MEMORANDUM OPINION* BY v. Record No. 0070-20-4 JUDGE MARY GRACE O’BRIEN OCTOBER 27, 2020 KIMBERLY ELIZABETH HYNES ROY

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Randy I. Bellows, Judge

(Mark Arick Roy, pro se; Samuel A. Leven; Roy J. Baldwin; The Baldwin Law Firm, on brief), for appellant. Appellant submitting on brief.1

Kristen L. Kugel (Cooper Ginsberg Gray, PLLC, on brief), for appellee.

Kimberly Elizabeth Hynes Roy (“wife”) was granted a divorce from Mark Arick Roy

(“husband”) after a trial which addressed issues of equitable distribution, child support, and spousal support. Husband assigns several errors to the court’s rulings on equitable distribution and child support.

First, he contends the court erred by including the full cost of a nanny in its calculation of child support guidelines because “the children are in school for more than half the time the nanny works, [the nanny] provides other household services to [wife] that do not qualify as child care

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

Appellant filed his opening brief by counsel Samuel A. Leven and Roy J. Baldwin of The Baldwin Law Firm, LLC. However, on June 5, 2020, this Court granted counsel’s motion for leave to withdraw as counsel of record. under [Code] § 20-108.2(F), and her [salary] far exceeds ‘the amount required to provide quality care from a licensed source.’”

Second, husband argues the court erred by awarding him “only 25% of the marital portion of [wife’s] bonuses” because it based the decision on erroneous factual findings.

Third, husband contends the court compounded the first two errors by denying his motion to reconsider.

Fourth, husband argues the court erred by finding insufficient evidence that a September

2018 payment to wife was a bonus subject to equitable distribution and by “fail[ing] to consider additional evidence of the same.”

Fifth, husband argues the court erred by failing to consider evidence proffered post-trial that a March 2018 deposit to wife’s bank account was “a marital bonus subject to equitable distribution.”

Finally, husband argues the court erred “when it failed to consider additional evidence and reconsider its determination of the value of the marital residence” because wife “claimed in discovery that the marital residence had a different value than she claimed at trial.”

BACKGROUND

The parties married in 2000 and separated in 2018. They had three children, who were ages thirteen, eleven, and nine at the time of the final hearing in October 2019. A previous court order

granted the parties joint legal custody, with wife having primary physical custody. Wife and the children reside in the parties’ former marital residence in northern Virginia, and husband lives in the parties’ Virginia Beach home.

A. Child-Care Expenses

Wife is the chief executive officer of a large construction firm, HITT Contracting, Inc.

(“HITT”) and works from 7:30 a.m. until 4:45 p.m. Historically, the parties have employed a nanny for child care. The current nanny has been with the family for seven years; another nanny worked for them for four years. The nanny is at wife’s residence from 7:00 a.m. until 5:30 p.m. She cares for the children before and after school for a total of five hours: two hours before the younger children board the school bus at 9:00 a.m. and three hours after the oldest child returns home at

2:30 p.m. Wife testified that she pays $665 per week for child care, giving the nanny a $640 check plus $25 cash for gas and other expenses. Occasionally, the nanny runs additional errands unrelated to caring for the children, and wife pays her extra money. Wife also pays the nanny’s weekly salary when the children are at summer camp. At trial, wife introduced bank statements from her checking account corroborating her child-care payments.

When asked on cross-examination about the possibility of the children attending the county’s school age child-care program (“SACC”) as an alternative to employing the nanny, wife explained that she understood SACC had a long waitlist and was unavailable for middle-school students. Husband did not cross-examine wife further or present evidence of other child-care options.

The court ordered husband to pay “guideline child support” of $1,575 per month. The court’s calculation of the guidelines included the full $665 per week paid to the nanny as child-care costs pursuant to Code § 20-108.2(F). The court ruled that the nanny’s salary would only be included in the guideline calculation until the youngest child turned thirteen.

B. Wife’s Bonuses

Both parties testified about their employment history in the construction industry. Wife has spent her entire career with HITT. Husband has also worked for HITT; however, he left for a competing firm for several years before returning in early 2016 as a vice president in HITT’s business unit. Wife worked in a different department.

In summer 2017, wife was promoted to CEO of HITT, effective January 2018. At that time, husband was passed over for a promotion that was given to one of his peers. At trial, wife testified that she was not involved in that decision.

Following wife’s promotion, husband became hostile toward wife and HITT. He “told [her]

constantly that [she] was a terrible CEO” and that he “had a vote of no confidence” in her. Husband wrote a letter resigning from HITT in early January 2018, but he rescinded his resignation shortly thereafter.

