                                          COURT OF APPEALS OF VIRGINIA

            Present: Judges Petty, Alston and Senior Judge Felton
PUBLISHED

            Argued at Alexandria, Virginia

            KIRK T. MILAM
                                                                                OPINION BY
            v.     Record No. 0079-15-4                                      JUDGE WILLIAM G. PETTY
                                                                                NOVEMBER 17, 2015
            SHEILA J. MILAM

                            FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY
                                      Jonathan C. Thacher, Judge Designate

                           J. Burns Earle, III (Miller, Earle & Shanks, PLLC, on briefs), for
                           appellant.

                           Peter W. Buchbauer (Buchbauer & McGuire, P.C., on brief), for
                           appellee.

                   Kirk T. Milam (“father”) assigns nine errors to the circuit court’s award of increased

            child support. He assigns errors to the court’s factual finding of income for Sheila J. Milam

            (“mother”), to the court’s factual finding of his income, and to the court’s resulting determination

            of his child support obligation. Father argues, among other things, that the circuit court erred in

            increasing his child support obligation because his motion was entitled “Motion to Reduce Child

            Support” and mother did not expressly present a request for an increase. He additionally argues

            that the circuit court erred in including his adult son in mother’s household for purposes of

            calculating the applicable poverty level pursuant to Code § 20-108.2(G)(3)(d). He also argues

            that the court erred in failing to include in mother’s income the spousal support he was obligated

            to pay, though she did not receive it all. He argues further that the circuit court erred in setting

            the conditions for the suspension of his sentence after the court found him guilty of contempt.
For the reasons set forth below, we affirm in part and reverse and vacate in part the circuit

court’s ruling.

                                        I. BACKGROUND

       On appeal, we view the evidence “‘in the light most favorable to the prevailing party

below and its evidence is afforded all reasonable inferences fairly deducible therefrom.’” Bristol

Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 40, 764 S.E.2d 284, 287 (2014) (quoting Logan

v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991)). In

this case, mother prevailed below.

       Mother and father were married in 1994 and had five children together. At the time of

the modified final divorce decree on April 9, 2012, three of the children were minors. One son

was over eighteen years old but had not yet graduated from high school. These four children

continued to live with mother during the period relevant to this appeal.

       On May 3, 2012, father appealed to this Court the final divorce decree. On June 29,

2012, after his son graduated from high school, father filed “Defendant’s Motion to Reduce

Child Support and Spousal Support.” This Court issued its opinion regarding the final divorce

decree on April 30, 2013, affirming in part, reversing in part, and remanding. Milam v. Milam,

No. 0837-12-4, 2013 Va. App. LEXIS 134 (Va. Ct. App. Apr. 30, 2013). After oral argument by

the parties, the circuit court issued an order upon remand on July 25, 2014. In that order, the

court found that the shared custody guidelines were not presumptive under the circumstances of

this case because mother’s income was less than 150% of the federal poverty guidelines. The

court further found that use of the sole custody guidelines was more just and appropriate

pursuant to Code § 20-108.2(G)(3)(d). The court calculated the presumptive amount of $1169

for the four children father was obligated to support as of the date of the final divorce decree. It

then “rounded up” and established father’s child support obligation in the amount of $1170. This
                                                -2-
obligation had a commencement date of January 1, 2012. The order noted that father’s motion to

reduce child support would be addressed at a subsequent hearing.

       The hearing on father’s motion to reduce child support was held on September 24, 2014.

The court issued a letter opinion dated November 17, 2014, which was incorporated into the final

order dated December 23, 2014.1 In that letter opinion, the court calculated father’s income to be

$11,199 per month. The court rejected father’s argument that his 2012 income tax return

provided the best estimate of his current income. The court concluded it need not rely on the

2012 tax return because it “heard no evidence in support of [father’s] inability to file his 2013 tax

return.” In part, the court reasoned that father’s argument was rebutted by father’s “own

witness’s testimony.” Specifically, the court noted that father’s “Certified Public Accountant

testified that he only needed [father’s] bank statements in order to file [father’s] 2013 tax return.”

The record indicates, however, that the witness was called by mother, not father. Further,

contrary to the court’s description, the record indicates that the witness was female, rather than

male, and described herself as a tax preparer rather than a Certified Public Accountant.

Nonetheless, the court concluded from the witness’ testimony that “there was no reason why

[father’s] 2013 tax return could not be filed.” As a result, it rejected the argument that the court

should rely on the 2012 tax return, which was the most recently filed one.

       Instead, the court agreed with mother that the “most accurate estimation of [father’s]

income is reflected by his earnings thus far in 2014.” The earnings were evidenced by father’s

bank deposits and by reimbursement invoices for father’s court-appointed work from January to

July 2014.

       1
         The circuit court issued a suspending order on December 8, 2014 to retain jurisdiction
in the case.
                                               -3-
       Turning to mother’s income, the parties agreed that mother’s income from employment

alone was about $745 per month. The court found no merit in father’s argument that spousal

support owed by father should be included in mother’s income. The court reasoned that father

“ha[d] not paid [spousal support]” and had arrearages in the amount of $23,559.94. The court

therefore concluded that father’s support obligations should not be included in determining

mother’s actual income. Further, the court rejected father’s reasoning that mother must earn at

least $3000 per month because she testified that she tries to tithe to her church 10% of her

income, or $300. The court found “there [was] no evidence to support [father’s] argument that

[mother] actually tithes $300.00 per month.”

       Having found mother’s income to be $745 per month, the court also found that mother’s

income was below 150% of the federal poverty level for purposes of Code § 20-108.2(G)(3)(d).

In making that finding, the court included the parties’ adult son in mother’s household. The

parties agreed that the son lived with mother. The court rejected father’s argument that only

those children whom he is obligated to support under Code § 20-124.2 should be included in

household size. The court reasoned that the federal guidelines base the poverty level on number

of persons in the household, without regard to whether those persons are dependents. Although

it is undisputed that father has more than ninety days of visitation under the shared custody

guidelines, the court found that application of the shared custody guidelines would seriously

impair mother’s ability to maintain minimal adequate housing and other necessities for her

children. Accordingly, the court applied the sole custody guidelines. The court found that

father’s presumptive obligation was $1380 per month for the support of his three minor children.

The court awarded mother that amount.

       During the same hearing, the court also addressed mother’s rule to show cause based on

father’s failure to pay amounts already ordered by the court. The court found father in contempt
                                               -4-
and sentenced father to twelve months’ incarceration. The court suspended the sentence with

five enumerated conditions, including that father pay certain court-ordered payments and

arrearages according to the payment plan in the court’s December 23, 2014 order. The fifth

condition stated,

               5. Upon receipt of a sworn affidavit that any payments due are late
               or unpaid, or that Defendant failed to perform as set forth in these
               conditions, a [capias] shall issue and Defendant shall be remanded
               to the custody of the Sheriff of Rappahannock County, Virginia for
               service of his twelve month jail sentence.

       Father appealed the final order to this Court.

                                          II. ANALYSIS

       “‘We begin our analysis by recognizing the well-established principle that all trial court

rulings come to an appellate court with a presumption of correctness. Thus, we will not

invalidate a court’s decree unless the only reasonable interpretation thereof requires

invalidation.’” Stiles v. Stiles, 48 Va. App. 449, 453, 632 S.E.2d 607, 609 (2006) (quoting

Riggins v. O’Brien, 263 Va. 444, 448, 559 S.E.2d 673, 675-76 (2002)). “The court’s paramount

concern when awarding child support is the best interest of the children.” Id. at 456, 632 S.E.2d

at 611. “The court must consider the basic needs of the child, the parent’s ability to pay, and to

the extent that the parent is able to provide more than the basic necessities of life, the degree to

which the child should reasonably share in his or her parents’ prosperity.” Conway v. Conway,

10 Va. App. 653, 658, 395 S.E.2d 464, 466-67 (1990).

            A. AN INCREASE IN CHILD SUPPORT MAY ARISE FROM APPLICATION OF
         THE STATUTORY GUIDELINES EVEN IF A PARENT REQUESTS A REDUCTION ONLY

       Father argues that the circuit court erred as a matter of law by increasing his child support

obligation even though the only motion before the court was entitled “Motion to Reduce Child

Support.” Father argues, “Fundamental rules of pleading provide that no court can base its

                                                 -5-
judgment or decree upon a right which has not been pleaded and claimed.” Fadness v. Fadness,

52 Va. App. 833, 843, 667 S.E.2d 857, 862 (2008). Father does not argue that the issue of child

support was improperly before the court. Rather, he argues that the court was barred from

increasing, instead of reducing, the child support amount because the only motion before the

court was to reduce support. We disagree.

       “The determination of child support is a matter of discretion for the circuit court, and

therefore we will not disturb its judgment on appeal unless plainly wrong or unsupported by the

evidence.” Oley v. Branch, 63 Va. App. 681, 699, 762 S.E.2d 790, 799 (2014).

               “An abuse of discretion . . . can occur in three principal ways:
               when a relevant factor that should have been given significant
               weight is not considered; when an irrelevant or improper factor is
               considered and given significant weight; and when all proper
               factors, and no improper ones, are considered, but the court, in
               weighing those factors, commits a clear error of judgment.”

Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va. 346, 352, 717 S.E.2d 134, 137

(2011) (alteration in original) (quoting Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th

Cir. 1984)). Thus, unless 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. See Wright v. Wright, 61 Va. App. 432, 454, 737 S.E.2d

519, 529-30 (2013) (discussing the standard of review in an equitable distribution case).

       Regardless of father’s choice of title for his motion, he requested a modification of child

support pursuant to Code § 20-108. Section 20-108 provides:

                       The court may, from time to time after decreeing as
               provided in § 20-107.2, on petition of either of the parents, or on
               its own motion . . . revise and alter such decree concerning the
               care, custody, and maintenance of the children and make a new
               decree concerning the same, as the circumstances of the parents
               and the benefit of the children may require.

                                               -6-
Evaluation of a motion to modify child support requires a multi-step analysis by the court. First,

the movant bears the burden of proving a material change of circumstance. Crabtree v. Crabtree,

17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993). “Once a child support award has been entered,

only a showing of a material change in circumstances will justify modification of the support

award.” Id. The court is then required to determine the presumptive child support amount by

using the statutory guidelines. Id. (“The statutory guidelines must be applied not only in the

initial child support hearing, but also in hearings to modify support.”); see Hiner v. Hadeed, 15

Va. App. 575, 579, 425 S.E.2d 811, 813 (1993) (“In a proceeding to increase, decrease, or

terminate child support under Code §§ 20-108 and 20-112, the trial judge must determine and

consider the presumptively correct award of child support according to the guidelines.”). Thus,

when a material change has been established, “the initial step to determine how to modify the

support award is to calculate the amount presumed to be correct according to the guidelines.”

Hiner, 15 Va. App. at 579, 425 S.E.2d at 813.

       Here, after a material change in circumstances was established,2 the court was required to

determine the presumptive support amount by following the statutory guidelines. This the court

did. Although father is now required to support three minor children, rather than four, his

increase in income resulted in a higher presumptive amount. Father argues that because he titled

his motion for modification a “Motion to Reduce Child Support” the court was precluded from

increasing the monthly support for father’s three minor children from $1170 to $1380.

       We disagree. Father relies on our decisions in Fadness and in Boyd v. Boyd, 2 Va. App.

16, 340 S.E.2d 578 (1986), for the proposition that an increase in child support cannot be granted

       2
        Father argued in his motion that his son’s graduation from high school was a material
change of circumstance. Neither father nor mother raises the issue of material change of
circumstance on appeal, and we therefore do not address it here.

                                                -7-
unless the non-moving parent specifically requests the increase. However, both these cases dealt

with spousal support. “Spousal support and child support represent two distinct remedies

directed at two very different interests: the spouse’s needs and the child’s needs.” Robbins v.

Robbins, 48 Va. App. 466, 484, 632 S.E.2d 615, 624 (2006). This can be seen, for example, in

Code § 20-108.1, which establishes a presumptively correct amount for child support. No such

counterpart exists for spousal support. Reece v. Reece, 22 Va. App. 368, 373 n.1, 470 S.E.2d

148, 151 n.1 (1996) (“Unlike spousal support cases, in cases involving the modification of child

support obligations, a trial court must calculate child support according to the presumptive

amounts outlined in Code § 20-108.2. Such presumptive amounts do not exist in cases involving

spousal support.”).

       “Statutory child support guidelines were designed ‘to assure that both the child’s needs

and the parent’s ability to pay are considered in determining the amount of support awards.’”

Oley, 63 Va. App. at 689, 762 S.E.2d at 793-94 (quoting Richardson v. Richardson, 12 Va. App.

18, 20, 401 S.E.2d 894, 895 (1991)). Child support awards are thus crafted for the child’s

benefit, not for the purpose of granting a parent relief. See Stiles, 48 Va. App. at 456, 632

S.E.2d at 611 (“The court’s paramount concern when awarding child support is the best interest

of the children.”). To this end, a court has authority to “make such further decree[s] as it shall

deem expedient concerning support of the minor children . . . .” Code § 20-124.2(C). Further,

the court has the authority to revise child support “on its own motion.” Code § 20-108. Thus,

courts may exercise the discretion to modify child support even in the absence of a request by

either parent.

       Nevertheless, the court’s discretion is not without bounds. It is well established that the

court must determine and consider the presumptively correct amount when considering

                                                -8-
modification of a parent’s child support obligation.3 Hiner, 15 Va. App. at 579, 425 S.E.2d at

813. It would be absurd to require the court to determine the presumptive amount and then

require it to shut its eyes to this amount because the motion requested a reduction only.

       Therefore, we hold that when a motion for modification of child support is before the

court, the court may increase or decrease the amount of child support pursuant to the statutory

guidelines, regardless of the wording of the motion seeking modification and regardless of

whether the other parent specifically requests such relief.

       Here, the circuit court had before it a motion to modify child support. The court followed

the statutory process of determining the presumptive amount and awarded that amount. Finding

that the circuit court did not abuse its discretion when considering and applying the statutory

process for modification of child support, we will not disturb its decision.

              B. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN APPLYING
                             THE FEDERAL POVERTY GUIDELINES

       Father argues that the circuit court erred as a matter of law by including one of the

parties’ adult children as part of mother’s household for purposes of determining whether Code

§ 20-108.2(G)(3)(d) applied.

       “The determination of child support is a matter of discretion for the circuit court, and

therefore we will not disturb its judgment on appeal unless plainly wrong or unsupported by the

evidence.” Oley, 63 Va. App. at 699-700, 762 S.E.2d at 799.

       Section 20-108.2(G)(3)(d) states:

               Any calculation under this subdivision [dealing with shared
               custody] shall not create or reduce a support obligation to an
               amount which seriously impairs the custodial parent’s ability to
               maintain minimal adequate housing and provide other basic

       3
         We previously reversed this case in part and remanded it to the circuit court precisely
because, among other things, the court had failed to make an express finding of the presumptive
child support amount. Milam, 2013 Va. App. LEXIS 134.
                                               -9-
               necessities for the child. If the gross income of either party is
               equal to or less than 150 percent of the federal poverty level
               promulgated by the U.S. Department of Health and Human
               Services from time to time, then the shared custody support
               calculated pursuant to this subsection shall not be the
               presumptively correct support and the court may consider whether
               the sole custody or the shared custody support is more just and
               appropriate.

The federal guidelines establish the poverty level based on the number of “persons in

family/household.” Annual Update of the HHS Poverty Guidelines, 79 Fed. Reg. 3953 (Jan. 22,

2014). The guidelines, however, “[do] not provide definitions of such terms as ‘income’ or

‘family’ because there is considerable variation in defining these terms among the different

programs that use the guidelines.” Id. at 3594. The federal guidelines explain that questions

such as

               “Should a particular person be counted as a member of the
               family/household?” [is] actually [a] question[] about how a
               specific program applies the poverty guidelines. All such
               questions about how a specific program applies the guidelines
               should be directed to the entity that administers or funds the
               program, since that entity has the responsibility for defining such
               terms as “income” or “family,” to the extent that these terms are
               not already defined for the program in legislation or regulations.

Id.4

          4
         Until 2004, the annual update included statistical definitions with a caution that “[t]here
is no universal administrative definition of ‘family,’ ‘family unit,’ or ‘household’ that is valid for
all programs that use the poverty guidelines. . . . The . . . statistical definitions . . . are made
available for illustrative purposes only; in other words, these statistical definitions are not
binding for administrative purposes.” Annual Update of the HHS Poverty Guidelines, 69 Fed.
Reg. 7336 (Feb. 13, 2004). The statistical definition given for “family” was “a group of two or
more persons related by birth, marriage, or adoption who live together . . . .” Id. The statistical
definition given for “household” was “all the persons who occupy a housing unit (house or
apartment), whether they are related to each other or not.” Id. Beginning in 2005, the annual
update omitted the statistical definitions altogether and directed users of the guidelines to
“consult the office or organization administering the program in question.” Annual Update of
the HHS Poverty Guidelines, 70 Fed. Reg. 8373 (Feb. 14, 2005).
                                                - 10 -
       For the purposes of Code § 20-108.2(G)(3)(d), the poverty guidelines must be construed

in a manner that achieves the General Assembly’s purpose. We may ascertain the General

Assembly’s purpose from the plain language of the statute. See Johnson v. Commonwealth, 53

Va. App. 608, 613, 674 S.E.2d 541, 543 (2009). The poverty guidelines are used to assure that a

calculation of shared-custody child support “[does] not create or reduce a support obligation to

an amount which seriously impairs the custodial parent’s ability to maintain minimal adequate

housing and provide other basic necessities for the child.” Code § 20-108.2(G)(3)(d). Further,

we ascertain from the statute that the General Assembly intended to give broad discretion to the

trial court in using the guidelines. “[T]he court may consider whether the sole custody or the

shared custody support is more just and appropriate,” id. (emphasis added), when a party’s

income is below 150% of the federal poverty guidelines. The court is not required to reduce or

adjust the presumptive shared custody amount. The General Assembly left this decision to the

discretion of the court.

