Da'Mes v. Da'Mes

74 Va.App. 138

867 S.E.2d 77

Sufian DA'MES

v.Gada DA'MES

Record No. 0350-21-4

Court of Appeals of Virginia.

JANUARY 11, 2022

Christian A. Brashear, for appellant.

Monica J. Chernin, Culpeper (Law Offices of Monica J. Chernin, P.C., on brief), for appellee.

Present: Judges O'Brien, Malveaux and Senior Judge Annunziata

OPINION BY JUDGE MARY GRACE O'BRIEN

Sufian Da'mes ("father") appeals an order increasing his child support obligation and awarding attorney fees to Gada Da'mes ("mother"). Father challenges both the court's calculation of his income and the attorney fees award.

BACKGROUND

The parties had three minor children when they divorced in June 2020. In February 2019, before the divorce decree was entered, the court ordered father to pay $587 per month in child support, calculated by applying the child support guidelines. See Code § 20-108.2(B).

In July 2020, father moved to modify his child support obligation because his income had decreased, mother's employment had changed, and one child had reached the age of majority. Trial was set for October 2020.

Because father failed to comply with discovery, the court granted mother's motion to compel and continued the trial until February 3, 2021. The court took mother's request for attorney fees under advisement and requested an affidavit to "determine an appropriate award." Mother's counsel filed an affidavit reflecting $1,118.25 in attorney fees with the proviso that "[a]dditional fees and costs will be incurred after 5 PM October 8th, 2020, at a rate of $300 per hour."

At the February 2021 trial, the parties agreed that father was only required to pay child support for the two minor children, who at that time were seventeen and thirteen years old. However, the parties contested their respective incomes. Specifically, they disputed whether father's income should include an inheritance of approximately $600,000, which he had received since entry of the prior support order and deposited into a money market savings account. They also disputed whether his income should include proceeds from the sale of rental property.

The evidence established that mother earned $18.20 per hour working at a craft store. Father owned and managed rental properties. At the time of trial, he owned six properties, but only three were rented. Father introduced evidence of his monthly mortgage payments for the properties and documentation of the property taxes he paid in 2020. He also introduced an exhibit purporting to show rental receipts and expenses for the properties. The exhibit reflected that father's annual income was $9,669, or $805.75 per month.

In May 2020, father sold one of his rental properties and received $147,410 in net proceeds. He presented evidence that he applied $34,625 of the proceeds toward marital debts and was left with a balance of $112,785.

The court determined that father's income included both the $600,000 inheritance and the $112,785 balance from the sale of the rental property. The court rejected the argument that only interest from the inheritance could be considered income, noting that father had not invested the money and, therefore, "[t]he inheritance is producing no income, but surely could." Instead, finding that the inheritance "represents a substantial financial resource and merits consideration for the best interest of the children," the court "divide[d] the inheritance by the amount of years left until the last child reaches the age of majority, which is five years." Regarding proceeds from the rental property sale, the court calculated that the balance of $112,785 constituted an additional monthly income of $9,388 over a twelve-month period.

Based on these figures, the court determined that father's monthly gross income was $20,193.75. It also found that mother's monthly gross income was $2,977. Pursuant to the child support guidelines, father's presumptive obligation was $2,247 per month, instead of his current obligation of $587 per month. The court found that this almost four-fold increase was "unjust." Therefore, the court deviated from the guideline amount, ordering father to pay child support of $795 per month. The court reasoned that "this increased amount reflects the significant amount of the inheritance but considers all of the factors enumerated in [Code §]20-108.1, specifically factors (11), (12) and (15)."¹

The court also "addresse[d] the issue of attorney's fees for the motion to compel." Mother's counsel had submitted an updated affidavit showing that $5,010 in fees and costs were incurred in the representation, and she attached a billing statement with "[f]ees and services highlighted in orange [that were] previously submitted fees for the [m]otion to [c]ompel." The court noted that father's failure to provide timely discovery required a continuance of the trial date, and it awarded mother $5,000 in attorney fees "for the [m]otion to [c]ompel."