In March 2018, husband officially resigned in a letter addressed to wife, with copies to other

corporate executives. The letter stated, I submit this letter as resignation of my position as Vice President at HITT Contracting effective April 11, 2018. I appreciate the employment opportunity the company has provided me, along with the many challenges presented along the way. After careful consideration, the company’s leadership and culture do not align with my moral standards and personal development goals. It is not without consternation[] that I have arrived at the decision to pursue other opportunities. I wish the company success in the future.

(Emphasis added). At trial, husband testified that he knew wife would be “worried about her career” as a result of the letter and that she asked him not to send it.

During this time, husband also repeatedly accused wife of having an affair with the owner of HITT, as well as the man who was promoted instead of him. Husband telephoned the owner’s wife to relay his suspicions. At trial, husband testified that he called the owner’s wife to have “a conversation about infidelity” and suggested she “ask [her] husband” about meetings with wife in a private conference room. Wife denied any infidelity. The parties separated in July 2018.

At trial, wife testified concerning her compensation and bonuses. The bonuses, determined in February of each year, were based on profits from the preceding year, performance evaluations, and client reviews. The bonuses are typically paid in two installments six months apart. To receive a bonus payment, an employee must remain employed by HITT through the date of disbursement.

The court found that two bonuses received in 2019 were marital property, and it determined

the marital portion. After analyzing the factors affecting equitable distribution in Code § 20-107.3, the court ruled that wife was entitled to 75% of the marital share of her 2019 bonuses and husband was entitled to the remaining 25%. Noting that payment of the bonuses was dependent on wife remaining employed by HITT, the court found that husband’s behavior was an attempt to adversely affect her employment and, consequently, her bonuses. The court found husband’s resignation letter, stating that the “company’s leadership and culture do not align with my moral standards,”

constituted an “attack on [wife].” The court also relied on husband’s phone call to the wife of HITT’s owner, which “clearly implied that [wife was] having an affair” with the owner, an allegation the court found no credible evidence to support.

The court also considered the fact that wife’s bonuses were dependent on HITT’s current profitability and client satisfaction. Because these two factors “look up to the present time” and thus contemplate post-separation circumstances, the court determined it would not be “appropriate to divide the bonus[es] equally.”

During closing argument, husband presented a new claim for equitable distribution of a

September 2018 deposit into wife’s bank account, which he argued was a bonus. He referred the court to wife’s bank statements that had been admitted into evidence. One statement reflected a deposit from HITT of $133,965.67 on September 7, 2018. Husband represented that he discovered this deposit during a recess in response to the court’s request for additional information pertaining to disputed mortgage payments.^[2] Husband conceded that the September 2018 deposit had not been addressed during trial. He acknowledged that although he had questioned wife about her bonuses when the bank statements were admitted, he did not cross-examine her about this deposit or present any evidence concerning it.

The court declined to consider additional evidence or argument to support husband’s new equitable distribution claim, noting that “we’ve had extensive discussion in the last two days on this very issue[,] and this is the very first time [the court is] hearing about this.” The court further stated

that it “gave both parties the opportunity to put on such evidence as they wish[ed,] and so the evidence is closed.” The court characterized as “speculative” husband’s argument that the September 2018 bank statement reflected a bonus to wife and declined to classify the deposit as marital property.

C. Marital Residence

The parties presented competing evidence of the value of the marital residence. They purchased the home approximately twelve years before trial, and wife had lived there since they bought it. Husband moved to Virginia Beach in May 2018 and has not returned to the marital residence since July 2018.

To establish the value of the marital residence, husband relied upon a 2014 appraisal showing the home was worth $1,437,000. Wife testified that the house needed significant repairs and introduced a 2019 tax assessment that reflected a value of $1,243,910.

During closing argument, husband attempted to introduce wife’s answer to an interrogatory concerning the value of the marital residence. However, because the interrogatory answer was not addressed in testimony or introduced into evidence during the trial, the court declined to consider it.

The court noted that the 2019 tax assessment was more recent than the 2014 appraisal and concluded that the assessment provided the more accurate determination of the value of the marital residence. It valued the residence accordingly and ordered an equal division of the equity in the home.

The court granted the divorce based on one-year separation, awarded husband spousal support in the amount of $4,000 per month for three years, and provided for the division of personal property.

D. Motion to Reconsider

Husband subsequently filed a motion to reconsider the court’s valuation of the marital residence and denial of his request to introduce wife’s interrogatory answer in his closing argument.

He also asked the court to reconsider its decision to include the nanny’s entire salary as a child-care cost under Code § 20-108.2(F). Additionally, he requested that the court reconsider its ruling regarding the September 2018 deposit and consider additional evidence supporting his contention

that it was a bonus. Specifically, husband presented a HITT pay statement from September 7, 2018, purportedly showing a “bonus” payment of $133,965.67 to wife. The pay statement had never been introduced at trial.

