COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Frank and Clements 

Argued at Alexandria, Virginia 

NOEL J. ALBERT 

 

v. Record Nos. 1439-01-4 and OPINION BY 

 1987-01-4 JUDGE ROBERT P. FRANK 

 MAY 21, 2002 

CYNTHIA G. ALBERT 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

R. Terrence Ney, Judge 

 Ted Kavrukov (Kavrukov & DiJoseph, on 

briefs), for appellant. 

 No brief or argument for appellee. 

 In this consolidated appeal, Noel J. Albert (father) appeals 

the trial court's denial of his Motion to Modify Visitation and 

Child Support. He contends the trial court erred in (1) not 

modifying visitation to reduce childcare costs, (2) failing to 

impute income to Cynthia G. Albert (mother), and (3) awarding 

attorney's fees to mother. Father also appeals the trial court's 

finding that he was responsible for payment of certain medical 

expenses of the minor children. For the reasons stated, we 

affirm. 

I. BACKGROUND 

A. Visitation and Child Support 

 The parties were divorced in June 2000. Custody of the 

parties' three children was given to mother, and a schedule of 
visitation with father was established. On January 18, 2001, 

father filed a Motion to Modify Visitation and Child Support. 

 The motion stated mother works "32 hours a week, 24 hours on 

weekends and 8 hours on Tuesdays from 3:00 p.m. to 11:00 p.m." 

Also, mother "pays for child care while she works on Tuesdays." 

Father proposed he care for the children on Tuesdays, from the end 

of the school day until the next morning, when he would take the 

children to school. In the alternative, father suggested the 

parties' thirteen-year-old daughter provide childcare for the 

other two children on Tuesdays. Father indicated in his motion 

that either alternative would "significantly diminish child care 

costs" and, therefore, reduce child support. 

 A hearing on the motion was set for March 22, 2001. No one 

testified at the hearing, despite the motion's evidentiary nature. 

The hearing consisted of a dialogue between the judge and counsel. 

Neither party objected to this procedure; therefore, we accept the 

dialogue as "proffered testimony." However, we can glean only 

minimal information from this dialogue.1

 At the beginning of the hearing, counsel for mother indicated 

she could stop working on Tuesday, thereby saving childcare 

expenses for that day. Counsel opined this change would eliminate 

 1

 We realize many trial issues are resolved with proffered 

evidence, but counsel and the trial court must ensure the 

proffers contain all of the information necessary to resolve the 

issue at trial and to provide a sufficient record for appellate 

review. 

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any interruption in the children's schedules. The children 

"wouldn't have to . . . go to dad's, get up early on Wednesday 

morning and be driven to school." 

 Father's attorney responded that, if mother did not work on 

Tuesdays, her salary would be diminished considerably, and the 

court then must impute that lost income to her. Father's counsel 

represented that mother's total annual salary was $74,823.32, or 

$6,235.28 per month. Mother's attorney explained, however, 

because of a new union contract with increased wages, mother could 

maintain her old salary without working on Tuesdays. 

 Father's counsel stated that if mother continued to work on 

Tuesdays, and the children spent Tuesday nights with father, the 

reduction in childcare costs would be $616 per month. No other 

evidence, by proffer or otherwise, was elicited as to income or 

the expenses of the parties. 

 The trial court ruled the children would not spend Tuesday 

evenings with father. The court further ordered, since mother 

would no longer work on Tuesdays, that both counsel recalculate 

the amount of child support based on the reduction in her income 

and the reduction in childcare expenses. The court denied the 

request for imputation of income, without stating a reason. It 

also awarded attorney's fees in the amount of $780 to mother. 

During the ensuing recess, the parties compromised on an amount of 

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child support of $533 per month. The parties did not file any 

worksheets with the court.2 

 The trial court entered an order on May 10, 2001, denying the 

motion to modify visitation, awarding $533 per month in child 

support,3 and awarding mother $780 in attorney's fees. 

B. Medical Expenses 

 Mother filed a Petition for Rule to Show Cause against father 

on April 11, 2001, claiming he had willfully failed to pay his 

share of the children's medical expenses as provided in the final 

decree of divorce. She claimed he owed $960.92 for these bills. 

