement from Janae Irene Haaland (appellee) “unless and until [appellant] has
fully funded the insurance for the year (or pays medicals up to the level of the annual funding).”
Specifically, appellant argues that the trial court ordered that the children’s medical expenses not
covered by the “high-deductible” healthcare plan be paid “first from the Health Care Savings
Plan funded only by [appellant’s] employer and [appellant’s] pre-tax contribution before
[appellee] is required to pay any amount, without finding good cause or that the circumstances
warranted a deviation,” contrary to Code § 20-108.2(D). We affirm the trial court’s ruling
because the record is incomplete, and thus, insufficient for appellate review.
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
On September 22, 2014, the parties were divorced. Less than two years later, on
February 24, 2016, appellant filed a motion to modify child support. The trial court held a
hearing on the motion from August 1 to August 2, 2016. At the hearing, the parties stipulated
that appellant’s income was $115,000.
At the hearing, appellee testified that appellant pays $40 per month through his current
employer for health insurance for the children. She also indicated that appellant had a health
savings account (HSA), which was partially funded by his employer in the amount of $1,000 per
year.
Appellant testified that with his new employer, he has a high deductible plan, meaning
that the health insurance does not actuate until the deductible is met. Prior to meeting the
deductible, appellant has to pay all out-of-pocket expenses. After the deductible is met, all
medical expenses are covered through the insurance plan. The deductible for appellant’s plan, at
the time of the hearing, was $4,000 for “in network” medical expenses and $8,000 for
“out-of-network” medical expenses. Appellant testified that his employer pays $1,000 toward
the deductible. However, appellant noted that the $1,000 payout is paid incrementally, with a
small amount paid during each pay period.
On cross-examination, appellant stated that his employer gives him a $1,000 payout
because he enrolled for coverage for both himself and his children, whereas if the plan only
covered him the payout would be cut to half or $500. Appellant also stated that he personally
contributes $150 per paycheck to the HSA. The money that appellant contributes to the HSA
comes from pre-tax dollars, and he also receives a tax benefit for having the HSA.
During cross-examination, appellant’s counsel objected to opposing counsel testifying, and
argued that appellant makes personal contributions every paycheck to the HSA account, and thus,
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he should receive a credit for these contributions. Additionally, at the conclusion of the hearing
appellant argued that he
receive a credit . . . for the monies that he puts in to the . . .
children’s . . . fund, [appellee’s] explanation of it just doesn’t seem
. . . right. It’s, it’s a fund that he puts the money in every month.
His employer puts the money in every month. If the medical bills
are . . . high in a particular year, there’s no money left. If they’re
not, the money doesn’t accrue and build, but there’s no way of
knowing that. . . . And [appellee] benefits from it. When he puts
money into an, into that account and it gets covered based upon
that money, she benefits. So they somehow . . . misrepresented in
some way that . . . he’s shifting the money to himself that he’s
going to benefit only. She will benefit from the fact that he puts
his money in there. The children benefit.
On August 19, 2016, the trial court issued a letter opinion finding that a material change
in circumstances warranted a modification of child support. In regard to health insurance costs,
the trial court issued the following decision:
Under Code § 20-108 (D), the parties must pay in proportion to
their gross incomes, as used for calculating the monthly support
obligation, any reasonable and necessary unreimbursed medical or
dental expenses. [Appellant]’s health care plan includes pre-tax
contributions. The Court is willing to credit [appellant] for those
contributions as the equivalent of premium payments, but
[appellant] cannot claim these payments from his pre-tax
contributions as “unreimbursed” payments. That is, [appellant]
cannot present a bill as “not reimbursed” unless and until he has
fully funded the insurance for the year (or pays medicals up to the
level of the annual funding).
It is incumbent upon [appellant] to maintain complete records as to
his medical contributions and payment of medical bills. When
appropriate, [appellant] must present [appellee] with a demand for
contribution, along with an itemized explanation as to why her
obligations have kicked in, within a reasonable time, but not
exceeding 90 days from the date of the last bill for which
[appellant] seeks reimbursement.
Following the trial court’s ruling, on September 2, 2016, appellant filed objections to the
proposed order modifying child support. Therein, appellant argued that the proposed order
erroneously failed to provide that the parties pay for any reasonable and necessary unreimbursed
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medical or dental expenses for the children in proportion to their respective gross incomes.
