COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata
Argued at Alexandria, Virginia
MEMORANDUM OPINION * BY
CHIEF JUDGE JOHANNA L. FITZPATRICK
OCTOBER 31, 2000
Record No. 0084-00-4
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
John D. Steffan (Steffan & Associates, on
briefs), for appellant.
Scott A. Surovell (Surovell, Jackson,
Colten & Dugan, on brief), for appellee.
In this domestic relations case, Fernando Cardozo (father)
appeals the trial court's child support order.
On appeal, he
contends the trial court erred: (1) in its computation of his
gross income; (2) in failing to deviate from the presumptive
amount of child support; (3) in finding that he and his witnesses
were not credible; and (4) abused its discretion in awarding
Finding no error, we affirm.
On appeal, we construe the evidence in the light most
favorable to mother, the prevailing party below, granting to
that evidence all reasonable inferences fairly deducible
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
See Donnell v. Donnell, 20 Va. App. 37, 39, 455
S.E.2d 256, 257 (1995) (citing McGuire v. McGuire, 10 Va. App.
248, 250, 391 S.E.2d 344, 346 (1990)).
So viewed, the evidence established father and Laura
Daleski (mother) were never married.
They had six children
Subsequently, father married and has two children
with his wife.
Father paid child support to mother for their
six children pursuant to an order from the Juvenile & Domestic
Relations District Court of Fairfax County (juvenile court),
however, there have been historical and continuing arrearages.
In May 1998 one child began living with father, and a second
child was expected to join father's household in September 1999.
Due to this change in circumstances, father filed a motion to
modify child support in the juvenile court.
Mother filed a
cross motion to modify child support based on an increase in
The juvenile court awarded mother an increase
to $905 per month, and father appealed.
Father and his wife started Cardozo Concrete, a jointly
owned company in which he owned 49% and his wife owned 51% of
The business was operated out of the marital
The home had a value of between $170,000 and $173,000,
and each claimed to earn approximately $48,000 per year.
also listed income of $19,500 on his 1998 W-2 form.
of father and his wife show extensive personal use of a company
credit card including liquor purchases, groceries, entertainment
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Father also bought several expensive cars, some
in his name and some in the name of the business.
At trial, father and his wife testified that their income
had not changed substantially and that their business was not
making a profit.
The trial court found that the couple ran
their business like a "personal piggy bank" and blurred the
lines between personal and business income and expenses.
trial judge found their testimony and that of their witnesses to
be wholly incredible and rejected it.
He determined father's
gross income to be $5,280 per month from the available tax
records and other documentary evidence and ordered the
presumptive guideline amount of child support pursuant to Code
He found no reason to deviate from the presumptive
amount and ordered father to pay $10,000 of mother's attorney's
CALCULATION OF FATHER'S INCOME
"Decisions concerning both [spousal and child] support rest
within the sound discretion of the trial court and will not be
reversed on appeal unless plainly wrong or unsupported by the
Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d
875, 876 (1994).
"The weight which should be given to evidence
and whether the testimony of a witness is credible are questions
which the trier of fact must decide."
Luczkovich v. Luczkovich,
26 Va. App. 702, 715, 496 S.E.2d 157, 163 (1998) (citations
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Father argues that the trial court erroneously included his
officer loans as income and failed to understand the testimony
regarding his K-1 tax form and officer loans.
The record shows
that both father and father's accountant failed to explain the
way business loans to officers were handled or the basis for the
Father specifically evaded questions regarding
bookkeeping and stated his wife was his bookkeeper.
testimony, his wife said she was not that involved with the
books and was more a mother to his children than a bookkeeper.
Father and his accountant testified that it was rare that an
officer loan was repaid to the company.
Code § 20-108.2(C) defines "gross income" for the purposes of
calculating child support.
It states "[g]ross income shall be
subject to deduction of reasonable business expenses for persons
with income from self-employment, a partnership or a closely
The burden of proving that the business
expenses are reasonable falls on the person involved in the
See Code § 20-108.2(C).
The record in the instant
case shows the trial court based its calculation of father's
gross income on the undisputed content of the bank records, IRS
and accounting records, and credit card statements.
evidence was both inconclusive and contradictory, and we find no
error in the trial court's rejection of that evidence.
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DEVIATION FROM PRESUMPTIVE AMOUNT OF CHILD SUPPORT
Father next contends the trial court erred in failing to
consider his support of his two other children and deviate from
the guideline amount of child support.
presumption exists that the amount derived from the guidelines,
Code § 20-108.2, is correct."
Auman v. Auman, 21 Va. App. 275,
277, 464 S.E.2d 154, 155 (1995).
Code § 20-108.1(B) states in
In order to rebut the presumption, the
court shall make written findings in the
order, which findings may be incorporated by
reference, that the application of such
guidelines would be unjust or inappropriate
in a particular case. The finding that
rebuts the guidelines shall state the amount
of support that would have been required
under the guidelines, shall give a
justification of why the order varies from
the guidelines, and shall be determined by
relevant evidence pertaining to the
following factors affecting the obligation,
the ability of each party to provide child
support, and the best interests of the
child: 1. Actual monetary support for
other children, other family members or
former family members[.]
The trial court, in response to a question from father's
attorney, stated he had taken the father's other obligations to
his two children into consideration when calculating father's
child support obligation.
A trial court may consider payor's
obligation to additional children, but is not required to use
this as a basis for deviation or to give a dollar for dollar
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The record discloses no error in the trial judge's
application of the guidelines.
TRIAL COURT'S FINDING THAT FATHER AND HIS
WITNESSES WERE NOT CREDIBLE
"The trial court's decision, when based upon credibility
determinations made during an ore tenus hearing, is owed great
weight and will not be disturbed unless plainly wrong or without
evidence to support it."
Douglas v. Hammett, 28 Va. App. 517,
525, 507 S.E.2d 98, 102 (1998).
In the instant case, father and
his witnesses made numerous inconsistent statements about the
accounting practices of the business, the profitability of the
business and the intermingling of business and personal
Father's accountant was unaware of
inconsistencies on his preparation and submission of business
Among other items, he claimed depreciation on
vehicles not owned by the corporation and could not explain his
80/20 split between personal and business use of the vehicles.
The evidence shows repeated intermingling of business and
Father, his wife and their accountant had
inconsistent explanations for myriad personal expenditures made
from business funds.
The trial court determined that the
testimony of father and his witnesses was in direct conflict
with the uncontested documentary evidence and lacked
Ample credible evidence supports this
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Attorney's fees and costs may be awarded in a child support
Edwards v. Lowry, 232 Va. 110, 114, 348
S.E.2d 259, 262 (1986).
An award of attorney's fees and costs
is within the sound discretion of the trial judge.
Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987).
was continually in arrears in child support; had a larger income
than mother; and was recalcitrant in providing discovery.
find no abuse of discretion in the trial court's award of
attorney's fees to mother.
For the foregoing reasons, the order of the trial court
awarding child support and attorney's fees is affirmed.
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