 The final divorce decree of the parties provided, 

In the event that the children have 

extraordinary uninsured medical expenses, 

including but not limited to deductibles, 

medicines, therapy, counseling, physical 

therapy, dental and/or orthodontic expenses, 

[father] shall be responsible and pay 50% of 

these expenses. Payment for said expenses 

shall be made at the time [mother] provides 

[father] with evidence of the expense, or at 

such time as a doctor or other medical 

professional requires payment. 

 2

 While the appendix contains worksheets, they were not 

offered into evidence at the hearing nor were they made part of 

the proffer. These documents, therefore, are not part of the 

record and will not be considered by this Court. Rule 5A:10, 

Rule 5A:25. See also John v. Im, 263 Va. 315, 320, 559 S.E.2d 

694, 697 (2002) (noting the appellate court is limited to the 

record before it and cannot consider documents that were not 

submitted to the trial court). 

3

 The order states the support award is based upon "the 

agreement of the parties as to the amount of child support based 

upon the guidelines set forth by the court." 

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The final decree further ordered father to "provide health care 

insurance coverage for the children." 

 A consent order entered on July 23, 1999 set forth custody, 

visitation, and the related issues of health, education, and 

"general upbringing." It required each party "notify the other at 

the time a doctor, dental or medical appointment is made for the 

benefit of the children."4 

 The June 29, 2001 show cause hearing also consisted generally 

of a dialogue between counsel and the court. Mother testified 

 4

 The entire paragraph B, "Health," states: 

1. The parties agree to consult with each 

other on major health decisions, and each 

parent shall have access to professional 

consultation and records. 

2. If any of the children should become 

sick, the parent with whom the child is not 

staying at the time may visit the sick 

child. Each parent is to notify the other 

if any child is sick enough to be taken to 

the doctor or is confined to bed for two 

days or more. 

3. In the event that either parent should 

need to authorize emergency hospitalization, 

medical care or both for either child, that 

parent in whose care or presence the child 

is at the time shall have full authority to 

do so as a custodial parent. 

4. The parties shall notify the other at 

the time a doctor, dental or medical 

appointment is made for the benefit of the 

children. 

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briefly, but not under oath.5 Mother apparently submitted five 

cancelled checks and three credit card receipts, showing payments 

totaling $1,512.84 for various doctors' appointments. 

Additionally, mother apparently presented to father at the 

hearing, for the first time, another medical bill for $204.50, 

raising the total medical bills to $1,717.34.6

 Father's counsel argued his client should not be responsible 

for fifty percent of these bills. He contended mother did not 

have "clean hands" for several reasons. First, contrary to the 

terms of the consent order, she did not notify father of the 

children's appointments that gave rise to these medical bills. 

Also, father never received copies of the bills so that he could 

submit them to his primary or secondary insurance carrier. Father 

further contended that several medical bills were from visits to 

medical providers outside of his insurance plan. 

 At the hearing, father confirmed that his counsel's 

representations to the court were "the truth." Father did not 

testify. Both the judge and mother's counsel accepted the 

representations of fact presented in father's counsel's argument. 

 Although not under oath, mother addressed the trial court and 

admitted that she took the children to two health providers, 

Dr. Sharif and Hour Eyes, who were not on father's insurance plan. 

 5

 Again, father did not object to this procedure. 

6

 Father never questioned or objected to the amount of the 

medical bills. He objected only to paying some or all of them. 

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She indicated Dr. Sharif initially was on the plan and only after 

the services were rendered did she learn that Sharif had dropped 

the plan. She then began taking the children to another doctor. 

Mother explained Hour Eyes told her that they "carry her 

insurance," but, apparently, they did not. 

 The trial court found father was not in contempt of the 

consent order. The court admonished mother to notify father 

whenever the children went to a doctor, "in order to give him the 

opportunity to make sure it's covered by the insurance," and to 

transmit medical bills in a timely fashion, since "it's better to 

provide it [to father] sooner as opposed to later." The trial 

court did order that father pay $960.92 of the unreimbursed 

medical expenses, attorney's fees of $600, and costs of $69.50. 

II. ANALYSIS 

A. Visitation and Child Support 

 Father first contends the trial court erred in not modifying 

its earlier order to allow him visitation on Tuesdays. We 

disagree. 