ANALYSIS

A. Standard of Review

"The determination of child support is a matter of discretion for the circuit court, and therefore we will not disturb its judgment on appeal unless plainly wrong or unsupported by the evidence." Niblett v. Niblett , 65 Va. App. 616, 624, 779 S.E.2d 839 (2015) (quoting Oley v. Branch , 63 Va. App. 681, 699, 762 S.E.2d 790 (2014) ). "Child support decisions ... ‘typically involve fact-specific decisions best left in the "sound discretion" of the trial court.’ " Id. (quoting Brandau v. Brandau , 52 Va. App. 632, 641, 666 S.E.2d 532 (2008) ).

Father contests both the court's interpretation of the term "income" as used in the child support statute and the court's treatment of certain funds as income when calculating his support obligation. "The issue of a party's income is a question of fact that we will not disturb unless it is plainly wrong or without evidence to support it." Milam v. Milam , 65 Va. App. 439, 462, 778 S.E.2d 535 (2015). However, "[i]interpreting a statute is a pure question of law that the Court reviews de novo. " Cleary v. Cleary , 63 Va. App. 364, 369, 757 S.E.2d 588 (2014).

B. Inheritance as Income

Father's first four assignments of error challenge the court's ruling that his $600,000 inheritance constituted income for purposes of computing his monthly child support obligation.

"[T]he starting point for a trial court in determining the monthly child support obligation of a party is the amount as computed by the schedule found in Code § 20-108.2(B)." Oley , 63 Va. App. at 689, 762 S.E.2d 790 (quoting Richardson v. Richardson , 12 Va. App. 18, 21, 401 S.E.2d 894 (1991) ). "This amount ‘varies according to the combined gross income of the parties and the number of children involved.’ " Id. at 689-90, 762 S.E.2d 790 (quoting Richardson , 12 Va. App. at 21, 401 S.E.2d 894 ). Code § 20-108.2(A) establishes a rebuttable presumption that application of the schedule contained in the statute results in the correct amount of a child support award. See Niblett , 65 Va. App. at 625, 779 S.E.2d 839.

After determining the presumptive amount of support according to the schedule, the court may adjust the amount based on factors set forth in Code § 20-108.1(B). Howe v. Howe , 30 Va. App. 207, 214, 516 S.E.2d 240 (1999). "Deviations from the presumptive support obligation must be supported by written findings which state why the application of the guidelines in the particular case would be unjust or inappropriate." Id. (quoting Richardson , 12 Va. App. at 21, 401 S.E.2d 894 ). Additionally, "[t]he court's paramount concern when awarding child support is the best interest of the children." Stiles v. Stiles , 48 Va. App. 449, 456, 632 S.E.2d 607 (2006).

Father argues the court erred in finding that the principal of his $600,000 inheritance "created a large one-time income event." He contends that only the interest from the principal amount of his inheritance should be treated as income.

"The amount of child support under the child support guidelines must be based on the parents’ actual gross income." West v. West , 53 Va. App. 125, 135, 669 S.E.2d 390 (2008). Code § 20-108.2(C) defines gross income as:

all income from all sources, and shall include, but not be limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits ..., workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts , prizes or awards.

(Emphasis added).

This Court has held that "gifts" include inheritances that "should be considered in the gross income computation" for purposes of determining child support. Goldhamer v. Cohen , 31 Va. App. 728, 737, 525 S.E.2d 599 (2000). However, "[i]f the application of the guidelines after including the gift is unjust or inappropriate, [the court] may make written findings and deviate from the guidelines based on the statutory factors in Code § 20-108.1(B)." Id. In Goldhamer , a child support appeal, the evidence established that a parent received interest income from a trust she had inherited. Id. at 736, 525 S.E.2d 599. The court omitted the inheritance from the computation of the parent's gross income. Id.

This Court reversed. Id. at 737-38, 525 S.E.2d 599. We specifically held that gifts under Code § 20-108.2(C) include inheritances and constitute income even if irregular. Id. "The statute clearly includes irregular income in the gross income computation because gifts, prizes, or awards are defined as gross income." Id. ; see Code § 20-108.2(C). We acknowledged a court's authority to deviate from the presumptive guideline depending upon the liquidity of the inheritance income, its regularity, its use to reduce marital debts, and other factors. Id. at 737-38, 525 S.E.2d 599 ; see Code § 20-108.1(B)(15) (allowing for deviations from presumptive guidelines based on "other factors as are necessary to consider the equities for the parents and children").

Father...