       Here, the circuit court reasoned that the plain text of the federal poverty guidelines bases

the poverty level on the number of persons in a household regardless of whether the person is

classified a dependent of the party. Neither Code § 20-124.2 nor Code § 20-108.2(G)(3)(d)

defines “family” or “household.” It was therefore within the court’s discretion to use the

common meaning of the terms. See Joseph v. Commonwealth, 64 Va. App. 332, 338, 768

S.E.2d 256, 259 (2015). A household is “[a] family living together.” Household, Black’s Law

Dictionary (9th ed. 2009). A family is “[a] group consisting of parents and their children.”

Family, Black’s Law Dictionary (9th ed. 2009). Under these definitions, the parties’ adult child

is clearly a member of mother’s household.

       Nevertheless, father argues that only those children he is obligated to support pursuant to

Code § 20-124.2 should be included in the family/household size. He contends that counting his
                                              - 11 -
eighteen-year-old son in mother’s household “creat[es] a de facto obligation for [father] to

support a grown child whom he . . . otherwise has no legal obligation to support under

[§] 20-124.2.” We disagree. Determination of the poverty guideline amount for mother’s

household has nothing to do with the number of children father is obligated to support. Rather,

the determination of whether mother’s income falls below 150% of the poverty guideline is to

help ensure that her support obligations do not seriously impair her ability to maintain minimal

adequate housing and to provide other basic necessities for her minor children. We therefore

hold that under the facts of this case the court did not abuse its discretion in including the adult

child in mother’s household for purposes of Code § 20-108.2(G)(3)(d).

       Finding that mother’s income is below 150% of the poverty level for her household size

is not the end of the inquiry. Section 20-108.2(G)(3)(d) instructs that if a court finds the party’s

income to be below the threshold amount, it “may consider whether the sole custody or the

shared custody support is more just and appropriate.” (Emphasis added). The purpose of the

statute is to avoid creating “a support obligation [in] an amount which seriously impairs the

custodial parent’s ability to maintain minimal adequate housing and provide other basic

necessities for the child.” Id. Thus, although income-earning family members might be included

in the definition of household, the court must take into account such facts when determining

which guidelines are more just and appropriate.

       Here, the circuit court expressly found that application of the shared custody guidelines in

this case would seriously impair mother’s ability to maintain minimal adequate housing and to

provide other necessities for her children. Finding no abuse of discretion in the court’s

application of the sole custody guidelines, we will not disturb the decision.

                                                - 12 -
      C. OMISSION OF SPOUSAL SUPPORT FROM MOTHER’S INCOME WAS HARMLESS ERROR

       “The issue of [a party’s] income is a question of fact, and ‘the judgment of the [circuit]

court on questions of fact is entitled to great weight and will not be disturbed unless it is plainly

wrong or without evidence to support it.’” Patel v. Patel, 61 Va. App. 714, 727, 740 S.E.2d 35,

42 (2013) (second alteration in original) (quoting Smith v. Board of Supervisors, 201 Va. 87, 91,

109 S.E.2d 501, 505 (1959)).

       “For purposes of calculating child support, Code § 20-108.2(C) prescribes that a party’s

‘gross income’ . . . shall include . . . income from . . . spousal support.” Cranwell v. Cranwell, 59

Va. App. 155, 166, 717 S.E.2d 797, 802 (2011) (alterations in original). “Furthermore, it

provides that ‘[f]or purposes of this subsection: (i) spousal support received shall be included in

gross income and spousal support paid shall be deducted from gross income when paid pursuant

to an order or written agreement.’” Id. (quoting Code § 20-108.2(C)).

       Father argues the circuit court erred “in determining [mother’s] income, because the

[c]ourt completely omitted from its calculation [mother’s] income from the spousal support

payments she receives from [father].” In its letter opinion, the court found mother’s monthly

income to be $745 and rejected father’s argument that spousal support be included. The court

found that father “ha[d] not been paying his support obligations.” The court noted arrearages in

the amount of $23,559.94. Although father indisputably had arrearages at the time of the

hearing, the uncontested evidence shows that father made some spousal support payments to

mother during the twelve months preceding the hearing. To the extent that the court failed to

include these payments in mother’s gross income, it erred.

       Finding an error by the court does not end our inquiry, however. When this Court finds

that error has been committed by a trial court, we are required to consider whether the error was

harmless. “Code § 8.01-678 makes ‘harmless error review required in all cases.’” Tynes v.
                                                - 13 -
Commonwealth, 49 Va. App. 17, 23 n.3, 635 S.E.2d 688, 690 n.3 (2006) (quoting Ferguson v.

Commonwealth, 240 Va. ix, ix, 396 S.E.2d 675, 675 (1990)). Code § 8.01-678 provides:

               When it plainly appears from the record and the evidence given at
               the trial that the parties have had a fair trial on the merits and
               substantial justice has been reached, no judgment shall be arrested
               or reversed . . . (2) For any other defect, imperfection, or omission
               in the record, or for any error committed on the trial.

This statute “‘puts a limitation on the powers of this court to reverse the judgment of the trial

court—a limitation which we must consider on every application for an appeal and on the

hearing of every case submitted to our judgment.’” Kirby v. Commonwealth, 50 Va. App. 691,

699, 653 S.E.2d 600, 604 (2007) (quoting Walker v. Commonwealth, 144 Va. 648, 652, 131 S.E.

230, 231 (1926)).

       Here, the court found in its letter opinion that mother’s monthly income was $745 and

father’s monthly income was $11,199, with no adjustment for spousal support. Nevertheless, the

court used as a basis for its award the Child Support Guideline Worksheet included in the joint

appendix at page 546. This worksheet adds to mother’s income, and deducts from father’s

income, the full spousal support obligation of $2830 per month. Based on this worksheet, the

presumptive amount of father’s child support obligation was $1380. This is the amount the court

awarded. Therefore, any error in the court’s statements was harmless because the court actually

calculated the presumptive child support amount by adjusting for the spousal support obligation,

just as father argued the court should do.5

       5
          We note that if the court had calculated the child support obligation based on the
income figures without adjustment for spousal support, as the letter opinion indicated, then
father’s obligation would have been substantially higher. Mother, however, did not assign
cross-error to this calculation. We will therefore not address it here.
                                                - 14 -
                   D. THE COURT ERRED IN ITS SUSPENDED SENTENCE ORDER

       Father assigns error to the wording of the court’s order setting certain conditions as part

of a suspended sentence. The circuit court found father guilty of contempt pursuant to Code

§ 20-115 and sentenced him to a twelve-month jail sentence. The court suspended the sentence

upon five enumerated conditions requiring father to pay his support obligations, arrearages, and

delinquent attorney fee payments according to the schedule set forth in the December 23, 2014

order. The fifth condition stated:

               5. Upon receipt of a sworn affidavit that any payments due are late
               or unpaid, or that Defendant failed to perform as set forth in these
               conditions, a cap[ias] shall issue and Defendant shall be remanded
               to the custody of the Sheriff of Rappahannock County, Virginia for
               service of his twelve month jail sentence.

Father argues that if mother submits an affidavit, the procedure provided by the order “would

deprive father of his liberty without notice, or a hearing, or the opportunity to be represented by

counsel.”

       Where a “court has suspended the execution or imposition of sentence, the court may

revoke the suspension of sentence for any cause the court deems sufficient that occurred at any

time within the probation.” Code § 19.2-306(A). “Because a revocation proceeding is not ‘a

stage of criminal prosecution,’ a probationer accused of violating the conditions of probation ‘is

not entitled to the same due process protections afforded a defendant in a criminal prosecution.’”

Price v. Commonwealth, 51 Va. App. 443, 446, 658 S.E.2d 700, 702 (2008) (quoting Logan v.

Commonwealth, 50 Va. App. 518, 525, 651 S.E.2d 403, 406 (2007)). A probationer, however, is

entitled to certain minimum safeguards including notice and hearing. See id. at 446-47, 658

S.E.2d at 702 ( holding that minimum procedural safeguards include written notice of the

claimed violations). Further, “‘[s]ince the revocation of a suspension deprives the probationer of

his liberty, he is entitled to a judicial hearing thereon.’” Griffin v. Cunningham, 205 Va. 349,
                                               - 15 -
354, 136 S.E.2d 840, 844 (1964) (quoting Slayton v. Commonwealth, 185 Va. 357, 366, 38

S.E.2d 479, 483 (1946)).

       This minimal safeguard of a hearing is clearly inferred from Code § 19.2-306, which

establishes the procedure for revocation of suspended sentences. Section 19.2-306(B) instructs

that a “court may not conduct a hearing to revoke the suspension of sentence unless the court . . .

issues process to notify the accused or to compel his appearance before the court” within the

prescribed time limit. The statute also provides that “[i]f the court, after hearing, finds good

cause to believe that the defendant has violated the terms of suspension,” then the court may

revoke the suspension. Code § 19.2-306(C) (emphasis added). On the other hand, “[i]f any

court has, after hearing, found no cause to . . . revoke a suspended sentence,” then a subsequent

revocation “based solely on the alleged violation for which the hearing was held, shall be

barred.” Code § 19.2-306(D). Thus, the statute clearly anticipates that when a defendant is

accused of violating the terms of suspension, he will have notice of the violation and an

opportunity for a hearing. Likewise, the statute anticipates that after an alleged violation of the

terms of suspension, the court will have the opportunity to determine, at a hearing, whether there

is “good cause to believe that the defendant has violated the terms of suspension.” Code

§ 19.2-306(C). Additionally, in Peyton v. Commonwealth, 268 Va. 503, 511, 604 S.E.2d 17, 21

(2004), the Supreme Court held that there was a distinction between the willful failure of an

inmate to comply with the conditions of his suspended sentence and a failure due to

circumstances outside the inmate’s control. The Court observed that “in either case the inmate

necessarily will be subjected to a show cause hearing” at which the court may revoke the

inmate’s sentence. Id. (emphasis added).

