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Habboush v. Walsh6/13/2000
MEMORANDUM OPINION *
FROM THE CIRCUIT COURT OF HENRICO COUNTY L.A. Harris, Jr., Judge
Edward H. Habboush (father) appeals the decision of the trial court denying his motions for child support, modification of visitation and attorney's fees. He contends that the trial court specifically erred in failing to order child support nunc pro tunc as of November 21, 1997; failing to further limit Elizabeth H. Walsh's (mother) visitation; failing to order the payment of attorney's fees for expenses incurred in seeking information on mother's income; and failing to accept depositions into evidence.
For the reasons that follow, we affirm the decision of the trial court.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to the disposition of the appeal.
On appeal, we review the evidence and all reasonable inferences in the light most favorable to the party prevailing below. The trial court's finding will not be disturbed on appeal unless plainly wrong or without evidence to support it. See Martin v. Pittsylvania County Department of Social Services, 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
SUPPORT NUNC PRO TUNC
" ecisions concerning child support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by evidence." Barnhill v. Brooks, 15 Va. App. 696, 699, 427 S.E.2d 209, 211 (1993) (citation omitted).
Based upon the evidence presented at the June 7, 1999 hearing, the trial court imputed $583 in monthly income to mother and ordered her to pay $550 in monthly child support, effective June 1, 1999. Father contends that the trial court erred when it refused to order mother to pay this same amount of child support retroactive to November 21, 1997. In support of this contention, father relies upon an order entered by another judge of the circuit who had responsibility for this case before his retirement from the bench. That order, entered December 2, 1997, directed the parties to
forthwith meet and confer as to the amount of child support to be paid to the custodial parent [father] by the non-custodial parent [mother], and submit an endorsed decree fixing the same upon reaching an agreement, and only if an agreement cannot be reached and it becomes necessary to do so, to schedule a hearing to set the support amount, nunc pro tunc November 21, 1997.
Father argues that, because no decree setting an amount of support was subsequently entered, he was entitled to child support retroactive to November 21, 1997. However, at the June 7, 1999 hearing, mother presented evidence, which was accepted by the trial court, that beginning in 1998 she paid father $185 in monthly child support pursuant to an agreement between the parties which was presented to and approved by the judge previously assigned to the case but never reduced to a written order.
The evidence established that mother paid monthly child support pursuant to the parties' agreement from 1998 until the time of the June 7, 1999 hearing. "'Any child support must be based on circumstances existing at the time the award is made.'" Sargent v. Sargent, 20 Va. App. 694, 703, 460 S.E.2d 596, 600 (1995) (citation omitted).
We find no error in the trial court's refusal to order mother to pay the increased amount of child support retroactive to November 1997.
MODIFICATION OF VISITATION
Father contends that the trial court erred when it refused to modify mother's visitation rights or to hold her in contempt for violating the court's visitation order. "In matters conce
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