THE CIRCUIT COURT OF FAIRFAX COUNTY Bruce D. White, Judge.
Tidwell, pro se.
Jennifer Late, pro se, on brief). Appellee submitting on
Present: Judges Alston, O'Brien and Senior Judge Clements
Argued at Alexandria, Virginia
HARRISON CLEMENTS JUDGE JEAN
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.
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)).
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."
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.
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.
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
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.
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.
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.
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.
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.
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."
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."
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
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