 When determining whether to change visitation, a trial court 

"must apply a two-pronged test: (1) whether there has been a 

change in circumstances since the most recent [visitation] award; 

and (2) whether a change in [visitation] would be in the best 

interests of the child." Visikides v. Derr, 3 Va. App. 69, 70, 

348 S.E.2d 40, 41 (1986) (discussing this test in the context of 

custody determinations). "In matters of custody, visitation, and 

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related child care issues, the court's paramount concern is always 

the best interests of the child." Farley v. Farley, 9 Va. App. 

326, 327-28, 387 S.E.2d 794, 795 (1990). "In matters of a child's 

welfare, trial courts are vested with broad discretion in making 

the decisions necessary to guard and to foster a child's best 

interests." Id. at 328, 387 S.E.2d at 795. "A trial court's 

determination of matters within its discretion is reversible on 

appeal only for an abuse of that discretion, . . . and a trial 

court's decision will not be set aside unless plainly wrong or 

without evidence to support it." Id. (citation omitted). 

 Here, father did not meet his burden. He did not show any 

change of circumstance had occurred since the last order nor did 

he show a change in visitation would be in the children's best 

interests. Instead, his motion and argument only demonstrated 

that a change would be in his best interest.7 His rationale for 

the Tuesday visitation was to reduce his child support payments by 

saving childcare costs. The trial court did not abuse its 

discretion in denying the motion to change visitation. 

 Father next contends, since mother voluntarily reduced her 

workweek from thirty-two to twenty-four hours by not working 

 7

 While appellant, at oral argument, contended he argued 

during the hearing that a change in visitation would be in the 

children's best interest, we find nothing in the record to 

support that position. 

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Tuesdays, income should be imputed to her. We again must look to 

the "proffered testimony" to determine if father met his burden.8

 The dialogue indicated mother was "willing" to "stop working 

on Tuesdays." The record does not reflect whether she did in fact 

stop working. We, therefore, do not know if she voluntarily 

reduced her income. In fact, at the time of the hearing, all 

indications were mother was still working on Tuesdays; her work 

hours had not changed prior to the hearing. 

 Imputation of income is used by a trial court when deciding 

whether "to deviate from the presumptive amount of child 

support, and 'any child support award must be based on 

circumstances existing at the time the award is made.'" Saleem 

v. Saleem, 26 Va. App. 384, 393, 494 S.E.2d 883, 887-88 (1998) 

(quoting Sargent v. Sargent, 20 Va. App. 694, 703, 460 S.E.2d 

596, 600 (1995)). 

 This Court set forth the parameters for imputing income in 

Niemiec v. Dep't of Soc. Serv., 27 Va. App. 446, 451, 499 S.E.2d 

576, 579 (1998): 

When asked to impute income to a parent, the 

trial court must consider the parent's 

earning capacity, financial resources, 

education and training, ability to secure 

such education and training, and other 

factors relevant to the equities of the 

parents and children. See Brooks [v. 

 8

 While father objected to the May 10, 2001 order on a 

number of bases, including the court's refusal to hear testimony 

on the visitation matter, he did not make an objection based on 

the court's refusal to hear testimony on imputed income. 

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Rogers], 18 Va. App. [585, 592, 445 S.E.2d 

725, 729 (1994)] (citing Code 

§ 20-108.1(B)). The burden is on the party 

seeking the imputation to prove that the 

other parent was voluntarily foregoing more 

gainful employment, either by producing 

evidence of a higher-paying former job or by 

showing that more lucrative work was 

currently available. See Brody [v. Brody], 

16 Va. App. [647, 651, 432 S.E.2d 20, 22 

(1993)]; Hur v. Virginia Dept. of Social 

Services Div. of Child Support Enforcement 

ex rel. Klopp, 13 Va. App. 54, 61, 409 

S.E.2d 454, 459 (1991); see also Antonelli 

v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 

117, 119 (1991). The evidence must be 

sufficient to "enable the trial judge 

reasonably to project what amount could be 

anticipated." Hur, 13 Va. App. at 61, 409 

S.E.2d at 459. 

