Tidwell v. Late
Decision Date | 30 May 2017 |
Docket Number | Record No. 1388-16-4 |
Citation | 67 Va.App. 668,799 S.E.2d 696 |
Parties | Drew TIDWELL v. Jennifer LATE |
Court | Virginia Court of Appeals |
Drew Tidwell, pro se.
(Jennifer Late, pro se, on brief). Appellee submitting on brief.
Present: Judges Alston, O'Brien and Senior Judge Clements
OPINION BY JUDGE JEAN HARRISON CLEMENTS
Drew Tidwell (father) is appealing a child support order. Father includes six assignments of error in his opening brief. First, he contends the circuit court erred by averaging his gross annual income for the past four years in order to calculate his income for child support purposes. Second, he asserts that if this Court finds that a trial court has the discretion to average income, then the circuit court erred by (a) using four years of income to determine his average gross income; (b) "using the amounts of gross income for various years that were never entered into as evidence;" (c) not averaging the allowable deductions for self-employed people over the same time period; and (d) not averaging Jennifer Late's (mother) gross income. Third, father argues that the circuit court erred by accepting the amount of child care costs "premised upon a document not admitted into evidence" and denying him the opportunity to "effectively cross-examine" mother about child care costs. Fourth, he argues that the circuit court erred by refusing "to consider a cause of action in the Petition regarding the number of days ... [mother] illegally deprived custody of the children to [father]...." Fifth, father contends the circuit court erred by not applying the revised child support payments retroactively. Sixth, he contends the circuit court erred by refusing to read or consider his pre-trial brief, which deprived him of due process. For the reasons stated below, we affirm the circuit court's decision in part, reverse in part, and remand this case to the circuit court for further proceedings consistent with this opinion.
"When reviewing a trial court's decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences." Niblett v. Niblett , 65 Va.App. 616, 622, 779 S.E.2d 839, 842 (2015) (quoting Congdon v. Congdon , 40 Va.App. 255, 258, 578 S.E.2d 833, 835 (2003) ).
Father and mother were divorced on April 24, 2013. The final decree of divorce incorporates the parties' custody agreement, dated July 12, 2012, and their memorandum of understanding, dated July 12, 2012. In accordance with those documents, the parties have joint legal and physical custody of their two minor children. The final decree of divorce includes the following timeline regarding child support:
On February 5, 2015, the parties entered into an "Agreed Order Modifying and Clarifying the Parties' Custody Agreement." This agreement discussed custody and visitation issues, not child support issues.
On June 30, 2015, father filed a petition for modification of child support in the Fairfax County Juvenile and Domestic Relations District Court (the JDR court). Father argued that the parties' incomes and child care costs had changed. On December 9, 2015, the JDR court entered an order granting father's petition. The JDR court used a shared custody calculation and ordered father to pay $800 per month, beginning October 1, 2015. The JDR court based its calculations on mother's gross income at $5,408, father's gross income at $4,973, child care costs at $698, and health insurance costs at $134. The JDR court determined that father had the children for 110 days per year. Father timely appealed the JDR court's decision.
On June 10, 2016, prior to the trial, father filed a seventeen-page pre-trial brief with several exhibits. The pre-trial brief included numerous issues for the court to consider while calculating child support, as well as father's requested relief.
The parties appeared before the circuit court on June 16, 2016. Father told the circuit court that since 2012 he has worked as an independent contractor doing film and television production for Passing Lane Films, LLC. The company is owned by father's current wife. From 2013 until October 2015, father was president and director of Passing Lane Films, but as of October 2015, his title was "producer." Father presented his 2015 tax return and 1099s, which reflected his income, self-employment taxes, and business expenses. According to his 1099, father earned $42,000 from Passing Lane Films in 2015 and continued to earn $3,500 per month in 2016. His self-employment tax in 2015 was $2,205, or $184 per month. He also presented evidence that his reasonable business expenses amounted to $117 per month.
Furthermore, father testified that in 2015 he did additional work for another company. However, he was no longer working with that company because it merged with another company and no longer needed video services.
On cross-examination, father testified that in 2014 he earned $40,000 from Passing Lane Films, and in 2013 he earned $48,500 from Passing Lane Films. He admitted that according to the July 12, 2012 agreements, he earned $5,250 per month. He also informed the court that the owner of Passing Lane Films, his current wife, determines his income.
Mother is employed as a membership and marketing manager for the National Court Reporters Association, and her salary in 2016 was $66,837. In 2015, she did some independent contractor work in addition to her full-time job. She testified that she obtained a second job in order "to pay down legal fees," but she would not be working as an independent contractor in 2016.
The parties also presented evidence regarding the children's after school and summer activities. Both parties agreed that the child care costs have changed since the final decree of divorce. However, they disagreed about the current cost of work-related child care. They also presented calendars and testimony to inform the court about the number of days they visited with the children.
At the conclusion of all of the evidence, father explained to the circuit court that he wanted to remove work-related child care costs from the child support calculation. He suggested that he pay his share directly to the child care program. He asked the circuit court to "calculate the presumptive amount of the child support award."
Mother argued that the circuit court should average father's income for the past four years because his income has fluctuated. She stated, "It is important to look at more than one year for Mr. Tidwell because he owns his own business and with this [sic] wife, and their incomes vary, unlike Ms. Late who is a salaried employee."
After both parties presented their closing arguments, the following colloquy occurred between the circuit court and father:
Thereafter, the circuit court held that father proved that there was a material change in circumstances that warranted a modification of child support. It found that the child care costs had changed, and the JDR court did not deduct from father's gross income one-half of his self-employment taxes and reasonable business expenses. Mother stipulated that father had the children for 110 days per year, although she expected father to visit the children 107.5 days in 2016. Father expected to visit the children 116 days in 2016. The circuit court used 110 days in its calculation. Consequently, the circuit court used a shared custody calculation and ordered father...
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