       Here, the fifth condition of suspended sentence stated that upon receipt of a sworn

affidavit father would be arrested and be remanded to the custody of the sheriff for service of his
                                               - 16 -
twelve-month jail term. The procedure given in the court’s order did not provide an opportunity

for a show cause hearing at which father could argue that he had not, in fact, violated the terms

of suspension or that he had not done so willfully. The procedure given in the order deprived the

court of the opportunity to determine at a hearing whether there was “good cause to believe that

[father] ha[d] violated the terms of suspension,” Code § 19.2-306(C), before revoking the

suspension. We therefore hold that the court erred in including condition number 5 in its order;

we accordingly vacate that portion of the order, which fails to provide father with notice and an

opportunity to be heard prior to the circuit court deciding whether to revoke any portion of the

suspended sentence.

      E. THE COURT DID NOT ABUSE ITS DISCRETION BY USING ACTUAL INCOME FIGURES
                    AS A BASIS FOR DETERMINING MOTHER’S INCOME

       Father argues the court erred by “ignoring [mother]’s admission that she tithes 10% of

her income and the clear inference from her testimony that [mother’s] annual income is

$36,000.”

       The issue of a party’s income is a question of fact that we will not disturb unless it is

plainly wrong or without evidence to support it. Patel, 61 Va. App. at 727, 740 S.E.2d at 42.

“‘The credibility of the witnesses and the weight accorded the evidence are matters solely for the

fact finder who has the opportunity to see and hear that evidence as it is presented.’” McKee v.

McKee, 52 Va. App. 482, 492, 664 S.E.2d 505, 510 (2008) (en banc) (quoting Sandoval v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995)). Thus, “[o]n appeal, we

will not reverse findings of fact ‘unless plainly wrong.’” Budnick v. Budnick, 42 Va. App. 823,

834, 595 S.E.2d 50, 55 (2004).

       We find father’s assertion that the circuit court “minimize[ed],” “ignored” or

“overlooked” the facts on this issue to be baseless. The circuit court directly addressed in its

                                               - 17 -
letter opinion father’s argument regarding mother’s tithing and found it to be “without merit.”

Although mother testified that she believed she tithed $300 “[i]f it’s 10 % of what [she]

receive[s],” the court noted there was “no evidence to support [father’s] argument that [mother]

actually tithes $300.00 per month.”6 Instead of inferring income from mother’s testimony, the

court used actual income amounts from mother’s employment. The court had “the opportunity

to see and hear th[e] evidence as it [was] presented” and determine the “credibility of the

witnesses and the weight [to be] accorded the evidence.” See McKee, 52 Va. App. at 492, 664

S.E.2d at 510. Under our deferential standard of review, the court’s use of actual income figures

rather than use of mother’s testimony to infer income was not plainly wrong or without evidence

to support it. Thus we will not disturb the court’s decision on appeal.

                 F. THE COURT’S CALCULATION OF FATHER’S INCOME WAS NOT
                    PLAINLY WRONG OR WITHOUT EVIDENCE TO SUPPORT IT

       Father argues that the court erred “by adding all of [father’s] income from [c]ourt-

appointed counsel work to his deposits in determining his income[.]” The calculation of father’s

income is a question of fact, and we will not disturb the circuit court’s judgment unless plainly

wrong or without evidence to support it. Patel, 61 Va. App. at 727, 740 S.E.2d at 42.

       During the hearing on father’s motion to reduce child support, father introduced a list

purporting to show voucher amounts paid to him by the Commonwealth over a period of several

years. Father argued that the list included both garnished amounts and amounts that were

already counted as income by way of deposits into his operating account. Although father

argued that the circuit court could distinguish deposited amounts from garnished amounts by the

presence of a check number next to the entry, the court was not required to credit father’s

       6
          Although mother testified that she remembered writing checks for $300, she did not
testify that she did so every month. Further, father’s Exhibit 7 included seven checks dated
within the year prior to the September 24, 2014 hearing. Only one of those checks equaled or
exceeded $300.
                                               - 18 -
unsubstantiated testimony as to the meaning of the documents. The court questioned the parties

at length regarding the deposits reflected on father’s bank statements.

       Simply put, father disagrees with the court’s factual finding regarding his income in light

of the court’s interpretation of the documentary evidence and the weight given testimony

presented at trial. “[W]hen a court hears evidence at an ore tenus hearing, its decision is entitled

to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to

support it.” Goodhand v. Kildoo, 37 Va. App. 591, 599, 560 S.E.2d 463, 466 (2002). The

circuit court had before it all of father’s evidence and heard father testify. The court was not

required to credit father’s evidence or testimony. Father’s income is a finding of fact that we

will not disturb unless father points us to legal authority and argument demonstrating that the

circuit court was plainly wrong. Patel, 61 Va. App. at 727, 740 S.E.2d at 42. Father has failed to

do so. We will therefore leave the court’s factual finding undisturbed.

                        G. ASSIGNMENT OF ERROR DEFAULTED BY 5A:18

       Rule 5A:18 states:

               No ruling of the trial court . . . will be considered as a basis for
               reversal unless an objection was stated with reasonable certainty at
               the time of the ruling, except for good cause shown or to enable the
               Court of Appeals to attain the ends of justice. A mere statement
               that the judgment or award is contrary to the law and the evidence
               is not sufficient to preserve the issue for appellate review.

       “The main purpose of requiring timely specific objections is to afford the trial court an

opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and

reversals. In addition, a specific, contemporaneous objection gives the opposing party the

opportunity to meet the objection at that stage of the proceeding.” Weidman v. Babcock, 241

Va. 40, 44, 400 S.E.2d 164, 167 (1991) (citation omitted). Furthermore, “we will not consider a

different ground of objection raised for the first time on appeal[.]” O’Dell v. Commonwealth,

                                               - 19 -
234 Va. 672, 679, 364 S.E.2d 491, 495 (1988) (citing Rule 5:25, the Supreme Court’s equivalent

of this Court’s Rule 5A:18).

       Father argues that the court erred in “failing to determine [father’s] income at the time of

the filing of his Motion to Reduce Child Support, June 29, 2012, instead making a finding of

[father’s] 2014 income, a time not in existence when [father] filed his Motion to Reduce Child

Support.” He did not make this argument to the circuit court. Rather, father argued to the court

that his 2012 tax return was the best estimation of his current (2014) income because it was the

most recently filed return. Because the circuit court did not have an opportunity to rule on the

argument that 2012 was a more appropriate year because it was the year in which the motion was

filed, we will not address that assignment of error.7

                           H. ASSIGNMENTS DEFAULTED BY RULE 5A:20

        “Rule 5A:20(e) requires that an appellant’s opening brief contain ‘[t]he principles of law,

the argument, and the authorities relating to each question presented.’ Unsupported assertions of

error ‘do not merit appellate consideration.’” Fadness, 52 Va. App. at 850, 667 S.E.2d at 865

(alteration in original) (quoting Jones v. Commonwealth, 51 Va. App. 730, 734, 660 S.E.2d 343,

345 (2008)). An appellate court “is not a depository in which the appellant may dump the

burden of argument and research.” Id. “[S]trict compliance with the rules permits a reviewing

court to ascertain the integrity of the parties’ assertions which is essential to an accurate

determination of the issues raised on appeal.” Id. (quoting Jones, 51 Va. App. at 734-35, 660

S.E.2d at 345). Accordingly, when a party’s failure to strictly adhere to the requirements of Rule

5A:20(e) is significant, this Court may treat the assignment of error as waived. Id.

       7
        The court stated that it found no reason to rely on father’s 2012 tax return “for a
determination of his current income.” Modified child support payments were prospective only,
commencing on December 31, 2014.
                                              - 20 -
       Father argues that the circuit court erred by concluding “that [father’s] average monthly

income for the months of August through December 2014 would be the same as his average

monthly income for January through July 2014.” Father cites Srinivasan v. Srinivasan, 10

Va. App. 728, 735, 396 S.E.2d 675, 679 (1990), for the principle that “current circumstances and

what the circumstances will be ‘within the immediate or reasonably foreseeable future’” must be

the basis of support awards. But Father cites no principle of law, legal argument, or authority

relating to his contention that the circuit court used an incorrect method of determining his

current annual income when it calculated an average. Here, father’s failure to provide “[t]he

principles of law, the argument, and the authorities,” for this assignment of error is significant,

and we deem the argument waived. See Rule 5A:20.

       Father additionally argues that the circuit court

               committed plain error in finding that [father’s] own Certified
               Public Account (“CPA”), a man’s testimony[,] rebutted [father’s]
               testimony regarding his 2012 income, because the evidence was
               clear that only [father’s] bookkeeper—who is neither a CPA, nor a
               man—testified, and the record shows that [mother], not [father]
               called the bookkeeper as a witness.

