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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Frank and Clements Argued at Alexandria, Virginia

NOEL J. ALBERT v. Record Nos. 1439-01-4 and 1987-01-4 OPINION BY JUDGE ROBERT P. FRANK MAY 21, 2002

CYNTHIA G. ALBERT

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY R. Terrence Ney, Judge Ted Kavrukov (Kavrukov & DiJoseph, on briefs), for appellant. No brief or argument for appellee.

In this consolidated appeal, Noel J. Albert (father) appeals the trial court's denial of his Motion to Modify Visitation and Child Support. He contends the trial court erred in (1) not

modifying visitation to reduce childcare costs, (2) failing to impute income to Cynthia G. Albert (mother), and (3) awarding attorney's fees to mother. Father also appeals the trial court's

finding that he was responsible for payment of certain medical expenses of the minor children. affirm. I. A. BACKGROUND For the reasons stated, we

Visitation and Child Support Custody of the

The parties were divorced in June 2000.

parties' three children was given to mother, and a schedule of

visitation with father was established.

On January 18, 2001,

father filed a Motion to Modify Visitation and Child Support. The motion stated mother works "32 hours a week, 24 hours on weekends and 8 hours on Tuesdays from 3:00 p.m. to 11:00 p.m." Also, mother "pays for child care while she works on Tuesdays." Father proposed he care for the children on Tuesdays, from the end of the school day until the next morning, when he would take the children to school. In the alternative, father suggested the

parties' thirteen-year-old daughter provide childcare for the other two children on Tuesdays. Father indicated in his motion

that either alternative would "significantly diminish child care costs" and, therefore, reduce child support. A hearing on the motion was set for March 22, 2001. No one

testified at the hearing, despite the motion's evidentiary nature. The hearing consisted of a dialogue between the judge and counsel. Neither party objected to this procedure; therefore, we accept the dialogue as "proffered testimony." However, we can glean only

minimal information from this dialogue.1 At the beginning of the hearing, counsel for mother indicated she could stop working on Tuesday, thereby saving childcare expenses for that day. Counsel opined this change would eliminate

We realize many trial issues are resolved with proffered evidence, but counsel and the trial court must ensure the proffers contain all of the information necessary to resolve the issue at trial and to provide a sufficient record for appellate review.

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any interruption in the children's schedules.

The children

"wouldn't have to . . . go to dad's, get up early on Wednesday morning and be driven to school." Father's attorney responded that, if mother did not work on Tuesdays, her salary would be diminished considerably, and the court then must impute that lost income to her. Father's counsel

represented that mother's total annual salary was $74,823.32, or $6,235.28 per month. Mother's attorney explained, however,

because of a new union contract with increased wages, mother could maintain her old salary without working on Tuesdays. Father's counsel stated that if mother continued to work on Tuesdays, and the children spent Tuesday nights with father, the reduction in childcare costs would be $616 per month. No other

evidence, by proffer or otherwise, was elicited as to income or the expenses of the parties. The trial court ruled the children would not spend Tuesday evenings with father. The court further ordered, since mother

would no longer work on Tuesdays, that both counsel recalculate the amount of child support based on the reduction in her income and the reduction in childcare expenses. The court denied the It

request for imputation of income, without stating a reason.

also awarded attorney's fees in the amount of $780 to mother. During the ensuing recess, the parties compromised on an amount of

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child support of $533 per month. worksheets with the court. 2

The parties did not file any

The trial court entered an order on May 10, 2001, denying the motion to modify visitation, awarding $533 per month in child support, 3 and awarding mother $780 in attorney's fees. B. Medical Expenses

Mother filed a Petition for Rule to Show Cause against father on April 11, 2001, claiming he had willfully failed to pay his share of the children's medical expenses as provided in the final decree of divorce. She claimed he owed $960.92 for these bills.

The final divorce decree of the parties provided, In the event that the children have extraordinary uninsured medical expenses, including but not limited to deductibles, medicines, therapy, counseling, physical therapy, dental and/or orthodontic expenses, [father] shall be responsible and pay 50% of these expenses. Payment for said expenses shall be made at the time [mother] provides [father] with evidence of the expense, or at such time as a doctor or other medical professional requires payment.

While the appendix contains worksheets, they were not offered into evidence at the hearing nor were they made part of the proffer. These documents, therefore, are not part of the record and will not be considered by this Court. Rule 5A:10, Rule 5A:25. See also John v. Im, 263 Va. 315, 320, 559 S.E.2d 694, 697 (2002) (noting the appellate court is limited to the record before it and cannot consider documents that were not submitted to the trial court). The order states the support award is based upon "the agreement of the parties as to the amount of child support based upon the guidelines set forth by the court."
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The final decree further ordered father to "provide health care insurance coverage for the children." A consent order entered on July 23, 1999 set forth custody, visitation, and the related issues of health, education, and "general upbringing." It required each party "notify the other at

the time a doctor, dental or medical appointment is made for the benefit of the children." 4 The June 29, 2001 show cause hearing also consisted generally of a dialogue between counsel and the court. Mother testified

