COURT OF APPEALS OF VIRGINIA

Present: Judg es Frank, Clements and Senior Judge Bray

CARLO MARIA GAIONE MEMORANDUM OPINION * v. Record No. 13 15-02-2 PER CURIAM NOVEMBER 19, 2002 MARTHA FERGUSSON GAIONE

FROM THE CIRCUIT COUR T OF HENRICO COUNTY George F. Tidey, Judge (J.W. Harman, Jr.; Harman & Ha rman, P.C., on brief), for appellant. (Donald K. Butler; Mary Beth Joachim; Morano, Colan, Cook & Butler, on brief), for appellee.

On appeal, Carlo Ma ria Gaione (father) contends the trial court erred in awarding Martha Fergusson Gaione (mother) sole custody of their childr en. He also contends the trial court erred in using the sole cust ody guidelines to determine ch ild support. Upon reviewing the record and the parties' briefs, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27.

BACKGROUND On appeal, "we vi ew the evidence an d all reasonable inferences in th e light most favorable to the prevailing party below . . . . 'The bu rden is on the party who alleges reversible

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.error to show by the re cord that reversal is the remedy to which he is entitled.'" Lutes v. Alexander , 14 Va. App. 1075, 1077, 421 S.E.2d 857, 85 9 (1992) (citation omitted). The parties were married on May 5, 19 91, and they separated on April 26, 1999. Two children were bo rn of the marriage. On March 1, 2002, the trial cour t heard evidence regarding custody and suppor t. Melody Podraza, a li censed clinical social worker, testif ied that she has been the "treating ther apist" for both children since th e parties separa ted in 1999. Throughout therapy, mother demons trated "ongoing cons istent involvement," whereas father exhibited less consistency, in what Podraza described as "a pa ttern of involvement, and then he wasn't there, and involvement, and then he wasn't there." Mother testified that she wa s the primary ca regiver for the children, arranging activities, appointmen ts, transpor tation and childcare. Th e trial court ad mitted, without objection, a document prepared by mo ther entitled "Parenti ng History." In it, mother recorded events and/or situations fr om 1998 until 2002 involving father 's activities and his rela tionship with the family and the children. She used this document to demo nstrate father's lack of involv ement and/or po or judgment. At the conclusion of the hearing, the tr ial court de termined the parties "are at loggerheads on thre e issues that I don't believe would be conducive to joint cu stody." Those issues

- 2 -involved after school daycare, the presence of father's paramour, Kate, and a lack of communicat ion between fath er and mother. Before the March 1st hearin g adjourned, fa ther added: Your Honor, I'd like to mention a couple of things very briefly. First of all, if my computation's correct, the current visitation schedule would be about 114 days a year for Mr. Gaione, so that would throw us firmly into the shared custody guidelines. In a March 6, 2002 letter addressed to th e parties, the trial court advised, inter alia , "Based on the guid elines, chil d support will be $1,117.0 0 for three mont hs and $1,255.0 0 thereafter." In a March 11, 2002 mo tion to recons ider, father contended he spent "114 days per ye ar with the children " and that the trial court failed to use the shared custody guidelines or, in the alternative, to state a reason for deviat ing from that presumed amount. Father atta ched a child suppor t worksheet, which purportedly ca lculated father's child support obliga tion under shared custody figures at a lower figure. Without elab oration, the trial court in dicated in a one-sentence letter dated April 4, 2002, "I will stand by my original rulings on custody and child support." The final decree of divorce entered on May 9, 2002, contains the following statement: "Upon the evidence presented and it appearing to be in the best interests of the children, it is hereby ORDERED that sole custody of the children is awarded to [mother]." The trial court ordered father to pay child support

