COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Humphreys 

MURRAY L. STEINBERG 

v. Record No. 0525-00-2 

 

KATHERINE T. STEINBERG, N/K/A 

 KATHERINE T. SHUMAKER MEMORANDUM OPINION* 

 PER CURIAM 

MURRAY L. STEINBERG AUGUST 8, 2000 

 

v. Record No. 0602-00-2 

 

KATHERINE T. STEINBERG, N/K/A 

 KATHERINE T. SHUMAKER 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 (Murray L. Steinberg, pro se, on briefs). 

 (Murray J. Janus; Bremner, Janus, Cook & 

Marcus, on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Murray L. Steinberg appeals the decision of the circuit court 

denying his motions to change venue and for modification of 

custody, visitation and child support. Steinberg raises twelve 

issues on appeal, which we address seriatim below. Upon reviewing 

the record and briefs of the parties, we conclude that these 

appeals are without merit. Accordingly, we summarily affirm the 

decision of the trial court. See Rule 5A:27. 
Background

 These consolidated cases are the latest in an extensive 

series of appeals filed by Steinberg arising from his divorce from 

Katherine T. Shumaker and the resulting custody, visitation and 

support issues.1 The current dispute arose when Steinberg filed a 

motion to reinstate and a motion seeking a change of venue on 

April 14, 1999. In an opinion letter, the trial court indicated 

that it would deny the motion to change venue. The trial court 

entered an order incorporating its opinion letter on March 13, 

2000. On May 10, 1999, Steinberg filed a second motion to 

reinstate and a motion for a modification of support, custody and 

visitation. By order entered August 2, 1999, the trial court 

denied the motion for modification. On the same day, Steinberg 

filed a motion to vacate, arguing that there was no compelling 

state interest and that the court lacked subject matter 

jurisdiction. Steinberg also filed a subpoena duces tecum, 

seeking records related to the legal fees the trial court ordered 

him to pay Shumaker, a motion seeking verification of child care 

 1 Steinberg v. Steinberg, Nos. 1839-91-2, 2036-91-2, 

2172-91-2 (Va. Ct. App. Feb. 9, 1993); Steinberg v. Steinberg, 

Nos. 0534-92-2, 1678-92-2 (Va. Ct. App. June 15, 1993); 

Steinberg v. Steinberg, No. 0971-92-2 (Va. Ct. App. Dec. 7, 

1993); Steinberg v. Steinberg, 21 Va. App. 42, 461 S.E.2d 421 

(1995) (Record No. 2111-93-2); Steinberg v. Steinberg, No. 

0874-95-2 (Va. Ct. App. Mar. 21, 1996); Steinberg v. Steinberg, 

No. 1064-95-2 (Va. Ct. App. Jan. 30, 1996); Steinberg v. 

Steinberg, No. 2315-95-2 (Va. Ct. App. June 18, 1996); and 

Steinberg v. Steinberg, No. 2557-96-2 (Va. Ct. App. July 15, 

1997). 

- 2 -
costs, and a motion for mediation. The trial court granted 

Shumaker's motion to quash the subpoena regarding her attorney's 

records, granted her motion to quash a subsequent subpoena duces

tecum directed to Shumaker's employer, and denied Steinberg's 

motions to dismiss for lack of jurisdiction, to reconsider, and to 

set aside all previous orders for lack of compelling state 

interest. On March 13, 2000, the trial court entered an 

additional order denying Steinberg's motions to vacate all 

previous orders for lack of subject matter jurisdiction, lack of 

compelling state interest and alleged fraud on the court by 

Shumaker and her counsel. 

 By notice filed January 6, 2000, Shumaker indicated she would 

seek to have Steinberg found in contempt for his failure to pay 

$405 as his share of the child's 1997 orthodontist expenses. 

 The trial court held an ore tenus hearing on January 18, 

2000, at which both parties presented evidence. The trial court 

subsequently denied Steinberg's motion to modify visitation, 

custody and support by order entered February 8, 2000. While 

Steinberg filed a motion seeking a stay of execution on the ground 

that he had been found to be indigent in the past, the trial court 

denied the requested stay of execution.2 Steinberg appealed. 

 2

 On July 13, 2000, Steinberg filed with this Court a motion 

seeking a stay of execution of the trial court's order requiring 

him to pay attorney's fees and costs. We deny that motion. 