However, on September 6, 2016, the trial court entered an order modifying child support,
ordering appellant to continue to maintain health insurance for the minor children, with the
following conditions:
[Appellant]’s employer provided healthcare plan also includes a
pre-tax contribution, Health Savings Account (“HSA”) plan that is
presently funded by [appellant]’s employer and by [appellant].
Provided that [appellant] continues to participate in pre-tax
contributions, the children’s medical bills are covered by those
pre-tax contributions and beyond the contributions, once
exhausted, insurance will cover.
[Appellant] shall not then claim the payments from his pre-tax
contributions as “unreimbursed” payments. For example,
[appellant] shall not present a bill as “non-reimbursed” unless and
until he has fully funded the insurance for the year (or pays
medicals up to the level of the annual funding). It is incumbent
upon the [appellant] to maintain complete records as to his medical
contributions and payment of medical bills.
When appropriate, the [appellant] shall present the [appellee] with
a demand for contribution, along with an itemized explanation as
to why her obligations have kicked in, within a reasonable time,
but not exceeding 90 days from the date of the last bill for which
the [appellant] seeks reimbursement. At that time, all reasonable
and necessary unreimbursed health or dental expenses shall be paid
as they are incurred with the parties paying by their income shares,
which are currently [appellant]: 64% and [appellee] 36%. Any
amount paid under this provision shall not be adjusted by, nor
added to any child support order.
This appeal followed.
ANALYSIS
“Our review of an appeal is restricted to the record.” Oliver v. Commonwealth, 35
Va. App. 286, 296, 544 S.E.2d 870, 875 (2001) (citing Turner v. Commonwealth, 2 Va. App. 96,
99, 341 S.E.2d 400, 401 (1986)). “An appellate court must dispose of the case upon the record
and cannot base its decision upon appellant’s petition or brief, or statements of counsel in open
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court. We may act only upon facts contained in the record.” Id. at 296-97, 544 S.E.2d at 875
(quoting Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993)).
Rule 5A:25(c)(6) states that “[a]n appendix shall include . . . exhibits necessary for an
understanding of the case that can reasonably be reproduced.” See also Rule 5A:8(b) (“When
the appellant fails to ensure that the record contains transcripts or a written statement of facts
necessary to permit resolution of appellate issues, any assignments of error affected by such
omission shall not be considered.”). “[N]ot more than ten days after [appellant’s] designation [of
the contents to be included in the appendix, if necessary,] is filed, counsel for appellee shall file
with the clerk of the Court of Appeals a designation of any additional contents to be included in
the appendix.” Rule 5A:25(d).
An appeal will be affirmed if an insufficient record is furnished. Oliver, 35 Va. App. at
297, 544 S.E.2d at 875. Further, “the [trial] court’s judgment is presumptively correct and the
burden is on the appellant to present a sufficient record to permit a determination whether the
[trial] court committed an alleged error.” Commonwealth v. Williams, 262 Va. 661, 669, 553
S.E.2d 760, 764 (2001).
Here, appellant has not provided the Court with the guideline worksheet supposedly used
by the trial court in making its decision in this case. Neither appellant’s proposed guidelines nor
the guidelines used by the trial court were provided in the appendix. Appellee filed a designation
with additional contents to be included within the appendix, however, appellee did not reference
the guideline worksheets, and as a result, they were not added to the appendix.
The record in this case appears to reflect that the trial court was presented with guideline
worksheets and calculations from the parties. Additionally, both parties, and the trial court,
spoke extensively about the guideline calculations during the course of the hearing. Without
these worksheets, appellant nevertheless asks this Court to make a determination based on the
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trial court’s ruling regarding unreimbursed medical expenses for the children. However, we
cannot do so without the crucial information absent from the record. The absence of this
information makes the record insufficient to permit us to determine if the trial court committed
error in its ruling. Finally, and perhaps most problematic, is that this Court has no way of
determining from the insufficient record what “credit” appellant requested from the trial court
and what “credit” the trial court ultimately provided him with.
Under these circumstances, we cannot make a determination as to whether the trial court
erred in “credit[ing appellant] for [pre-tax] contributions as the equivalent of premium
payments” so long as he does not seek reimbursement from [appellee] “unless and until
[appellant] has fully funded the insurance for the year (or pays medicals up to the level of the
annual funding).” Thus, finding the record insufficient to support appellate review, we affirm
the trial court’s decision.
Affirmed.
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