In its letter opinion, the court refers to the witness as “he,” as a Certified Public Accountant, and

as father’s witness. Each of these characterizations conflicts with the record. Father does not

challenge the testimony of the witness, only the faulty description of the witness by the court.

Father fails to provide “[t]he principles of law, the argument, and the authorities” explaining why

the court’s faulty description of the witness makes the court’s finding regarding father’s income

incorrect. He failed to provide meritorious argument that the errors were more than harmless

misspeak. See Code § 8.01-678; see also Yarborough v. Commonwealth, 217 Va. 971, 978, 234

S.E.2d 286, 291 (1977) (“Absent clear evidence to the contrary in the record, the judgment of a

trial court comes to us on appeal with a presumption that the law was correctly applied to the

                                                - 21 -
facts. Furthermore, we will not fix upon isolated statements of the trial judge taken out of the

full context in which they were made, and use them as a predicate for holding the law has been

misapplied.”). We therefore consider this assignment of error waived. See Rule 5A:20(e).

                                           III. CONCLUSION

       We conclude that the circuit court erred in ordering that husband’s suspended jail

sentence for contempt would be automatically revoked if husband failed to make future

payments, without providing husband notice and an opportunity to be heard. Accordingly, we

reverse and vacate condition number 5 of the final order. We affirm the circuit court’s factual

findings of mother’s income and father’s income. Based on those findings, we hold that the

court did not err in determining father’s child support obligations. We therefore affirm the

remainder of the circuit court’s ruling.

                                                     Affirmed in part, reversed and vacated in part.

                                                - 22 -


334 F.2d 768
FOODTOWN OF OYSTER BAY, INC., Appellant,v.DILBERT'S LEASING AND DEVELOPMENT CORPORATION Debtor-Appellee.
No. 510, Docket 28952.
United States Court of Appeals Second Circuit.
Argued June 12, 1964.Decided July 20, 1964.

Lawrence G. Nusbaum, Jr., New York City, for appellant.
Daniel A. Shirk, New York City (Joseph Jaspan, Brooklyn, N.Y., on the brief), for debtor-appellee.
Before FRIENDLY, SMITH and MARSHALL, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge.

1
Foodtown of Oyster Bay, Inc., the lessee of store premises at 111 South Street, Oyster Bay, New York, appeals from an order of the United States District Court for the Eastern District of New York, Matthew T. Abruzzo, District Judge, awarding possession of the leased premises and a judgment of $1,261.12 for unpaid rent to the debtor-lessor, Dilbert's Leasing and Development Corporation, which is currently in reorganization under Chapter X of the Bankruptcy Act.  We find no error and affirm the order of the district court.

2
On January 10, 1963, Dilbert's Leasing and Development Corporation leased the premises for a term of ten years, commencing April 1, 1963, to One Eleven South Street Corporation for a monthly rental of $2,579.27.  A rider to the lease obligated the lessee to pay as additional rent the amount by which the real property taxes on the premises exceeded the sum of $10,699.24.  This additional rent was due on the first day of the month following the lessor's notifying the tenant of the assessment of excess taxes.  On February 5, 1963 the lessor filed a petition for an arrangement under Chapter XI of the Bankruptcy Act.  On March 14, 1963, the same day the lessor filed an amended petition for relief under Chapter X, the lease was assigned to the appellant.

3
On March 5, 1964 the trustee of the lessor petitioned the district court for an order to show cause why the lessee should not be dispossessed and why a judgment for unpaid and overdue rent should not be entered.  The petition alleged that the trustee had duly demanded and the lessee had failed to pay $1,261.12 additional rent for excess real property taxes that had become due on January 1, 1964, and $5,158.54 overdue rent for the months of February and March.  At the request of the lessee's attorney, the hearing on the order to show cause was adjourned until April 8, 1964.  During the interim, the lessee paid the back rent, and the order to show cause was marked off the calendar.  However, after the lessee's check for the $1,261.12 additional rent failed to clear the bank on several occasions, the trustee had the show cause order restored to the calendar.

4
The lessee has never answered the allegations of the trustee's petition.  Instead it moved to quash the show cause order on the ground that the court lacked jurisdiction to determine the merits of the controversy in a summary proceeding because the lessee is in possession of the property and has a substantial adverse claim which must be determined in a plenary suit.  However, the affidavit failed to state the nature or basis of this 'substantial adverse claim.'  Nor were any facts to back up the claim stated at any stage in the action.  The district court denied the jurisdictional objection raised by the appellant and gave the appellant three and a half hours in which to file an answer to the allegations of the trustee.  No answer was filed during that period, and the district court granted the relief requested by the trustee.

5
The main thrust of this appeal is that the reorganization court lacked jurisdiction to dispossess the lessee by a summary proceeding.  While it is well settled that a bankruptcy court may summarily adjudicate controversies involving property claimed to be a part of the bankrupt's estate which is in the actual or constructive possession of the bankrupt, Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481, 60 S.Ct. 628, 84 L.Ed. 876 (1940), we agree with the appellant that a lessee in possession under a valid lease cannot normally be ousted save by a plenary suit in the reorganization court or in the state courts unless he consents to the exercise of the bankruptcy court's summary jurisdiction.  Matter of Mt. Forest Fur Farms of America, 122 F.2d 232 (6 Cir. 1941), cert. denied, 314 U.S. 701, 62 S.Ct. 480, 86 L.Ed. 561 (1942); 6 Collier on Bankruptcy 706 (14th ed. 1947).  The appellee is mistaken in contending that possession by the lessee confers constructive possession on the lessor so as to permit exercise of summary jurisdiction; to the contrary, possession by the lessee under an initially valid lease is hostile to possession by the lessor.  See 2 Colier, Bankruptcy, 23.06(12).

6
However, under the facts here, we are constrained to hold that the lessee consented to the exercise of summary jurisdiction.  The lessee was served by registered mail with the order to show cause signed March 5, 1964.  Counsel for the lessee admitted service on that date, obtained an adjournment for a month so that he could arrange for payment and take a vacation, and adjournments from time to time while payments were being made.  Although the attorney for the tenant wrote on March 5 that he had advised his client to make payment without prejudice to any of his rights concerning the motion, a series of adjournments followed without any question being raised of the summary nature of the proceeding.  Two months' basic rent back payments were made during this period, but a check for additional rent measured by taxes, due under the lease several times failed to clear and the motion was brought on for hearing.  It was only after these occurrences that counsel for the lessee on May 22 attempted to file a special appearance and object to the exercise of summary jurisdiction by the reorganization court.

7
We think that the lessee's participation in the summary proceedings, arranging for continuances of the order to show cause over the period from March 5 to May 22, retaining possession while making back payments, even though admitting in argument on the motion on May 22 the trustee's right to possession, amounted to a consent to the summary character of the proceeding.  The lessee obtained the advantage of the delay from the continuances in the summary proceeding itself and should not now be heard to object that a different procedure should have been followed during that period to enforce the trustee's admitted right.  We therefore do not reach appellee's further contention based on the debtor's possession at the time of the petition.  The district court's exercise of summary jurisdiction was quite proper.

8
We see no merit to appellant's contentions that New York eviction practice and procedure should have been followed, for they are not binding upon a bankruptcy court.  Cf. Sproul v. Gambone, 34 F.Supp. 441 (W.D.Pa.1940); Frederick v. Motors Mtge.  Corp., 1 F.2d 437 (W.D.Pa.1924).

9
The order of the district court is affirmed.


STATE OF HAWAI`I, Plaintiff-Appellee,
v.
DANIEL WATANABE, Defendant-Appellant.
No. 29753.
Intermediate Court of Appeals of Hawaii.
March 30, 2010.
On the briefs:
Benjamin E. Lowenthal, for Defendant-Appellant.
Pamela Lundquist, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.

