Bruce M. MAYER
Laura Murdoch Thornberry (Bruce M. Mayer, pro se, on briefs), for appellant.
Scott B. Konikoff for appellee.
Present: HUMPHREYS, BEALES and HUFF, JJ.
[62 Va.App. 716] Bruce M. Mayer (father) appeals the trial court's order directing him to pay continuing child support to Linda Corso-Mayer (mother) under Code § 20-124.2(C). Father argues that the trial court lacked subject matter jurisdiction to award continuing child support to mother, that mother lacked standing to petition for continuing child support, and that the evidence did not support a finding that continuing child support [62 Va.App. 717] was warranted.  Father also challenges the trial
court's decision to order father to pay 75% of mother's fees and costs (including her attorneys' fees, deposition costs, and filing fees) that arose from continuing child support litigation. For the following reasons, we affirm the trial court's order directing the payment of continuing child support to mother. However, we reverse and vacate the award of attorneys' fees and costs to mother.
" On appeal, we view the evidence in the light most favorable to [mother], the party prevailing below," Chretien v. Chretien, 53 Va.App. 200, 202, 670 S.E.2d 45, 46 (2008), and we grant to mother " all reasonable inferences fairly deducible" from the evidence, Anderson v. Anderson, 29 Va.App. 673, 678, 514 S.E.2d 369, 372 (1999). The parties married in 1981 and were divorced by a final decree that the trial court entered on September 24, 2010. The parties' youngest child (daughter) was born on January 8, 1994 and, therefore, daughter was still a minor child when the parties divorced. Mother was granted sole custody of daughter. It is undisputed that daughter has been diagnosed with several conditions and disorders. Dr. Elena Flagg, an expert in rheumatology, diagnosed daughter with fibromyalgia, which Dr. Flagg testified is a chronic syndrome that is " characterized by widespread pain [62 Va.App. 718] along the muscles." Dr. Alfonso Lopez-Condona, an expert in childhood psychiatry, testified that he diagnosed daughter with " Tourette's disorder, obsessive compulsive disorder, mood disorder NOS [not otherwise specified], and attention deficit hyperactivity disorder."
Pursuant to the final divorce decree, which incorporated the parties' property settlement agreement, father was ordered to pay $900 in monthly child support for daughter until daughter " reaches the age of 18 years unless she is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party seeking or receiving child support until the child reaches the age of 19 or graduates from high school, whichever first occurs." This provision of the final decree simply recites a portion of Code § 20-124.2(C). Language reflecting a different portion of Code § 20-124.2(C) that is pertinent to this appeal also appears in the parties' final divorce decree.
On May 10, 2012, mother filed a petition in the trial court seeking the payment of continuing child support by father. [62 Va.App. 719] Father moved to dismiss mother's petition, contending that the trial court lacked subject matter jurisdiction to consider mother's petition and that mother lacked standing to petition for continuing child support. Essentially, father asserted that mother's May 10, 2012 petition for continuing child support was untimely
filed. Father alleged that daughter had already turned the age of 18 on January 8, 2012 and had also earned her general equivalency degree (GED) on April 19, 2012 before mother filed her petition. Thus, father contended that his responsibility to pay child support under the final divorce decree had already ended when mother filed the May 10, 2012 petition for continuing child support.
In support of father's motion to dismiss, father's counsel asserted at the January 25, 2013 evidentiary hearing in the trial court:
So I would propose to you that no further obligation was in effect starting the 1st of May of 2012. However, [mother] didn't advise the father that [daughter] had completed high school at that point in time so he kept on making payments. The mother, however, would have had to petition the Court for a continuation of child support before [daughter] turned 18 if she had wanted to have a continuation of child support. That is when the Court had statutory authority to order a continuation of child support, during the minority of the child. And so our position is that even if you use the April 2012 GED date, the mother was too late when she filed her petition in May of 2012.
However, the trial court denied father's motion to dismiss the petition— finding, inter alia, that Code § 20-124.2(C) " as set forth by the General Assembly intended for cases like this where ... the Court can revisit [child support] and make an award accordingly if it finds that those necessitous circumstances exist."
[62 Va.App. 720] At the evidentiary hearing, Dr. Flagg (who was received as mother's expert in rheumatology) testified that daughter's fibromyalgia causes her great pain, especially when it " flares up" due to stress, infection, physical activity, and prolonged periods of sitting or standing. Dr. Flagg added that the combination of the many medications that daughter has been prescribed can cause fatigue, dizziness, and disorientation. Dr. Flagg opined that, considering the symptoms of daughter's fibromyalgia and how they interact with daughter's psychiatric disorders, it would be " very difficult" for daughter to hold a full-time or even part-time job and to live independently. In Dr. Flagg's opinion, daughter currently could not be expected to " maintain an apartment," " maintain bills," " cook for herself," or supply some essentials of her own " self care."
Dr. Lopez (who was received as father's expert in childhood psychiatry) testified that he has prescribed medications for most of daughter's psychiatric disorders. According to Dr. Lopez, daughter's Tourette's disorder in particular causes daughter " to have these vocal tics" that tend to increase in magnitude when she is under stress. Dr. Lopez testified that he had observed a recent " exacerbation of the tics" from daughter. Dr. Lopez further testified that daughter was jumping up and down, moving her hands erratically, and screaming during an appointment about two weeks before the evidentiary hearing. In Dr. Lopez's opinion, daughter could perform standard activities of daily living (such as taking a shower, brushing her hair, and dressing herself) and also could hold a job— " with help and support." However, Dr. Lopez acknowledged that living on her own and obtaining full-time employment would be stressors for daughter.
Other than babysitting five hours per week, daughter's testimony revealed almost no employment history. She testified [62 Va.App. 721] that she worked for three days as a ride operator at Busch Gardens— but had to quit that job because she could not stand for an eight-hour shift due to her fibromyalgia and her employer would not permit her to sit on a stool. According to daughter's testimony, the pain caused by her fibromyalgia limits her ability to perform many activities, which is further limited by her other disorders. Daughter testified that she has difficulty cleaning the house and also has difficulty unloading the
dishwasher because the tics caused by her Tourette's disorder cause her to drop dishes.
Daughter acknowledged that she had earned her GED, obtained a driver's license, and enrolled at a local community college. In her first semester at the community college, she dropped out of one class, failed another, and passed the remaining class (testifying that she received an " A" in that class because the instructor permitted her to do extra credit work). Due to her disorders, daughter testified that she had great difficulty sitting through class sessions and that she was not even able to record lectures because her obsessive compulsive disorder caused her to move the recording device constantly. Daughter testified that she often drove herself to class during her first semester at the community college, but that she needed mother to drive her home on at least three occasions due to anxiety or a flare-up of her Tourette's disorder. Daughter's second semester began three weeks before the evidentiary hearing in the trial court, and daughter testified that she no longer drove herself to class (but was instead driven there by her boyfriend) because of worsened pain attributable to fibromyalgia and a worsening of her tics caused by stress.
Mother testified that she is daughter's sole caretaker and that father does not provide any in-person support for the care of daughter. Daughter and mother both referenced an episode that occurred about a year or two before the evidentiary [62 Va.App. 722] hearing, when daughter suffered severe tics while with father at a movie theater. On direct examination, mother testified:
It was more than a tic. It almost looked like a grand mal seizure. I mean, her tics were out of control. They had to let everybody out of the theater. They had to have management come in. And Bruce said, " You need to come in here and help me. I can't do this on my own." And he and I physically carried her out and put her in the car. He didn't say a word to me and just left the scene.
When asked on cross-examination whether she had observed other tics of a similar level of severity from daughter ...