Barrett v. Commonwealth

• Decision Date: 26 July 2011
• Docket Number: Record No. 1382-10-3
• Parties: TIMOTHY M. BARRETT v. COMMONWEALTH OF VIRGINIA, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT ex rel. VALERIE JILL RHUDY BARRETT AND VALERIE JILL RHUDY BARRETT
• Court: Virginia Court of Appeals

TIMOTHY M. BARRETT

v. COMMONWEALTH OF VIRGINIA, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT ex rel. VALERIE JILL RHUDY BARRETTAND VALERIE JILL RHUDY BARRETT

Record No. 1382-10-3

COURT OF APPEALS OF VIRGINIA

Dated: July 26, 2011

Present: Judges Frank, Beales and Senior Judge Clements

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE ROBERT P. FRANK

FROM THE CIRCUIT COURT OF GRAYSON COUNTY

Brett L. Geisler, Judge

Timothy M. Barrett, pro se.

Brian R. Jones, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Craig M. Burshem, Senior Assistant Attorney General; Beth J. Edwards, Regional Senior Assistant General; Alice G. Burlinson, Regional Senior Assistant Attorney General, on brief), for appellee Department of Social Services/Division of Child Support Enforcement.

Steven R. Minor (Elliott Lawson & Minor, on brief), for appellee Valerie Jill Rhudy Barrett.

Timothy M. Barrett, appellant/father, appeals from the trial court's June 22, 2010 order modifying his child support obligation. The Department of Social Services, Division of Child Support Enforcement (DCSE), a party to the case, responded to father's appeal. Mother, Valerie Jill Rhudy Barrett, also responded to the appeal and filed a cross-appeal.

PROCEDURAL HISTORY

On May 1, 2008, appellant petitioned the juvenile and domestic relations district court to modify the child support award. On appeal to the circuit court on September 23, 2009, the court held a hearing on the petition and in a March 4, 2010 opinion letter the court reduced appellant's child support obligation, making it retroactive to May 1, 2008, the date appellant filed his motion.

Appellant appealed the modification order to this Court, asserting seventeen assignments of error with ten sub-parts. Appellees DCSE and mother responded, with mother filing a cross-appeal and a request by mother for attorney's fees on appeal.

In this appeal, appellant raises various issues regarding child support, imputation of income, admissibility of evidence, and attorney's fees. For the reasons set forth below, we reverse and remand on the child support issues, and affirm the trial court's judgment on all remaining issues.

GIFTS

Appellant contends the trial court erred in not imputing income to mother for gifts she received from her parents and her church. We agree with appellant and reverse.

In its opinion letter, the trial court stated,

There is no question that Jill Barrett receives assistance from her parents regarding the custody and support of her children. . . . Although there is some discrepancy between the amount of support Jill Barrett receives from her parents, I find that Jill Barrett primarily receives financial support from her parents when she is not receiving child support payments from Tim Barrett. As was previously found, I do not find that such gifts to be income to Jill Barrett and will not include them as such.

In Barrett v. Commonwealth, No. 1332-07-3, 2008 Va. App. LEXIS 210 (Va. Ct. App. Apr. 29, 2008), this Court found that "[a]lthough the testimony was not entirely consistent, the record contains sufficient evidence to support the trial court's finding[]" that the "gifts" were actually loans from Valerie's father. Id. at *20. In that case, we affirmed the trial court's finding that the monies received by mother were loans. Id. However, we are not bound by that holdingbecause evidence in this case shows that mother received additional financial assistance from her father since our earlier decision in Barrett. Contrary to what the dissent opinion suggests, there was evidence subsequent to the earlier Barrett case that mother was receiving gifts. Thus, that decision is not the "law of the case." Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 26, 661 S.E.2d 822, 826 (2008).

In mother's discovery response, which was made a part of the record¹ as "Tim Barrett Exhibit #5," mother admitted that she had received no "loans since May 1, 2008." Based on this evidence, the only possible conclusion to be drawn is that any monies received after May 1, 2008 were gifts.²

Other testimony also supports the trial court's finding that the financial aid was intended as gifts. Mother testified that she receives cash from her father in amounts of $200 to $300 per month since May 1, 2008. Her father testified he gives between $1,200 and $1,500 each month to the children living at home with their mother. He described this sum as also including cash to his daughter and payment of her utilities. Mr. Rhudy explained, "I give her the money that's necessary to her to maintain the standard of living that the children deserve, that she deserves and I supplement it, but she hasn't received anything in a long time. So I've been paying all of it." He also stated that mother receives an unknown amount of money from her mother each month.