 The trial court's decision here, refusing to impute income 

to mother, will be upheld on appeal unless "'plainly wrong or 

unsupported by the evidence.'" Sargent, 20 Va. App. at 703, 460 

S.E.2d at 600 (quoting Calvert v. Calvert, 18 Va. App. 781, 784, 

447 S.E.2d 875, 876 (1994)). 

 In the dialogue, father's counsel indicated that mother's 

annual salary was $74,823.32, or $6,235.28 a month, and that 

prior to the hearing, mother worked thirty-two hours per week. 

If she did not work on Tuesdays, her workweek would be 

twenty-four hours. Mother's counsel responded that her income 

would not be "diminished" due to a better union contract, 

"because she works weekends, and because she works late nights, 

she gets a better deal. Essentially, she works fewer hours and 

receives money." Mother's counsel further represented that she 

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would be able to earn the salary "she had before, without 

working Tuesdays." This proffer was not opposed by father. 

 The trial court instructed both counsel to prepare an order 

for change of child support payments, "based upon the change of 

the salary and day care elements." After a recess, counsel 

returned with a figure of $533 per month, but they did not 

submit any worksheets or explanation of the elements included in 

the calculation of that number.9 We do not know if the $533 

figure reflected a change in income or in day care, nor do we 

know the amount of change attributable to each. The informality 

of the procedure leaves a woefully poor record. While father's 

counsel continued to argue that income should be imputed to 

mother, and the trial court indicated it would reconsider the 

issue, the final order used the $533 figure. 

 From the above, it is not clear that wife has actually 

suffered a loss of income. We, therefore, affirm the trial 

court's decision not to impute income to mother. Father had the 

burden to prove imputation was appropriate, see Niemiec, 27 Va. 

App. at 451, 499 S.E.2d at 579, and he failed to do so. 

 Finally, father contends the trial court erred in assessing 

attorney's fees against him as his motion was meritorious. He 

argues the court failed to consider his ability to pay versus 

 9

 The record does indicate this figure was reached after 

some negotiation between the parties. 

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mother's ability to pay. He also argues the fees were 

unreasonable. 

 "An award of attorney's fees is a matter submitted to the 

trial court's sound discretion and is reviewable on appeal only 

for an abuse of discretion." Graves v. Graves, 4 Va. App. 326, 

333, 357 S.E.2d 554, 558 (1987). The "key to a proper award of 

counsel fees" is "reasonableness under all of the 

circumstances." McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 

S.E.2d 159, 162 (1985). To promote this determination, 

"evidence in the record [must] explain or justify the amount of 

the award." Westbrook v. Westbrook, 5 Va. App. 446, 458, 364 

S.E.2d 523, 530 (1988). "Where the trial judge finds that a fee 

award is justified, evidence of time expended and services 

rendered is a proper basis upon which to fix an award." Id.

 Although no affidavit was presented to the trial court, 

mother's counsel represented to the court without objection that 

her hourly fee was $200. She then set forth the time expended 

for two court appearances, telephone calls, drafting documents, 

etc., for a bill totaling $780. Further, the trial court found 

father's motion for modification was not meritorious. Under 

these circumstances, we hold that the award of counsel fees was 

reasonable. 

B. Medical Expenses 

 Father contends he should not have to reimburse mother for 

the children's medical bills because she did not notify him of 

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their appointments. Essentially, he maintains notification is a 

condition of reimbursement. The trial court disagreed, stating, 

"I do not find . . . the language of the order or the agreement 

to result in a default on the right of . . . reimbursement for 

the expenses incurred for these medical and dental visits." We 

agree with the trial court. 

 "It is the firmly established law of this Commonwealth that 

a trial court speaks only through its written orders." Davis v. 

Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996). 

Additionally, "trial courts have the authority to interpret 

their own orders." Fredericksburg Constr. Co. v. J.W. Wyne 

Excavating, Inc., 260 Va. 137, 144, 530 S.E.2d 148, 152 (2000). 

See also Rusty's Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 

129, 510 S.E.2d 255, 260 (1999) (en banc). "Furthermore, when 

construing a lower court's order, a reviewing court should give 

deference to the interpretation adopted by the lower court." 

Id.