- 3 -in the amount of $1,117 per month from March 1, 2002 until May 31, 2002, and $1,255 per month thereafter.
CUSTODY On appeal, father contends the trial court "failed to consider all the factors when reaching its decision regarding custody." He argues that Code § 20-124.3 lists ten factors for the Court's consideration. The tenth refers to "other factors as the Court deems necessary and proper." In this case the Court makes no findings and makes no reference to these factors at all. After the March 1, 2002 ore tenus hearing, father moved the trial court to reconsider its oral decision to give wife sole custody of the children. In support, father contended there were only a few issues "on which the parties have not been able to reach agreement," and "there is no evidence that they would be unable to agree on other such issues in the future." Later, father filed the following objections to the final decree: For the reasons stated in the Motion to reconsider filed with the Court in the captioned matter, the defendant OBJECTS to those provisions [o]f the Final Decree which (1) grant sole legal custody of the children . . . to the [mother] and which (2) provide for child support to be paid in something other than the amount prescribed by the shared custody child support guidelines without any written justification for such deviation . . . . Rule 5A:18 requires that objections to a trial court's action or ruling be made with specificity in order to preserve

- 4 -an issue for appeal. See Campbell v. Commonwealth , 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) ( en banc ). A trial court must be alerted to the precise issue to which a party objects. See Neal v. Commonwealth , 15 Va. App. 416, 422-23, 425 S.E.2d 521, 525 (1992). The record fails to indicate that father made the argument in the trial court that he now raises on appeal. Moreover, because the trial court stated that its award of custody was based on the evidence presented and the best interests of the children, and because the evidence presented by mother and Podraza related to the enumerated factors in Code § 20-124.3 and supported the trial court's sole custody award to mother, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.
CHILD SUPPORT Code § 20-108.2(G) sets forth formulas to calculate the presumptively correct amount of support for three different factual scenarios: sole custody, split custody, and shared custody. "There shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award which would result from the application of the guidelines set out in § 20-108.2 is the correct amount of child support to be awarded." Code § 20-108.1.

- 5 -The final decree provided that father "shall have visitation with the minor children from Sundays at noon through Tuesday mornings when the children shall be returned to their mother or to school." In addition, father "shall have two nonconsecutive weeks of Summer visitation." Code § 20-108.2(G)(1) sets forth the procedure for calculating child support under the sole custody guidelines. Code § 20-108.2(G)(3)(a) sets forth the procedure for calculating child support in shared custody situations "[w]here a party has custody or visitation of a child or children for more than ninety days of the year." The record fails to contain the child support guidelines worksheet used to determine child support or indicate upon what basis (sole or shared custody) the trial court calculated the award. However, assuming it was prepared under the sole custody guideline, the evidence fails to show that the shared guidelines applied. For the purposes of [Code § 20-108.2], "day" means a period of twenty-four hours; however, where the parent who has the fewer number of overnight periods during the year has an overnight period with a child, but has physical custody of the shared child for less than twenty-four hours during such overnight period, there is a presumption that each parent shall be allocated one-half of a day of custody for that period. Code § 20-108.2(G)(3)(c). Under Ewing v. Ewing , 21 Va. App. 34, 37, 461 S.E.2d 417, 418 (1995) ( en banc ), a "day" is defined as

- 6 -"any continuous twenty-four hour period," and does not include periods when the child "'is attending school, is placed in non-parent day care, or placed with a third party.'" Although the children spend two nights a week with father in addition to fourteen days in the summer, because they have school on Mondays, father cannot be credited with any continuous twenty-four hour periods during the school year for those two overnight visits. Assuming the children attend school for nine months (thirty-seven weeks), the father would accrue seventy-four overnight visits. However, crediting each of those non-continuous twenty-four hour periods as a half-day, see Code § 20-108.2(G)(3)(c), would result in a total of thirty-seven days of custody during the academic year. Assuming there was no school or daycare in the summer, the most father could hope to accrue in the summer would be twenty-six days during thirteen weeks of summer vacation. Adding those days in the fifty-week period that father has custody (thirty-seven days + twenty-six days = sixty-three days) with the two-week summer vacation (fourteen days) would amount to a total of seventy-seven days, well below the ninety-day minimum required for application of the shared custody guidelines. Because the record demonstrates that father has less than ninety days of custody, as "day" is defined under the statute, the trial court did not err in calculating child support.

- 7 -Accordingly, we summarily affi rm the decision of the trial

court. See Rule 5A:27. Affirmed.

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