SUMMARY DISPOSITION ORDER
FOLEY, Presiding Judge, FUJISE and LEONARD, JJ.
Defendant-Appellant Daniel Watanabe (Watanabe) appeals from the March 19, 2009 judgment of conviction of the Circuit Court of the Second Circuit[1] (circuit court), which found him guilty of Prohibited Acts Related to Drug Paraphernalia in violation of Hawaii Revised Statutes (HRS) § 329-43.5 (1993).
Watanabe argues that circuit court erred by (1) instructing the jury, which had told the court that it could not reach a unanimous decision, to "return tomorrow morning and continuing [sic] to deliberate with a view toward reaching a verdict on all counts;" and (2) not correcting "inconsistent" verdicts that convicted Watanabe of the paraphernalia charge, while acquitting him of drug promotion charges, under HRS §§ 712-1243(1) and -1249 (1993 and Supp. 2009).
Upon careful review of the record and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Watanabe's points of error as follows:
1. The supplemental instruction given to jurors to continue deliberations "with a view toward reaching a verdict on all counts" was not an Allen charge[2] as prohibited by State v. Faiardo, 67 Haw. 593, 600-01, 699 P.2d 20, 24-25 (1985) and State v. Villeza, 72 Haw. 327, 335-36, 817 P.2d 1054, 1058-59 (1991).
The instruction neither facially nor impliedly pressured dissenting jurors to accede to the majority's opinion. Faiardo, 67 Haw. at 600, 699 P.2d at 25. It did not inappropriately introduce outside concerns, such as the length of deliberations or the possibility of mistrial, which might affect deliberations. Id., Villeza, 72 Haw. at 335, 817 P.2d at 1058.
Furthermore, there was no "blasting" effect from the instruction given. Cf. Faiardo, 67 Haw. at 601, 699 P.2d at 25 (jurors returned verdict one hour after faulty instruction despite deliberating for four days). The supplemental instruction was given after jurors had deliberated less than four hours, and after receiving it, jurors deliberated for three more hours before reaching the verdicts. Appellant has not demonstrated that the instruction given created a "coercive environment incapable of supporting a meaningful verdict based solely upon the jury's consideration of the evidence." State v. Gonsalves, 108 Hawai`i 289, 294-95, 119 P.3d 597, 602-03 (2005) (quoting Villeza, 72 Haw. at 335, 817 P.2d at 1058) (internal quotation marks omitted).
Accordingly, Watanabe has failed to meet his burden to prove that the jury instruction was erroneous, so we need not address whether the instruction was harmless beyond a reasonable doubt. See State v. Nichols, 111 Hawai`i 327, 337, 141 P.3d 974, 984 (2006).
2. We conclude that Watanabe's points of error based on allegedly "inconsistent" verdicts are without merit. Watanabe premised his arguments on his assumption that the jury concluded that he possessed a glass pipe containing crystal methamphetamine. Watanabe's logic fails because HRS § 329-43.5 prohibits paraphernalia use, as well as possession. Contrary to his assertion, sufficient evidence established that Watanabe used the pipe or was an accomplice to his co-defendant's use of the pipe. Two witnesses testified that Watanabe lit the pipe for his co-defendant, and the co-defendant testified that Watanabe took "hits" himself. "The testimony of a single witness, if found credible by the trier of fact, may constitute substantial evidence to support a conviction." State v. Montgomery, 103 Hawai`i 373, 381, 82 P.3d 818, 826 (App. 2003). From additional testimony regarding the search of the car where the drugs were found, the jury may have concluded that there was reasonable doubt that Watanabe possessed the drugs. Accordingly, the jury's verdicts"for conviction and acquittal could be reconciled.
Therefore, the March 19, 2009 judgment of conviction of the Circuit Court of the Second Circuit is affirmed.
NOTES
[1]  The Honorable Shackley F. Raffetto presided.
[2]  The Allen charge draws its name from Allen v. United States, 164 U.S. 492 (1896), in which the U.S. Supreme Court approved a jury instruction that exhorted dissenting jurors to reconsider their opinion in light of the majority's.


                                                                                ACCEPTED
                                                                                03-15-00644-CV
                                                                                13805398
                                                                                THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                                11/15/2016 3:15:23 PM
                                                                                JEFFREY D. KYLE
                                                                                CLERK

                                                                                RECEIVED IN
                                                                                3rd COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                                11/15/2016 3:15:23 PM
 November 15, 2016                                                                               JEFFREY D. KYLE
                                                                                Clerk

 Jeffrey D. Kyle, Clerk
 Court of Appeals
 Third District of Texas
 209 West 14th Street, Room 101
 Austin, Texas 78701

 RE:     Court of Appeals Number: 03-15-00644-CV
         Keystone RV Company v. Texas Department ofMotor Vehicles

 Dear Mr. Kyle:

 A review of this Court' s Opinion issued in this case has revealed two instances where it
 appears there may be a mis-citation of a statute. On page 17, the last full sentence,
 Section 2301.204 is cited, but we believe the Court meant to cite to 2301.704. Similarly,
 on page 18, the first full sentence, 2301 .204 is cited when we believe the Court meant to
 cite to 2301.704.

 We bring these issues to the Court's attention in order that the Court have an opportunity
 to make such corrections to the Opinion if it so desires.

 Thank you for your attention in this matter.

 Dennis McKinney
 Assistant Attorney General
 Administrative Law Division

 cc:     Christopher J. Lowman (Via E-Service) ·

POST OFFICE   Box   125 48 , AUSTIN, TEXAS 7 8 711-2 5 48     T EL:(512) 463-2100 W E B: W WW .TEXASATTORNEYGENERAL.GOV
                                              An /:'qua/ Hmp/oymenl Opportunity limployer


Petition for Writ of Mandamus Denied and
Memorandum Opinion filed March 23, 2010

In
The
Fourteenth
Court of Appeals

NO. 14-10-00176-CV

In Re Marshall James Frazier,
Relator

ORIGINAL
PROCEEDING

WRIT OF MANDAMUS

MEMORANDUM
 OPINION
On March 5, 2010, relator, Marshall James Frazier,
filed a petition for writ of mandamus in this Court.  See Tex. Gov’t
Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the
petition, relator asks this Court to compel the Honorable John Phillips,
presiding judge of the 314th District Court of Harris County, to dismiss the
underlying suit affecting the parent-child relationship filed by the Texas
Department of Family and Protective Services (the “TDFPS”), and order the
immediate return of the children to him.
            In
his petition, relator claims the trial court should not have (1) continued the
suit affecting the parent-child relationship case beyond the statutory limit of
one year and extension of 180 days with the children remaining in foster care or
under the conservatorship of the TDFPS; and (2) ordered that the TDFPS remain
as temporary conservator of the children after dismissal of the suit affecting
the parent-child relationship and the re-filing of the suit when there are no
new allegations warranting removal or termination.
            To
be entitled to the extraordinary relief of a writ of mandamus, the relator must
show that the trial court clearly abused its discretion and there is no
adequate remedy by appeal.  In re Team Rocket, L.P., 256 S.W.3d 257, 259
(Tex. 2008) (orig. proceeding).  Relator has not provided copies of the order
dismissing the first suit affecting the parent-child relationship filed by the
TDFPS or the petition filed by the TDFPS in the second suit which relator
references in his petition for writ of mandamus.  Additionally, there may be
other documents not referred to in relator’s petition, also material to his
claim for relief.  Relator has not met his burden of providing a sufficient
record establishing his right to mandamus relief.  See Walker v. Packer,
827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); Tex. R. App. P. 52.3(k),
52.7.
Relator has not established his entitlement to the
extraordinary relief of a writ of mandamus.  Accordingly, we deny relator’s
petition for writ of mandamus and motion for temporary emergency relief.

                                                                                PER
CURIAM

Panel consists of Justices Yates, Seymore, and Brown.


79 So.2d 647 (1955)
Mrs. Althema BENOIT, Plaintiff-Appellee,
v.
COMMERCIAL CASUALTY INSURANCE CO. et al., Defendants-Appellants.
No. 3994.
Court of Appeal of Louisiana, First Circuit.
April 22, 1955.
*648 Stafford & Pitts, Alexandria, for appellants.
J. Minos Simon, Lafayette, for appellee.
TATE, Judge.
This suit is for damages sustained by a wife who was guest passenger in her husband's automobile at the time of an accident. It is, of course, against her husband's liability insurers. Defendants appeal from judgment in favor of plaintiff. Plaintiff has answered the appeal, requesting that the amount of the award be increased.
The undisputed evidence, and finding of the District Court, is that the accident occurred on a rural black-top highway, twenty to twenty-two feet wide, with abutting gravel shoulders of four feet in width. It occurred between 7:30 and 8:00 P.M. on March 2, 1952, during a rainy dark evening, with greatly restricted visibility. Immediately before the accident, plaintiff-wife's husband, Mr. Althema Benoit, driving the vehicle owned by him and insured by defendants herein, drew over partly on his right shoulder to discharge another passenger. His left wheels remained on the black-top portion of the highway. The passenger alighting, Benoit started, pulling to his left onto the right side of the travelled portion of the highway. He was proceeding at slow speed into his right traffic lane when he was struck from the rear by a taxi driven by Arista Theriot, which was travelling in the same direction, at a speed of 35-45 miles per hour. Plaintiff, Mrs. Benoit, sustained certain injuries as a result of this accident.
Defendants' chief defense is that the accident was solely caused by the negligence of Theriot, in not stopping or pulling to the right to avoid striking the Benoit vehicle. Accordingly, defendants urge that no primary or contributory negligence on the part of Benoit was a proximate cause of the accident and of Mrs. Benoit's resulting injuries. Defendants rely on Theriot's testimony that the Benoit automobile came into his lane of traffic approximately 100 feet in front of him, and that the accident occurred within 15 or 20 feet thereafter, and that therefore Theriot could have stopped according to a chart shown at 14 Tulane Law Review 503 within 106.7 feet *649 even if going 40 miles per hour, or before striking Benoit; and could also have gone into the left lane and thus avoided the accident.
In the first place, such tables as referred to are approximations, based on averages, and do not necessarily apply to a given accident other than as a very general rough guide. Further, it is undenied that the black-top was wet and slippery, and of course such tables applying to average stopping times on dry surfaces are not applicable.
In the second place, however, the trial court found that Benoit pulled out from the shoulder immediately in front of Theriot, or when there was "little distance separating both cars". This conclusion is supported by the evidence of the passenger in Theriot's automobile and of a bystander. Theriot himself testified he just had time to apply the brakes before crashing into Benoit's car.
While perhaps Theriot might have avoided the accident by pulling to the left, his failure to do so does not necessarily constitute negligence in an emergency created by the negligence of the preceding driver. Also, he testified that he could not do so because the black-top was slippery, and he was afraid that he would lose control of his car if he attempted to turn quickly to the left.
Actually, the question involved is whether any negligence of Benoit whether concurrent and contributory or not, was a proximate cause of the accident and the resulting injuries. We feel, as did the District Court, that Benoit was clearly negligent, and that this negligence was a proximate cause of the accident, when he turned, or started onto the highway from his parked position partly on the shoulder, without yielding the right of way to the traffic approaching from the rear. LSA-R.S. 32:235, 32:236, subd. A, 32:237, subd. E, see Bankston v. Baton Rouge Bus Co., Inc., La.App., 1 Cir., 58 So.2d 232. Further, Benoit pulled into the highway although due to misty windows his vision to the rear was obscured. Cases relied upon by defendant to show Benoit was not negligent concern instances where the rear car struck the forward car when the latter was either slowing to stop; or else had already after returning to the travelled portion of the road, proceeded for some distance before being struck from the rear.
Plaintiff was awarded $2,000 damages for pain, suffering, and discomfort, suffered as a result of an injury to her neck and spine. While plaintiff's expert witness, Dr. Blase Salatich, orthopedic surgeon was of the opinion that the whip-like force exerted on the head and neck had produced permanent damage to a cervical vertebrae, with permanent pain and restriction of motion; the District Court based on findings of the general practitioner, of Dr. Homer Kirgis, neuro-surgeon, of the Ochsner Clinic, and of Dr. James Gilly, orthopedic surgeon of Lafayette, found that the complaints of plaintiff as of the time of trial were exaggerated, but that she had suffered an injury causing some pain, suffering and discomfort, although not causing serious and permanent organic disturbance or injury.
We feel that the District Court's award of damages for subjective pain and suffering in the amount of $2,000 occasioned by the injury resulting from the negligence of defendants' insured is supported by the evidence, and this factual determination being not manifestly erroneous, we will neither increase or decrease this award.
The co-defendant insurance companies had jointly issued the policy involved. But, as alleged in defendants' answer and proven by the policy itself, the Firemen's Insurance Company of Newark, New Jersey, was liable thereunder only for comprehensive (including fire, theft, and windstorm) and for collision coverage. It was not liable thereunder for bodily injury liability, which liability co-defendant, the Commercial Casualty Insurance Company, had underwritten. Inadvertently, the judgment below held both defendants liable in *650 solido, and therefore the judgment must be amended to cast only this latter company.
For the above and foregoing reasons, the judgment of District Court herein is amended so as to dismiss the suit insofar as co-defendant Firemen's Insurance Company of Newark, New Jersey, is concerned, but to affirm it against the Commercial Casualty Insurance Company and in all other respects. Costs of all proceedings and of this appeal to be paid by the appellant, Commercial Casualty Insurance Company.