- 3 -
Analysis

I. Lack of a Hearing

 Steinberg contends that the trial court erred by failing to 

hold an evidentiary hearing prior to ruling on several of his 

motions, including the motions to change venue and challenging 

subject matter jurisdiction. We find no error. 

 Whether to receive evidence is a matter left to the 

discretion of the trial court, whose decision will not be reversed 

in the absence of an abuse of that discretion. The motions were 

decided by a judge who was familiar with the parties and the 

issues, and who had conducted numerous hearings throughout the 

extended litigation. Steinberg's allegations of fraud and lack of 

subject matter jurisdiction were repetitious and duplicative of 

previous motions heard and rejected by the trial court. His 

challenge to the lack of compelling state interest was based upon 

questions of law, not fact. His motion to change venue was based 

upon the single factual allegation of the parties' relocation. In 

light of Shumaker's objection to the motion, and the court's 

extensive experience with the parties, we cannot say that the 

trial court's decision to deny that motion without receiving 

evidence was an abuse of discretion. We therefore find no abuse 

of discretion in the trial court's decision not to hold 

evidentiary hearings on these motions. 

- 4 -
II. Motion to Change Venue

 Steinberg filed a motion to change venue based upon the fact 

that the parties and the child now resided in Hanover County. 

Steinberg alleged that it was therefore in the child's best 

interest for this matter to be transferred to Hanover County. The 

trial court denied this motion on the ground that both parties did 

not agree to the change of venue. We find no error. 

 The parties have a lengthy history of litigation in the 

courts of Henrico County. While both parents now reside in 

Hanover County, that fact alone did not require the trial court to 

grant Steinberg's motion to change venue. "Whether to grant such 

a motion is within the discretion of the trial court, and the 

trial court's denial of the motion will not be reversed absent an 

abuse of that discretion." Virginia Elec. & Power Co. v. Dungee, 

258 Va. 235, 245, 520 S.E.2d 164, 170 (1999). Nothing in the 

record supports Steinberg's bare contention that a transfer of 

venue was in the child's best interests. We find no abuse of 

discretion in the trial court's decision to retain the matter in 

the Circuit Court of Henrico County. 

III. Ex parte Communication

 Steinberg further contends that the trial judge engaged in an 

improper ex parte communication with Shumaker. In his opinion 

letter denying Steinberg's motion to change venue, the trial judge 

stated: 

- 5 -
 I have received your motion and order 

with regard to a change of venue. It is my 

practice not to order a transfer unless both 

parties agree. 

 I understand that Ms. Katherine 

Steinberg objects to the change. Therefore 

I will not order a change in venue. 

Steinberg presented no evidence that the trial judge had any 

direct communication with Shumaker or her counsel. Moreover, 

the bar against ex parte communication "arises only when 'an ex

parte communication relates to some aspect of the [trial].'" 

Ellis v. Commonwealth, 227 Va. 419, 423, 317 S.E.2d 479, 481 

(1984) (holding that the trial judge did not participate in an 

improper ex parte communication when he interviewed a juror in 

chambers without notifying the defendant). Here, assuming 

arguendo that the record proved that the trial judge spoke with 

Shumaker or her counsel, the challenged communication was at 

most administrative in nature, relating solely to whether the 

motion to change venue was opposed. Steinberg has failed to 

demonstrate any improper ex parte communication between the 

trial judge and Shumaker. 

IV. Lack of Subject Matter Jurisdiction

 The question of the trial court's jurisdiction to hear this 

case has been raised and addressed before. See, e.g., Steinberg 

v. Steinberg, No. 2557-96-2 (Va. Ct. App. July 15, 1997). We 

therefore do not address this question further. 

- 6 -
V. Lack of Compelling State Interest

 Steinberg contends "[n]o court has ever determined that the 

state has a compelling interest in the instant case," and argues 

that the trial court erred by acting without a compelling state 

interest. This contention lacks merit. The parties were 

properly before the circuit court, which had jurisdiction to 

resolve issues of child support, custody and visitation. See, 

e.g., Code § 20-107.2. The case cited by Steinberg, Williams v. 

Williams, 256 Va. 19, 501 S.E.2d 417 (1998), which arose in the 

context of grandparents seeking visitation against the wishes of 

the parents, is inapposite to the facts in this case and 

inapplicable to the analysis of any pending issues. 