 In this case, no notification language is contained in the 

final decree's provisions for health care coverage and 

reimbursement. Instead, notification language is found in the 

consent decree, under the title, "Health." This "Health" 

provision requires the parties consult one another as to "major 

health decisions" and requires notification of illnesses and 

medical appointments. Similarly, under the provisions entitled, 

"Education," the parties are required to share information 

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concerning the children's education, grades, and activities. In 

the context of the consent decree, the trial court ordered the 

parties to cooperate and share information concerning the 

children's welfare and best interests. 

 Based on this record, we cannot say the trial court abused 

its discretion in its interpretation of its own decree. We, 

therefore, hold the notification requirement was not a condition 

precedent for father's obligation to reimburse mother for the 

medical expenses. 

 Father also argues he should be released from any 

obligation to pay some of these medical bills because the 

appointments were not with doctors listed by his insurance 

provider. However, the trial court accepted mother's explanation 

of why she took the children to these particular health care 

providers, and we will not disturb that finding. 

 "'[T]he finding of the judge, upon the credibility of the 

witnesses and the weight to be given their evidence, stands on 

the same footing as the verdict of a jury, and unless that 

finding is plainly wrong, or without evidence to support it, it 

cannot be disturbed.'" Yates v. Commonwealth, 4 Va. App. 140, 

143, 355 S.E.2d 14, 16 (1987) (quoting Lane v. Commonwealth, 184 

Va. 603, 611, 35 S.E.2d 749, 753 (1945)). We cannot say the 

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trial court was "plainly wrong" in accepting mother's 

explanations.10

 Father also argues mother should not be reimbursed because 

she did not "timely" send the medical bills to him. However, he 

does not argue that he suffered any prejudice from the untimely 

receipt of the bills. Nothing before the trial court indicated 

father's insurance carrier would decline to pay the bills of 

providers covered by the plan if the bills were not submitted in 

a "timely" fashion. 

 Father also asks that we apply the doctrine of "unclean 

hands" to this case. He argues mother's actions were improper 

and, therefore, she should not benefit from her "wrongful" 

behavior. Assuming, without deciding, that the unclean hands 

doctrine applies to these circumstances, we do not conclude that 

mother lacked "clean hands." 

 "[H]e who asks equity must do equity, and he who comes into 

equity must come with clean hands." Walker v. Henderson, 151 

Va. 913, 927-28, 145 S.E. 311, 315 (1928). 

The withholding of equitable relief to 

punish a wrongdoer has been approved in 

other cases involving issues of family law 

 10 While we do not condone a trial court accepting testimony 

from unsworn witnesses, father did not object to this procedure. 

As the appellant in this case, he had the responsibility to 

protect the parts of the record that would support his arguments 

on appeal. See Davis v. Commonwealth, 35 Va. App. 533, 537, 546 

S.E.2d 252, 254 (2001) ("[Appellant] has the burden to preserve 

an adequate record on appeal to allow us to consider the 

propriety of the trial court's actions."). 

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but not where the rights of children were 

prejudiced by the result. See Davis v. 

Davis, 206 Va. 381, 387, 143 S.E.2d 835, 839 

(1965); Gloth v. Gloth, 154 Va. 511, 555, 

153 S.E. 879, 893 (1930). 

Brown v. Kittle, 225 Va. 451, 457, 303 S.E.2d 864, 867 (1983). 

 The trial court accepted mother's explanation for her 

behavior. We will not disturb this factual finding. See Yates, 

4 Va. App. at 143, 355 S.E.2d at 16. Because the court found 

mother was not a "wrongdoer," implicitly, she has "clean hands." 

 Father also argues he should not be responsible for three 

of the bills, totaling $50, since they are not "extraordinary" 

bills under Code § 20-108.2(D),11 the child support guidelines 

statute. The trial court rejected this argument, interpreting 

its own order as including such expenses. The court opined that 

the word "extraordinary" in the order referred to "charges that 

are not insured, and I think they're properly recoverable." 