Finally, in the motion to reconsider, husband raised a new claim seeking equitable distribution of a March 8, 2018 deposit into wife’s bank account. He had not presented any evidence during trial to support this claim.

The court denied the motion to reconsider in its entirety without a hearing.

ANALYSIS

A. Computation of Child Support

“Decisions 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 the evidence.” Tidwell v. Late, 67 Va. App. 668, 678 (2017) (quoting Rinaldi v. Dumsick, 32 Va. App. 330, 334 (2000)).

“Child support decisions . . . ‘typically involve fact-specific decisions best left in the “sound

discretion” of the trial court.’” Niblett v. Niblett, 65 Va. App. 616, 624 (2015) (quoting Brandau v. Brandau, 52 Va. App. 632, 641 (2008)).

“The court’s discretion, however, is not without bounds.” Id. When determining child support, a court is first required to follow mandatory steps, including calculating work-related child-care costs, to establish a presumptive amount of support. See Code § 20-108.1; Code

§ 20-108.2(B), (F). “[U]nless it appears from the record that the circuit court judge has abused his discretion by not considering or by misapplying one of the statutory mandates, the child support award will not be reversed on appeal.” Niblett, 65 Va. App. at 624 (alteration in original) (quoting

Milam v. Milam, 65 Va. App. 439, 451 (2015)).

Husband argues that the court abused its discretion by including the nanny’s full salary as a work-related child-care cost in its calculation of the child support guidelines. He asserts that wife failed to prove both that the nanny’s weekly salary was “reasonable” and that the nanny was engaged in work-related child care as required by Code § 20-108.2(F).3 Code § 20-108.2(F) provides that when calculating child support, “[a]ny child-care costs incurred on behalf of the child or children due to employment of the custodial parent shall be added to the basic child support obligation. Child-care costs shall not exceed the amount required to provide quality care from a licensed source.” A custodial parent must produce sufficient credible evidence showing that the claimed child-care cost is reasonable and for work-related child care. See

Tidwell, 67 Va. App. at 683 (holding that mother’s testimony was credible and sufficient to prove that her child-care expenses were reasonable and work-related); cf. Prizzia v. Prizzia, 58 Va. App.

137, 171-72 (2011) (affirming exclusion of day care expenses from child support calculation where custodial parent failed to produce any credible evidence as to the reasonableness of the claimed

costs). The reasonableness inquiry examines whether the claimed costs are “appropriate under the circumstances.” Oley v. Branch, 63 Va. App. 681, 697 (2014).

Husband argues that wife failed to prove the nanny’s salary was reasonable because wife provided no evidence that she considered other options or that the decision to have the nanny

provide child care was in the children’s best interests. However, wife did testify about the infeasibility of other child-care arrangements: she explained that SACC was not an option because she understood that it had a long waitlist and was not available for middle-school students, such as her son.

Additionally, the parties had employed a nanny for eleven years, since their oldest child was

two, and this particular nanny had worked for the family for seven years. From these facts, the court was free to conclude that the parties’ child-care needs were best served by continuing to employ the nanny. See Tidwell, 67 Va. App. at 683 (affirming award based on mother’s testimony concerning costs to “place the children in the same day care and summer camps that they had attended for years”).

Husband also asserts that because the children are in school for more than half of the nanny’s workday, the court abused its discretion in determining that the nanny’s full salary was for child care. He relies on Oley v. Branch, which affirmed the denial of child-care costs to a father who “failed to produce credible evidence that the child[-]care costs he was seeking were employment related.” 63 Va. App. at 697. In Oley, the “nanny worked from 8:30 a.m. to 5:00 p.m.

cooking, cleaning, and doing laundry while the children were in school 8:15 a.m. to 3:00 p.m. and [the father] was working from home.” Id. The evidence showed the “nanny” was employed primarily as a housekeeper; she arrived after the children left for school, and she only provided two hours of care for them when they returned home. Id. at 688. We determined that the court “was free to conclude that [the father] failed to prove that the nanny was necessary due to his employment or that he failed to demonstrate the requested amount of day care expenses was appropriate under the circumstances.” Id. at 697.

Here, by contrast, the court found that the nanny’s role was to care for the children so that wife could maintain employment with HITT. The record supports this finding. Wife leaves shortly after the nanny arrives in the morning and does not return until late afternoon. The nanny

supervises the children for two hours before getting them on the school bus in the morning and for three hours after school. Nothing in Code § 20-108.2(F) specifically limits child-care costs to those incurred only when the provider is in direct contact with children.^[4]

Further, unlike in Prizzia, where the custodial parent failed to produce any credible evidence

of reasonable day care costs, see 58 Va. App. at 171-72, here wife not only testified about the nanny’s child-care responsibilities and compensation but also produced corroborating bank statements. Wife also explained that she provided the nanny with additional compensation, which