110 F.Supp. 168 (1953)
UNITED STATES
v.
44.00 ACRES OF LAND, MORE OR LESS, IN TOWN OF GREECE, MONROE COUNTY, N. Y. et al.
Civ. A. No. 5099.
United States District Court W. D. New York.
January 28, 1953.
George L. Grobe, U. S. Atty., Buffalo, N. Y., for plaintiff; R. Norman Kirchgraber, Asst. U. S. Atty., Buffalo, N. Y. and Adolph H. Huttar, Sp. Atty., Department of Justice, Buffalo, N. Y., of counsel.
Frederick Wiedman, Rochester, N. Y., and Gallop, Climenko & Gould, New York *169 City, for defendant John H. Odenbach; Jesse Climenko and Arthur S. Friedman, New York City, of counsel.
BURKE, District Judge.
This is a motion by the defendant Odenbach to vacate and set aside the declaration of taking filed herein on June 11, 1952 on the ground that the estimate of just compensation of $300,000 contained therein was not determined and arrived at in good faith, and to vacate and set aside the ex parte judgment entered thereon dated June 16, 1952.
The plaintiff commenced proceedings for condemnation of the property described in the declaration of taking on December 27, 1951 by filing with the Clerk of this Court a summons and complaint. On December 29, 1951 an order of immediate possession was made and entered by this Court. On February 13, 1952 an answer was filed on behalf of the defendant Odenbach. Prior to the institution of proceedings for condemnation, the plaintiff had been in possession of substantial portions of the property involved since on or about July 11, 1951 under a written right of entry granted to the United States by Odenbach Holding Corporation from whom the defendant Odenbach acquired title to the property. The right of entry was executed on July 11, 1951. It recited negotiations between the parties for the purchase of the property involved and provided for 90 days subsequent to July 11, 1951 as the period of its duration. On October 10, 1951 Odenbach Holding Corporation conveyed title of the property to John H. Odenbach. Negotiations for the purchase of the property were carried on between representatives of the owner and representatives of the Government subsequent to July 11, 1951. On October 11, 1951, when the right of entry expired, no agreement had been reached for the purchase of the property. Further negotiations were had regarding a supplemental right of entry, but no supplemental right of entry was ever executed, although the Government continued in possession.
Subsequent to the commencement of condemnation proceedings, there were many items of property used or usable in connection with the property which the Government desired to appropriate. Accordingly on March 31, 1952, the attorneys for the Government and for the owner entered into a written stipulation providing that 116 separately numbered items of property consisting of railroad tracks, electrical equipment, storage tanks, loading cranes and miscellaneous equipment should be deemed part of the real estate to be considered in the valuation in the condemnation proceedings. On June 16, 1952, after the judgment of this Court had been entered on the declaration of taking, the defendant Odenbach filed a motion for an order for the distribution and payment of the sum of $300,000 deposited with the Court together with the filing of the declaration. The Government filed a cross-motion for the release of the sum on deposit for the purpose of paying taxes, for the purpose of paying a mortgage held by Reconstruction Finance Corporation amounting to $129,500 and accumulated interest, and for the purpose of paying a judgment in favor of the United States in the sum of $168,891.53 against Odenbach Shipbuilding Corp. entered November 30, 1951 in an action in this Court. The Government claimed on that motion that Odenbach Shipbuilding Corp. and Odenbach Holding Corp. were mere alter egos of John H. Odenbach and that the judgment against Odenbach Shipbuilding Corp. should be determined to be a valid and subsisting lien against the premises in condemnation or in the alternative that the amount of the judgment should be set off against the sum on deposit with the Court and against any further sum that might be allowed for just compensation for the taking by the United States. A hearing on the motions was had on June 23, 1952. Before a determination could be had the defendant Odenbach filed the present motion to set aside the declaration of taking and the judgment entered thereon. He incorporated in that motion a motion for an order permitting the withdrawal of his notice of motion and petition for the distribution and payment of the sum deposited with the Court together with the declaration of taking.
*170 On July 24, 1952 the plaintiff filed an answer and return to the motion to set aside the declaration of taking and the judgment entered thereon, supported by an affidavit of R. Norman Kirchgraber, Assistant United States Attorney. In its answer and return the plaintiff opposed the motion on the grounds: (1) that this Court is without discretion or jurisdiction to set aside the declaration of taking; (2) that the allegations set forth in the notice of motion and supporting affidavits are insufficient to warrant the setting aside of the judgment entered on the declaration of taking; (3) that upon the merits neither the declaration nor the judgment should be set aside.
On September 12, 1952, on the occasion of a hearing on a motion by the Government to vacate or limit a notice of the defendant Odenbach to take depositions of witnesses, the Court inquired whether the Government still contended that the Court had no power to determine the question of good faith in the filing of the declaration of taking. The reason for adverting to that question was that it was not clear whether the Government persisted in questioning the Court's authority to determine the question of good faith in the filing of the declaration of taking, even though that had been formally stated as a ground for objection in the Government's answer and return to the notice of motion. A brief had been filed by the Government after the original hearing on the motion to set aside the declaration of taking and the judgment entered thereon, but the position of the Government on the question had not been made clear. In the discussion in open court on September 12, 1952 between the Court and the Government's representative and in the presence of opposing counsel, it seemed to be the position of the Government that the question of good faith in filing the declaration of taking was properly open for determination by the Court. It was then decided in open court that, since the question of good faith was properly open for determination, the most satisfactory way to resolve it was by taking testimony bearing on the question of good faith rather than on the scant affidavits that had been filed in support of and in opposition to the motion. Accordingly a hearing was held on December 9, 1952 for the taking of evidence directed to the question whether the estimate of just compensation contained in the declaration of taking had been made in good faith. The Government was represented by counsel at the hearing.
Prior to the hearing and on December 4, 1952 the Government, without applying to the Court for leave to do so, filed an amended declaration of taking reciting the filing of a declaration of taking on May 26, 1952 and the simultaneous deposit in the registry of the Court of the sum of $300,000 (the original declaration of taking had been filed not on May 26, 1952 but on June 11, 1952, and the deposit of $300,000 had been made simultaneously therewith). The amended declaration also contained the following:
"Whereas, the amount deposited in the registry of the court at the time of filing of the declaration of taking was intended to cover the value of the real property only, and it has been administratively determined that it is necessary and advantageous to the interests of the United States to amend the said declaration of taking on file in the above-entitled cause by increasing the amount deposited to cover value of certain properties included therein.
"Now, Therefore, I, Edwin V. Huggins, Assistant Secretary of the United States Air Force, acting pursuant to the powers and authorities recited in the above-mentioned petition and declaration of taking, filed in the above-entitled cause, in order to deposit additional funds into the registry of the court, and in order to facilitate the adjudication of the interests of the parties involved, do hereby amend said declaration of taking by increasing the amount of estimated compensation for the land taken to be $500,000.
"It is intended that the above-mentioned estimated compensation shall supersede and take the place of the compensation set forth in Schedule `A' of the declaration of taking executed *171 by the Under Secretary of the Air Force on May 21, 1952, but that the said declaration of taking is not changed and shall not be deemed to be changed in any other particular than is herein expressly set forth."
Simultaneous with the filing of the amended declaration of taking on December 4, 1952, the plaintiff deposited with the registry of this court on additional sum of $200,000.
The first question for determination is the court's power to inquire into the good faith of the acquiring authority regarding the statement of estimated just compensation contained in the declaration of taking. The statute, 40 U.S.C.A. §§ 258a-258e, providing for the acquiring by the Government of immediate title to lands to be condemned by the filing of a declaration of taking and the deposit in court of the amount of estimated just compensation, is supplemental to existing legislation regarding condemnation proceedings. "The purpose of the statute is twofold. First, to give the Government immediate possession of the property and to relieve it of the burden of interest accruing on the sum deposited from the date of taking to the date of judgment in the eminent domain proceeding. Secondly, to give the former owner, if his title is clear, immediate cash compensation to the extent of the Government's estimate of the value of the property." U. S. v. Miller, 317 U.S. 369, 381, 63 S.Ct. 276, 283, 87 L.Ed. 336. The statute provides that the declaration of taking shall contain or have annexed among other things "A statement of the sum of money estimated by said acquiring authority to be just compensation for the land taken."
It is fundamental that the courts may require compliance with the statute when the Government elects to resort to the statutory method of acquiring title. If an acquiring authority should file a declaration of taking containing a statement of estimated just compensation on its face plainly inadequate, such as a mere nominal sum for property described in the declaration, and should deposit such nominal sum in court, the owner would not be without a remedy to review by judicial inquiry such an arbitrary act of an acquiring authority amounting to non-compliance with the statute. In such an extreme case it would be readily apparent that the purpose of the statute was being thwarted by arbitrary governmental action, by mere simulated or token compliance with the statute. It is true that no such extreme case is involved here, but the defendant nevertheless has charged lack of good faith in the Government's estimate of just compensation and has supported the charge by affidavit making a prima facie showing of non-compliance with the statute. In Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911, the Court recognized the owner's right to challenge the validity of a taking for departure from statutory limits. There was involved in that case the question of the owner's right to question the validity of a taking as not being for the purpose authorized by statute. In United States v. Meyer, 7 Cir., 113 F.2d 387, 392; certiorari denied 311 U.S. 706, 61 S.Ct. 174, 85 L. Ed. 459, the Court by plain implication recognized the judicial power to review an administrative decision regarding the necessity of a taking. I understand the decision of the Court of Appeals for the Second Circuit in United States v. State of New York, 160 F.2d 479, certiorari denied 331 U.S. 832, 67 S.Ct. 1512, 91 L.Ed. 1846, to mean that there may be judicial review of the question whether public officials have acted arbitrarily in determining what is "public use" in condemnation proceedings. There can be no doubt that the court may not substitute its judgment for what is just compensation for the administrative determination of the acquiring authority. That however, does not mean that the court is without power to review an administrative determination involving the statutory requirement under the declaration of taking statute of a statement of estimated just compensation, where the good faith of the acquiring authority is unequivocally challenged and where the challenge is supported by a prima facie showing of lack of good faith and non-compliance with the statute.
*172 On the evidence produced at the hearing, I make the following findings of fact:
1. In December, 1951 the Government's written authority, under the right of entry to occupy the premises involved in this proceeding, had expired. Negotiations for the purchase of the property by the Government had not resulted in an agreement to purchase. On December 15, 1951 Odenbach sent a telegram to the New York District Office of the United States Corps of Engineers, whose representatives had been negotiating for the purchase of the property, demanding possession of the property and the removal therefrom of the A. O. Smith Company, whom the Government had put in possession.
2. Odenbach immediately received a communication in reply from a representative of the New York District office of the United States Corps of Engineers asking Odenbach to withhold taking any steps to regain possession of the property pending the preparation of papers in condemnation proceedings. The representative of the District Engineer's office stated that a condemnation proceeding would be commenced and a deposit made in connection therewith of $500,000, which would be available to Odenbach.
3. Representatives of the New York District Office of the United States Corps of Engineers recommended the institution of the condemnation proceeding to the United States Secretary of the Air Force and recommended that a deposit be made in connection therewith of $500,000.
4. A declaration of taking was executed by the Assistant Secretary of the Air Force on December 21, 1951. Such declaration contained a statement that the estimated just compensation of the premises described therein was $500,000. A certified copy of the declaration was forwarded by the office of the Secretary of the Air Force to the New York District Engineer's office with a request that that office procure a check for $500,000 for deposit with the declaration of taking. The check was obtained and forwarded to the United States Attorney at Buffalo, N. Y., by letter dated January 11, 1952. The letter of transmittal specifically recited that the enclosed check for $500,000 was for deposit in the registry of the Court, together with the declaration of taking.
5. The declaration of December 21, 1951 was not filed with the Court nor was the check for $500,000 deposited in the registry of the Court.
The Government presented no evidence. An adjournment was taken to allow the Government to determine whether it wished to present evidence. The Court has been informed by the representative of the United States Attorney's office in charge of the proceeding that the matter was to be considered submitted for decision without further evidence and without further argument.
I can conceive of many possible reasons why the acquiring authority in good faith might have later determined that estimated just compensation was less than $500,000, as stated in the declaration of December 21, 1951. In the state of the record, however, leaving the reason for the change from $500,000 to $300,000 unexplained in the face of the unequivocal charge of bad faith in reducing the estimate of just compensation to $300,000 and in the face of prima facie proof amply sufficient to sustain the charge of bad faith, I am constrained to find that the statement of estimated just compensation in the declaration of taking dated May 21, 1952 was arbitrary and was not made in good faith, and that the declaration and deposit did not comply with the requirements of the statute.
The declaration of taking dated May 21, 1952 and filed with this Court on June 11, 1952 and the judgment of this Court entered thereon dated June 16, 1952 should be vacated and set aside. The defendant may have an order permitting the withdrawal of his motion for the distribution of the sum of $300,000 deposited with the declaration.


