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Tidwell v. Late

Court of Appeals of Virginia

May 30, 2017

DREW TIDWELL
v.
JENNIFER LATE

         FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Bruce D. White, Judge.

          Drew Tidwell, pro se.

          Jennifer Late, pro se, on brief). Appellee submitting on brief.

          Present: Judges Alston, O'Brien and Senior Judge Clements Argued at Alexandria, Virginia

          OPINION

          HARRISON CLEMENTS JUDGE JEAN

         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.

         BACKGROUND

         "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:

i. Pursuant to the Pendente Lite Order issued on May 18, 2012, beginning May 1, 2012, Plaintiff [father] shall pay to Defendant [mother], as child support, the sum of One Thousand and Thirty-Six and 00/100 Dollars ($1, 036.00), to be paid by the First day of each month.
ii. Commencing August 1, 2012 and continuing through December 31, 2012, the parties are agreed that Plaintiff [father] shall pay to Defendant [mother], as child support, according to the shared custody calculation, the sum of Six Hundred and Sixty-Seven Dollars and 00/100 ($667.00).
iii. Commencing January 1, 2013 and continuing through March 31, 2013, the parties are agreed that Plaintiff [father] shall pay to Defendant [mother], as child support, according to the shared custody calculation, the sum of One Thousand and Ninety-Six Dollars and 00/100 ($1, 096.00).
iv. Commencing April 1, 2013 and continuing every month thereafter until further order of the Court Plaintiff [father] shall pay to Defendant [mother], as child support, according to the shared custody calculation, the sum of One Thousand Dollars and 00/100 ($1, 000.00) per month, to be paid by the First day of each month. This constitutes a modification to the parties' Agreements (Exhibits A and B) such that the child support is no longer self-executing as set forth therein.
v. The parties shall share equally (50/50) the costs of a child's participation in agreed-upon extracurricular activities. On the 1st day of each month the parties will provide an accounting to the other party of the children's agreed-upon extracurricular activities, including receipts and proof of payment, for immediate reimbursement for one-half (1/2) of the costs incurred during the preceding month. In no event shall reimbursement be later than the 15th day of the same month. A party shall make their objection to a child's extracurricular activity known in writing, after which the extracurricular activity shall no longer be deemed to be "agreed upon."

         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:

THE COURT: Thank you. Sir, on your work sheet you have her income at $6, 669 per month. And yours at $3, 895 per month. Did you prepare any additional work sheet such that might be used by the court if the court worked off of her income of $66, 837?
MR. TIDWELL: Yes, I did, Your Honor.
THE COURT: Would you give her a copy.
MR. TIDWELL: It's also a part of my pretrial brief.
THE COURT: I didn't read the pretrial brief, and the reason I didn't do that is that is then you presenting evidence to me outside of court without her having the ...

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