VI. Imputation of Income

 As the party seeking to modify child support, Steinberg bore 

the burden to prove that there had been a material change in 

circumstances warranting a reduction in child support. "Once a 

child support award has been entered, only a showing of a material 

change in circumstances will justify modification of the support 

award. The moving party has the burden of proving a material 

change by a preponderance of the evidence." Crabtree v. Crabtree, 

17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993). The trial court 

imputed $30,000 in income to Steinberg in its 1993 order of 

support. Because the trial court previously had ruled on the 

question of imputation of income in the context of child support, 

the burden to demonstrate a change in circumstances underlying the 

- 7 -
court's existing decision, including evidence that imputation of 

income was no longer appropriate, fell to Steinberg. 

 Steinberg based his motion on a reduction in his income. He 

denied that he had more than $1,000 in annual income in 1999, 

although he admitted that he and his new wife moved into a new 

home which she purchased for approximately $270,000; that they 

regularly took the child on trips to Florida; that their vacations 

and "educational, fun trips" with the child included trips to 

Disney World, MGM, Epcot, Universal Studios, Mexico, San 

Francisco, Los Angeles, Hollywood, New York City, Daytona Beach 

and Alexander Springs; and that they took the child to baseball 

games and amusement parks. The trial court did not err when it 

required Steinberg to bear the burden of presenting evidence why 

the trial court should no longer impute income to him. 

VII. Failing to Recalculate Child Support

 Steinberg contends that the trial court failed to consider 

all current evidence when ruling on his motion to modify child 

support. This contention is without merit. The inquiry into 

the modification of child support focused on Steinberg's alleged 

reduction in income, the sole ground on which he based his 

motion. The trial court was not required to examine other 

statutory factors that were not at issue. The burden of proof 

remained on Steinberg as the party seeking to modify an existing 

child support order. The trial court found that Steinberg 

- 8 -
failed to prove a material change in circumstances warranting a 

modification, and its decision is supported by evidence. 

VIII. Failing to Follow Statutory Requirements

 Steinberg contends that the trial court failed to consider 

all the statutory factors set out in Code § 20-124.3 when it 

ruled that he failed to prove a material change in circumstances 

warranted a change in custody. We disagree. 

 As the party seeking to modify the existing custody order, 

Steinberg bore the burden to prove "'(1) whether there has been 

a [material] change in circumstances since the most recent 

custody award; and (2) whether a change in custody would be in 

the best interests of the child.'" Wilson v. Wilson, 18 Va. 

App. 193, 195, 442 S.E.2d 694, 696 (1994) (quoting Visikides v. 

Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986)). "In matters 

concerning custody and visitation, the welfare and best 

interests of the child are the 'primary, paramount, and 

controlling considerations.'" Kogon v. Ulerick, 12 Va. App. 

595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). The 

trial court is vested with broad discretion to make the 

decisions necessary to safeguard and promote the child's best 

interests, and its decision will not be set aside unless plainly 

wrong or without evidence to support it. See Farley v. Farley, 

9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990). 

 Steinberg bore the burden to present evidence to the trial 

court demonstrating that a material change in circumstances 

- 9 -
warranted a change in custody and that the change was in the 

child's best interests. The trial court's order specifically 

states that it considered all the statutory factors. The trial 

court found that the child continues to do well under the 

current custody and visitation arrangement. Evidence supports 

the trial court's decision. We find no error in the trial 

court's decision to deny Steinberg's motion to change custody. 

IX. Failing to Communicate the Basis of the Decision

 Steinberg contends that the trial court failed to 

communicate the basis of its decision denying his motion to 

modify custody and visitation. This contention is not supported 

by the record. The trial court expressed the basis for its 

decision in its opinion letter to the parties dated January 24, 

2000. 

X. Discovery Violations

 Steinberg contends that the trial court allowed Shumaker 

access to irrelevant materials, including the costs and dates of 

his trips with the child, but denied him access to information 

relevant to his pending motions. Decisions relating to 

discovery generally rest "within the trial court's discretion 

and will be reversed only if the action taken was improvident 

and affected substantial rights." Rakes v. Fulcher, 210 Va. 

542, 546, 172 S.E.2d 751, 755 (1970). There must be 

demonstrable prejudice for a reviewing court to find an abuse of 

discretion. See id.