737 N.W.2d 432 (2007)
HALL
v.
LIEBOVICH LIVING TRUST (ABRAHAMSON, C.J. AND BRADLEY, J., DISSENT).
No. 2006AP0040.
Supreme Court of Wisconsin.
June 12, 2007.
Petition for review denied.


423 F.2d 680
Gerald F. KROONv.Lloyd R. MAXWELL and Caroline Maxwell v. MAXWELL SALES &ENGINEERING CO., a Delaware corporation, Sherman Car WashEquipment Company, a Michigan corporation and F. WilliamThacher, Jr. (Third-Party Defendants) F. William Thacher,Jr. and Sherman Car Wash Equipment Co., (Third-PartyDefendants), Appellants.
No. 18062.
United States Court of Appeals, Third Circuit.
Argued March 17, 1970.Decided March 25, 1970.

Harry A. Rutenberg, Rutenberg, Rutenberg, Rutenberg & Rutenberg, Philadelphia, Pa.  (Michael J. Rutenberg, Philadelphia, Pa. on the brief), for appellants.
Tom P. Monteverde, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellees.
Before McLAUGHLIN, FREEDMAN and GIBBONS, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.

1
This case began as a suit by plaintiff against two of the signers of a promissory note.  The defendants filed a third party complaint against the other co-signers of the note.  After trial the district judge made findings of fact and entered judgment in favor of the plaintiff against the defendants on the note and in their favor as third party plaintiffs against Thacher and Sherman Car Wash Equipment Company for the amounts which the third party plaintiffs were required to pay to satisfy the plaintiff's judgment against them.1  These third party defendants have taken this appeal.

2
The findings of the district judge relating to the disputed factual issues are amply supported by the record and the conclusions of law which he applied are free from error.

3
The factual circumstances are extremely complicated and of interest only to the parties involved.  They are fully reviewed in the opinion of the district judge and no useful purpose would be served by elaborating them again.

4
The judgment of the district court will be affirmed.

1
 Kroon v. Maxwell, 297 F.Supp. 277 (E.D.Pa.1969)


                          Fourth Court of Appeals
                                San Antonio, Texas
                                     January 21, 2014

                                   No. 04-13-00550-CV

                                    Randy K. SMITH,
                                        Appellant

                                             v.

               Lawrence REID, Royce Reid, Jennifer Heath and THL GP Inc.,
                                     Appellees

                From the 63rd Judicial District Court, Edwards County, Texas
                                    Trial Court No. 3798
                       Honorable M. Rex Emerson, Judge Presiding

                                      ORDER
      The Appellant’s Motion for Leave to File to Withdraw and Substitute Attorney of Record
is GRANTED.

                                                  _________________________________
                                                  Catherine Stone, Chief Justice

       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 21st day of January, 2014.

                                                  ___________________________________
                                                  Keith E. Hottle
                                                  Clerk of Court