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The entire paragraph B, "Health," states: 1. The parties agree to consult with each other on major health decisions, and each parent shall have access to professional consultation and records. 2. If any of the children should become sick, the parent with whom the child is not staying at the time may visit the sick child. Each parent is to notify the other if any child is sick enough to be taken to the doctor or is confined to bed for two days or more. 3. In the event that either parent should need to authorize emergency hospitalization, medical care or both for either child, that parent in whose care or presence the child is at the time shall have full authority to do so as a custodial parent. 4. The parties shall notify the other at the time a doctor, dental or medical appointment is made for the benefit of the children. - 5 -

briefly, but not under oath. 5

Mother apparently submitted five

cancelled checks and three credit card receipts, showing payments totaling $1,512.84 for various doctors' appointments. Additionally, mother apparently presented to father at the hearing, for the first time, another medical bill for $204.50, raising the total medical bills to $1,717.34. 6 Father's counsel argued his client should not be responsible for fifty percent of these bills. He contended mother did not First, contrary to the

have "clean hands" for several reasons.

terms of the consent order, she did not notify father of the children's appointments that gave rise to these medical bills. Also, father never received copies of the bills so that he could submit them to his primary or secondary insurance carrier. Father

further contended that several medical bills were from visits to medical providers outside of his insurance plan. At the hearing, father confirmed that his counsel's representations to the court were "the truth." testify. Father did not

Both the judge and mother's counsel accepted the

representations of fact presented in father's counsel's argument. Although not under oath, mother addressed the trial court and admitted that she took the children to two health providers, Dr. Sharif and Hour Eyes, who were not on father's insurance plan.

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Again, father did not object to this procedure.

Father never questioned or objected to the amount of the medical bills. He objected only to paying some or all of them. - 6 -

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She indicated Dr. Sharif initially was on the plan and only after the services were rendered did she learn that Sharif had dropped the plan. She then began taking the children to another doctor.

Mother explained Hour Eyes told her that they "carry her insurance," but, apparently, they did not. The trial court found father was not in contempt of the consent order. The court admonished mother to notify father

whenever the children went to a doctor, "in order to give him the opportunity to make sure it's covered by the insurance," and to transmit medical bills in a timely fashion, since "it's better to provide it [to father] sooner as opposed to later." The trial

court did order that father pay $960.92 of the unreimbursed medical expenses, attorney's fees of $600, and costs of $69.50. II. A. ANALYSIS

Visitation and Child Support

Father first contends the trial court erred in not modifying its earlier order to allow him visitation on Tuesdays. disagree. When determining whether to change visitation, a trial court "must apply a two-pronged test: (1) whether there has been a We

change in circumstances since the most recent [visitation] award; and (2) whether a change in [visitation] would be in the best interests of the child." Visikides v. Derr, 3 Va. App. 69, 70,

348 S.E.2d 40, 41 (1986) (discussing this test in the context of custody determinations). "In matters of custody, visitation, and - 7 -

related child care issues, the court's paramount concern is always the best interests of the child." Farley v. Farley, 9 Va. App. "In matters of a child's

326, 327-28, 387 S.E.2d 794, 795 (1990).

welfare, trial courts are vested with broad discretion in making the decisions necessary to guard and to foster a child's best interests." Id. at 328, 387 S.E.2d at 795. "A trial court's

determination of matters within its discretion is reversible on appeal only for an abuse of that discretion, . . . and a trial court's decision will not be set aside unless plainly wrong or without evidence to support it." Id. (citation omitted). He did not show any

Here, father did not meet his burden.

change of circumstance had occurred since the last order nor did he show a change in visitation would be in the children's best interests. Instead, his motion and argument only demonstrated His rationale for

that a change would be in his best interest. 7

the Tuesday visitation was to reduce his child support payments by saving childcare costs. The trial court did not abuse its

discretion in denying the motion to change visitation. Father next contends, since mother voluntarily reduced her workweek from thirty-two to twenty-four hours by not working

While appellant, at oral argument, contended he argued during the hearing that a change in visitation would be in the children's best interest, we find nothing in the record to support that position.

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Tuesdays, income should be imputed to her.

We again must look to

the "proffered testimony" to determine if father met his burden. 8 The dialogue indicated mother was "willing" to "stop working on Tuesdays." stop working. The record does not reflect whether she did in fact We, therefore, do not know if she voluntarily In fact, at the time of the hearing, all

reduced her income.

indications were mother was still working on Tuesdays; her work hours had not changed prior to the hearing. Imputation of income is used by a trial court when deciding whether "to deviate from the presumptive amount of child support, and 'any child support award must be based on circumstances existing at the time the award is made.'" Saleem

v. Saleem, 26 Va. App. 384, 393, 494 S.E.2d 883, 887-88 (1998) (quoting Sargent v. Sargent, 20 Va. App. 694, 703, 460 S.E.2d 596, 600 (1995)). This Court set forth the parameters for imputing income in Niemiec v. Dep't of Soc. Serv., 27 Va. App. 446, 451, 499 S.E.2d 576, 579 (1998): When asked to impute income to a parent, the trial court must consider the parent's earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and children. See Brooks [v. While father objected to the May 10, 2001 order on a number of bases, including the court's refusal to hear testimony on the visitation matter, he did not make an objection based on the court's refusal to hear testimony on imputed income.
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Rogers], 18 Va. App. [585, 592, 445 S.E.2d 725, 729 (1994)] (citing Code

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