A Carluzzo Rochkind & Smith note: Following is an excellent article by Virginia Lawyers Weekly. Since 1987, our divorce attorney in Manassas has helped clients with child support issues in Prince William County, Fairfax County, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact us at (703) 361-0776.
Support obligation, custody matters affirmed
By Virginia Lawyers Weekly – 5/9/2022
Where the circuit court denied father’s motion to modify his child support obligations and custody arrangements, none of father’s assignments of error warrant reversal.
Statement of case
Father is proceeding pro se on appeal.
“In his ten assignments of error, father contends that the judge erred by failing to recuse himself, reduce father’s child support obligation, alter the current child support and custody order, punish mother’s alleged perjury, make written findings of fact, and timely file its ‘Corrected Statement of Facts’ for this appeal.
“Although we cannot consider the ‘Corrected Statement of Facts,’ we otherwise find no error in the court’s decisions and affirm.”
Recusal
“Father argues that the judge was biased against him and therefore erred in denying the motion for recusal. …
“To support his allegation of bias, father claims that the judge, when presiding over the parties’ prior divorce proceedings, made ‘written false statements’ concerning mother’s contributions to father’s mortgage and awarded mother an ‘arbitrarily-estimated sum’ of $10,000 in attorney fees.
“However, father’s argument is not supported by the record, which does not include the judge’s written statements, evidence of their alleged falsity, or the attorney-fee award from that prior proceeding.
“Moreover, the mere fact that the judge had previously ruled against father in favor of mother is insufficient to prove the judge’s alleged bias.”
There was no abuse of discretion when the trial judge denied father’s motion for recusal.
Corrected statement of facts
“Father argues that the ‘Corrected Statement of Facts’ is not properly before this Court because the circuit court failed to make the corrections and sign it within the time constraints set forth in Rule 5A:8(d). …
“[F]ather filed a proposed statement of facts in lieu of a transcript on October 13, 2021, and mother filed objections on October 28, 2021. However, the court took no action, and the clerk transmitted the record to this Court on November 16, 2021.
“On November 24, 2021, the clerk transmitted a record addendum containing a ‘Corrected Statement of Facts’ signed by the court on November 22, 2021. However, because the court did not take this action while the record remained in the clerk’s office, this filing does not comply with Rule 5A:8(d). …
“Therefore, the ‘Corrected Statement of Facts’ is not part of the record properly before us on appeal, and we do not consider it.
“Additionally, we note that father’s proposed statement of facts was never signed by the court and therefore cannot be ‘considered as an authoritative account of the events at trial in lieu of a transcript’.”
Support and custody
“[F]ather argues that the court erred by not factoring ‘actual tax consequences’ into the calculation of child care costs, altering the custody-exchange transportation provisions, and reducing the child support award. …
“Father alleges two material changes in circumstances since the August 2, 2019 order. First, father argues that his children are older, noting that one has entered middle school and the other is now in elementary school. However, nothing in the record demonstrates that the aging of the children has impacted father’s obligations under the current award.
“Second, father argues that his monthly payments for the children’s medical and dental insurance have increased by approximately twenty dollars. Considering the record before us, we hold that the court’s finding that father did not prove a material change in circumstances was not plainly wrong or unsupported by the evidence. …
“Accordingly, the court did not err by not reducing the child support award or modifying the custody order.”
Failure to appeal
“[F]ather contends the court erred in finding that he had not appealed the JDR court’s denial of his requests for equal physical custody and to strike the prohibition against overnight guests in the August 2, 2019 order. … [F]ather argues that the court erred by refusing to grant these requested modifications. …
“[F]ather cites to a ‘Notice of Appeal’ from the JDR court that was not marked as received by the circuit court clerk’s office.
“Assuming without deciding that father properly preserved these arguments, we find that it is not clear whether father appealed these rulings from the JDR court.
“The only JDR order in the record does not rule on these issues but instead addresses child support and father’s requests to change the custody-exchange location and to claim one of the children’s tax exemptions.
“Furthermore, although the parties’ written closing statements indicate that these custody and visitation issues – including whether they were properly appealed – were raised at trial, the record does not include a transcript or certified statement of facts. …
“Because father failed to provide a record to substantiate his claims, we do not consider these assignments of error.”
Written findings
“Father contends that the court erred by not making written findings pursuant to Code § 20-124.3[.] … In this case, the court found that the communication required by Code § 20-124.3 was unnecessary because ‘no change is being made to any custody or visitation arrangements between the parties.’
“Upon de novo review of the court’s statutory interpretation, … we agree and affirm. …
“Because the court did not err in finding that father failed to prove a material change in circumstances, it was not required to consider whether a change in custody would be in the best interests of the children, and it did not need to evaluate the Code § 20-124.3 factors.”
Alleged perjury
“Father contends that the court ‘failed to acknowledge and punish [mother’s] perjury.’ The record shows that father first requested that mother be ‘prosecuted and punished for perjury’ in a written objection filed two days after the entry of the final order.
“Father did not timely raise his argument and give the court an opportunity to rule on his request. … Moreover, ‘[b]ecause the record does not show that the trial court ruled on appellant’s argument, there is no ruling of the trial court for this Court to review on appeal.’”
Attorney fees
“Mother requests attorney fees associated with this appeal. … [W]e hold that mother is entitled to an award of reasonable appellate attorney fees, and we remand for a determination of that amount.”
Affirmed and remanded.
Botos v. Botos, Record No. 1015-21-3, April 19, 2022. CAV (O’Brien) from the Circuit Court of the City of Salem (Dorsey). David A. Botos, pro se. Victor S. Skaff III for appellee. VLW 022-7-093, 10 pp. Unpublished opinion.
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