 Again, we defer to the trial court's interpretation of its 

own order. See Fredericksburg Constr. Co., 260 Va. at 144, 530 

 11 Code § 20-108.2(D) states: 

Any extraordinary medical and dental 

expenses for treatment of the child or 

children shall be added to the basic child 

support obligation. For purposes of this 

section, extraordinary medical and dental 

expenses are uninsured expenses in excess of 

$100 for a single illness or condition and 

shall include but not be limited to 

eyeglasses, prescription medication, 

prostheses, and mental health services 

whether provided by a social worker, 

psychologist, psychiatrist, or counselor. 

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S.E.2d at 152. We cannot say the trial court abused its 

discretion in that interpretation. 

 Lastly, we address father's contention that the trial court 

erred in awarding counsel fees and costs to mother. Father 

argues the trial court had no authority to award fees and costs. 

Essentially, father maintains that counsel fees can only be 

awarded pendente lite in divorce actions, see Code § 20-103(A), 

in a decree in which a divorce is "instituted or pending," see

Code § 20-79(B), or when a party is found in contempt, see

Wilson v. Collins, 27 Va. App. 411, 426, 499 S.E.2d 560, 567 

(1998). Father maintains that here, given the divorce is 

concluded, he must be found in contempt before the court can 

assess attorney's fees against him. We disagree. 

 Father cites Carswell v. Masterson, 224 Va. 329, 295 S.E.2d 

899 (1982), as limiting awards of attorney's fees to cases where 

contempt is found. However, Carswell involved a failure of the 

trial court to award fees after finding a party in contempt. 

Id. at 330, 295 S.E.2d at 900. The Supreme Court explained that 

trial courts may award attorney's fees in contempt proceedings 

brought to enforce support and divorce decrees and remanded the 

case "for such further proceedings as may be indicated." Id. at 

332, 295 S.E.2d at 901. The Court did not express an opinion as 

to awards in other contexts. 

 The more relevant case is Sullivan v. Sullivan, 33 Va. App. 

743, 536 S.E.2d 925 (2000). In Sullivan, husband agreed in a 

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property settlement to maintain life insurance, naming wife and 

children as beneficiaries; the settlement agreement was 

incorporated into a court order. Id. at 746, 536 S.E.2d at 927. 

Wife filed a show cause because husband failed to maintain the 

policy. Id. The trial court ordered husband to either purchase 

the required life insurance policy or post a bond to insure 

performance of the obligation; the court also awarded attorney's 

fees to wife, without finding husband in contempt of court. Id.

at 747, 536 S.E.2d at 927. On appeal, husband contended, since 

he was not specifically found in contempt, the trial court erred 

in awarding attorney's fees. Id. at 752-53, 536 S.E.2d at 930. 

This Court upheld the award. Id. at 753, 536 S.E.2d at 930. 

 As explained in Sullivan: 

Judges presiding over contempt proceedings 

in divorce suits have the discretion to 

award counsel fees. Carswell v. Masterson, 

224 Va. 329, 332, 295 S.E.2d 899, 901 

(1982). The trial judge's failure to use 

the word "contempt" in his order does not 

alter the effect of his ruling. As in 

Carswell, the wife had to resort to legal 

proceedings to secure compliance with a 

valid court order. In awarding legal fees, 

the trial judge found that the husband 

failed to perform a legal duty. 

Furthermore, simply because the trial judge 

ordered the husband to comply with the life 

insurance provision, the alleged 

impossibility of securing such a policy does 

not provide a basis for establishing an 

abuse of discretion by the trial judge in 

awarding attorney's fees. The husband's 

reliance on Wilson v. Collins, 27 Va. App. 

411, 499 S.E.2d 560 (1998), does not aid his 

argument because in that case we held that 

the trial judge had incorrectly found a 

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party in contempt and therefore could not 

order that party to pay attorney's fees. 

Id.

 The case before us is very similar to Sullivan. Mother, for 

example, "had to resort to legal proceedings to secure compliance 

with a valid court order," i.e., the order for father to pay 

fifty percent of the children's medical expenses. Id. Here 

also, the trial court found father failed to "perform a legal 

duty." Id.

 We further note that mother's counsel submitted an affidavit 

to the trial court, showing her time expended on this case. We, 

therefore, conclude the trial court did not abuse its discretion 

in awarding attorney's fees. 

III. CONCLUSION 

 For the reasons stated above, we affirm the trial court's 

rulings in these appeals. 

Affirmed.

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