- 10 -
 As the party seeking a decrease in his child support 

payment based upon reduced income, Steinberg placed his income, 

assets, and other financial resources as an issue before the 

court. We find no error in the trial court's order requiring 

Steinberg to disclose information relating to certain 

expenditures, housing, loans, and income. 

 Our review of the challenged discovery decisions by the 

trial court demonstrates that the trial court granted Shumaker's 

motions to quash Steinberg's requests for information that was 

not relevant to his petition for a modification. Because 

Steinberg's petition was based upon changes in his 

circumstances, information concerning Shumaker's income and 

expenses were not relevant. 

 The trial court denied Steinberg's motion to compel 

production of records of Shumaker's counsel, including fee 

arrangements with other clients. Steinberg sought the records 

to support his repeated allegations of fraud by counsel. 

"Typically, the attorney-client privilege does not extend to 

billing records and expense reports." Chaudhry v. Gallerizzo, 

174 F.3d 394, 402 (4th Cir. 1999). "'However, correspondence, 

bills, ledgers, statements, and time records which also reveal 

the motive of the client in seeking representation, litigation 

strategy, or the specific nature of the services provided, such 

as researching particular areas of law, fall within the 

privilege.'" Id. (quoting Clarke v. American Commerce National 

- 11 -
Bank, 974 F.2d 127, 129 (9th Cir. 1992)). The trial court found 

no evidence to support Steinberg's allegations of fraud in the 

past. Evidence gathered at the January 18, 2000 hearing also 

refuted Steinberg's claim that Shumaker and her counsel were 

perpetrating a fraud. We therefore find no abuse of discretion 

in the denial of this motion to compel. 

 Steinberg does not allege any prejudice resulted from the 

trial court's denial of his interrogatories relating to 

Shumaker's activities with the child or her propensity to 

support his relationship. Steinberg obtained answers through 

requests for admissions and cross-examination of Shumaker during 

the hearing. 

 Therefore, in sum, we find no abuse of discretion on the 

part of the trial court in its handling of the parties' 

discovery. 

XI. Ruling on Orthodontist Expenses and Failing to Rule on

Other Motions

 

 Steinberg contends that the trial court erred when it 

ordered him to pay $405 as his share of a 1997 orthodontic bill 

because there was no motion attached to Shumaker's notice that 

she would move for payment of the outstanding debt at the 

scheduled hearing. Shumaker testified that she provided 

Steinberg with a copy of the bill previously and that a copy was 

sent to Steinberg with the notice. Steinberg had an ongoing 

obligation to pay 36% of the cost of extraordinary medical and 

- 12 -
dental expenses. We find no error in the trial court's order 

requiring Steinberg to pay an amount previously due and owing. 

 While Steinberg also lists a number of motions which he 

claims were never ruled on, our review of the record 

demonstrates that the trial court responded to all timely-filed 

motions. Moreover, this contention is frivolous. Steinberg 

argues that the trial court failed to respond to his Motion for 

Modification of Child Support, apparently refusing to view the 

trial court's order of February 8, 2000, denying "Petitioner's 

Motion to reduce child support" as a dispositive ruling on his 

motion. The trial court's failure, if any, to rule on any of 

Steinberg's duplicate and repetitive filings seeking multiple 

reconsiderations of the same issues, is not reversible error. 

XII. Attorney's Fees

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

sound discretion of the trial court and is reviewable on appeal 

only for an abuse of discretion. See 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 the circumstances. 

See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 

(1985). "'Although evidence of time expended by counsel and the 

charges made to the client is the preferred basis upon which a 

trial judge can formulate a reasonable award, it is not the only 

basis.'" Davis v. Davis, 8 Va. App. 12, 17, 377 S.E.2d 640, 643 

(1989) (quoting McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 

- 13 -
S.E.2d 159, 162 (1985)). While Steinberg contends that Shumaker 

is responsible for this litigation, the record does not support 

that contention. Moreover, evidence supports the amount of the 

trial court's award. Therefore, we cannot say that the award was 

unreasonable or that the trial judge abused his discretion in 

making the award. 

 In addition, Shumaker moves this Court for attorney's fees 

and costs related to these appeals. We grant the motion, and 

remand the matter to the trial court with instructions to 

determine and enter an appropriate order. 

 Accordingly, the decision of the circuit court is summarily 

affirmed, and the matter is remanded to the trial court to enter 

an award relating to appellate attorney's fees. 

 Affirmed and remanded. 

- 14 -