Mayhood v. Mayhood

• Decision Date: 07 July 1987
• Docket Number: No. 0476-86-1,0476-86-1
• Citation: 4 Va.App. 365,358 S.E.2d 182
• Parties: Brian E. MAYHOOD v. Judith Annette MAYHOOD. Record
• Court: Virginia Court of Appeals

Page 182

358 S.E.2d 182

4 Va.App. 365

Brian E. MAYHOOD v. Judith Annette MAYHOOD.

Record No. 0476-86-1.

Court of Appeals of Virginia.

July 7, 1987.

Samuel R. Brown, II (Day, Summs, Epps & Brown, Virginia Beach, on brief), for appellant.

Patricia B. Dickey, Norfolk, for appellee.

Present: BENTON, DUFF and HODGES, JJ.

HODGES, Judge.

On January 23, 1986, the Circuit Court of the City of Norfolk entered a final decree of divorce between Brian E. Mayhood and Judith Annette Mayhood. The decree cited that a stipulation and property settlement agreement dated October 29, 1985, which dealt in part with the question of support of the two minor children, was affirmed, ratified and incorporated by reference into the decree as provided by statute. The decree went on to specify that "[t]he child support payments which the plaintiff (Brian Mayhood) is ordered to pay for the said minor child, are $175 per child, per month, at the rate of $175 on the 1st and $175 on the 15th of each month."

Subsequent to the entry of the final decree the court entered another decree on April 7, 1986, increasing the amount of child support to $250 a month per child and ordering the father to pay one-half of all expenses arising from counselling sessions for the infant son. ¹ Brian Mayhood objected to the decree and filed a timely notice of appeal.

On appeal, appellant contends the court erred in awarding an increase in the amount of child support since appellee failed to carry her burden of proving that a change in circumstances had occurred since the original support amounts were set.

Initially, we consider whether there is evidence in the record from which we can determine whether the court erred in awarding the increase. No transcript of the March 28 hearing was made, but on two occasions the appellant attempted to have a written statement of facts made a part of the record as permitted by Rule 5A:8. On May 14, 1986, appellant submitted a statement of facts which recited that on March 28, 1986, after brief argument by counsel concerning a petition for return of certain property, appellee moved for an increase in child support and stated in argument that the younger child might need therapy in the future due to problems with his father. The statement of facts further recited that the Court interviewed the minor children outside the presence of the parties and their attorneys and then announced that $175 per month per child was not sufficient and an increase would be proper.

On May 23, 1986, appellee's counsel filed objections to the statement of facts and contended that appellee had testified to the expected increase in expenses due to the cost of therapy for the younger child. The objection noted that the judge stated that the amount of child support agreed to in the stipulation agreement was "the bare minimum."

On June 6, 1986, after due notice, a hearing was held concerning the statement of facts and appellee's objection thereto. At the end of the hearing, the judge said: "If the parties will type up my recollection, after I read it, and if you're agreeable to it, I'll sign that as a statement of facts." The record reflects that on July 23, 1986, appellant sent an amended statement of facts to the judge and requested that it be entered. The amended statement had been endorsed without objection by appellee's counsel. Nonetheless, on July 28, 1986, the judge wrote appellee's counsel and asked her to let him know whether she agreed or disagreed with the statement of facts. Nothing further appears in the record.

Rule 5A:8 sets out the procedure for making a written statement a part of the record in lieu of a transcript. When one party files objections to the written statement, the clerk, after receipt of the objections, shall give prompt notice of the objections to the trial judge who shall:

(1) overrule the objection;

(2) make any corrections that he deems necessary;

(3) include any accurate additions to make the record complete;

(4) certify the manner in which the record is incomplete; and

(5) sign the transcript or written statements.

During the hearing on June 6, 1986, the court refused to sign the statement presented, and refused to certify that the statement was incomplete. The court stated:

If you'll put in this statement of facts that between the hearing of March 11 and the hearing of March 28 there was testimony, there was testimony, rather, that there was an incident between those two dates where the son threatened to kill the father and that that was what I discussed with the children in chambers in private each separately, not in the presence of each other, and that I returned to the room, and it was agreed by Mr. Mayhood that this had happened and that I think it was also agreed on that the mother had heard about it. And it was at that time on the basis of those facts that the court decided that the award was too low and there was additional counselling and care...