Additionally, mother acknowledged that she received a one-time gift from her church in order to pay for groceries. The evidence showed that the monies mother received were gifts, not loans, and the trial court so found. While the dissent focuses on mother's testimony that she intended to repay her father, there was also testimony from her that these monies were gifts. The trial court heard the conflicting testimony and resolved the conflict by finding the monies were gifts. However, after making this finding, the trial court did not include these gifts as part of mother's income. This was error.

By statute, gross income includes:

income from all sources, and shall include, but not be limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed [elsewhere], workers' compensation benefits, unemployment, insurance benefits, disability insurance benefits, veterans' benefits, spousal support, rental income, gifts, prizes, or awards.

Code § 20-108.2(C) (emphasis added).

The statute clearly defines gifts as income. At the time mother received these gifts, appellant was not paying child support to her. The trial court could have used that circumstance as a deviation factor in calculating the support award. The trial court is entitled to deviate from the presumptive support amount if it determines that amount to be unjust or inappropriate. Id.; see Pharo v. Pharo, 19 Va. App. 236, 450 S.E.2d 183 (1994). However, once the trial court made a finding that the money was a gift, rather than a loan, it was required to include it as part of mother's income.

Accordingly, we reverse and remand to the trial court for a recalculation of the support award.

ISSUES NOT ADDRESSED

Because we remand this case to the trial court for a recalculation of the support award, we will not address any issues that require further factual determinations. We therefore decline to consider the following assignments of error³ :

II - The Trial Court erred in having failed to properly determine the presumptive amount of support per the Guidelines and then having failed to property [sic] determine if that amount was unjust or inappropriate.

III - The Trial Court erred in making a support decision that is not in keeping with the contemporaneous circumstances of this case.

X - The Trial Court erred in not subtracting half of the Father's unemployment taxes from his gross income.

ISSUES INVOLVING JONATHAN

The following assignments of error we do not address because they concern child support for Jonathan and upon remand he would not be entitled to support since he is over the age of eighteen, not incapacitated, nor still in high school. See Code § 20-124.2(C).

VII - The Trial Court erred in awarding support for Jonathan past his 18th birthday despite him not living at his Mother's home and in violation of the Father's 13th Amendment rights.

XII - The Trial Court erred in awarding support to the Mother for Jonathan when she did not have physical custody of Jonathan and was not supporting him.

XIII - The Trial Court erred in not properly considering Jonathan's independent financial resources.

IMPUTATION OF INCOME TO APPELLANT

Appellant's assignment of error IX states the trial court erred in imputing income to father. On remand, if imputation of income to father remains an issue, the trial court mustconsider whether father is voluntarily unemployed or underemployed at the time of the hearing, and if so, the amount of income to be imputed.

The trial court must consider whether father's efforts to secure employment were sufficient to meet father's burden to show he was not voluntarily unemployed and consider whether father acted in good faith and reasonableness in his efforts to secure other employment after the loss of his law license. See Broadhead v. Broadhead, 51 Va. App. 170, 183, 655 S.E.2d 748, 754 (2008); Code § 20-108.1(B)(3).

On remand, the trial court must also consider whether father is voluntarily unemployed since obtaining custody of Alexander, i.e., whether Alexander's current emotional and behavioral status would prevent father from obtaining employment and, if so, whether the cost of child care expenses are included in the support computation.

MISTRIAL

Appellant's assignment of error XIV states the trial court erred in not declaring a mistrial or reopening this case. We do not address this assignment of error because upon a remand for a determination of child support, the issue becomes moot.

ISSUES PREVIOUSLY DECIDED

Appellant's brief contains the following assignments of error:

I - The trial court erred in allowing DCSE to intervene as a party to this case contrary to the law of the Commonwealth of Virginia.

XV - The trial court erred in finding the Father in arrears when there was not evidence in the record that supports this conclusion.

XVI - The trial court erred in awarding interest when neither the Mother nor DCSE asked for it, when there was no evidence as to the amount to which interest would apply, and in allowing DCSE to determine the interest

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