Home / Uncategorized / STEINBERG v. STEINBERG

STEINBERG v. STEINBERG



NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.


STEINBERG

v.

STEINBERG


AUGUST 8, 2000

Record No. 0525-00-2

Present: Judges Elder, Bumgardner and Humphreys

MURRAY L. STEINBERG

v.

KATHERINE T. STEINBERG, N/K/A

KATHERINE T. SHUMAKER


Record No. 0602-00-2

MURRAY L. STEINBERG

v.

KATHERINE T. STEINBERG, N/K/A

KATHERINE T. SHUMAKER

MEMORANDUM OPINION[1]: PER
CURIAM

FROM THE CIRCUIT COURT OF HENRICO COUNTY

George F. Tidey, Judge

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

(Murray J. Janus; Bremner, Janus, Cook &
Marcus, on brief), for appellee.


Murray L. Steinberg appeals the decision of the
circuit court denying his motions to change venue and for
modification of custody, visitation and child support. Steinberg
raises twelve issues on appeal, which we address seriatim
below. Upon reviewing the record and briefs of the parties, we
conclude that these appeals are without merit. Accordingly, we
summarily affirm the decision of the trial court. See Rule
5A:27.

Background

These consolidated cases are the latest in an
extensive series of appeals filed by Steinberg arising from his
divorce from Katherine T. Shumaker and the resulting custody,
visitation and support issues.
[2] The current dispute
arose when Steinberg filed a motion to reinstate and a motion
seeking a change of venue on April 14, 1999. In an opinion
letter, the trial court indicated that it would deny the motion
to change venue. The trial court entered an order incorporating
its opinion letter on March 13, 2000. On May 10, 1999, Steinberg
filed a second motion to reinstate and a motion for a
modification of support, custody and visitation. By order entered
August 2, 1999, the trial court denied the motion for
modification. On the same day, Steinberg filed a motion to
vacate, arguing that there was no compelling state interest and
that the court lacked subject matter jurisdiction. Steinberg also
filed a subpoena duces tecum, seeking records
related to the legal fees the trial court ordered him to pay
Shumaker, a motion seeking verification of child care costs, and
a motion for mediation. The trial court granted Shumaker’s motion
to quash the subpoena regarding her attorney’s records, granted
her motion to quash a subsequent subpoena duces tecum
directed to Shumaker’s employer, and denied Steinberg’s motions
to dismiss for lack of jurisdiction, to reconsider, and to set
aside all previous orders for lack of compelling state interest.
On March 13, 2000, the trial court entered an additional order
denying Steinberg’s motions to vacate all previous orders for
lack of subject matter jurisdiction, lack of compelling state
interest and alleged fraud on the court by Shumaker and her
counsel.

By notice filed January 6, 2000, Shumaker
indicated she would seek to have Steinberg found in contempt for
his failure to pay $405 as his share of the child’s 1997
orthodontist expenses.

The trial court held an ore tenus
hearing on January 18, 2000, at which both parties presented
evidence. The trial court subsequently denied Steinberg’s motion
to modify visitation, custody and support by order entered
February 8, 2000. While Steinberg filed a motion seeking a stay
of execution on the ground that he had been found to be indigent
in the past, the trial court denied the requested stay of
execution.
[3] Steinberg appealed.

Analysis

I. Lack of a Hearing

Steinberg contends that the trial court erred
by failing to hold an evidentiary hearing prior to ruling on
several of his motions, including the motions to change venue and
challenging subject matter jurisdiction. We find no error.

Whether to receive evidence is a matter left to
the discretion of the trial court, whose decision will not be
reversed in the absence of an abuse of that discretion. The
motions were decided by a judge who was familiar with the parties
and the issues, and who had conducted numerous hearings
throughout the extended litigation. Steinberg’s allegations of
fraud and lack of subject matter jurisdiction were repetitious
and duplicative of previous motions heard and rejected by the
trial court. His challenge to the lack of compelling state
interest was based upon questions of law, not fact. His motion to
change venue was based upon the single factual allegation of the
parties’ relocation. In light of Shumaker’s objection to the
motion, and the court’s extensive experience with the parties, we
cannot say that the trial court’s decision to deny that motion
without receiving evidence was an abuse of discretion. We
therefore find no abuse of discretion in the trial court’s
decision not to hold evidentiary hearings on these motions.

II. Motion to Change Venue

Steinberg filed a motion to change venue based
upon the fact that the parties and the child now resided in
Hanover County. Steinberg alleged that it was therefore in the
child’s best interest for this matter to be transferred to
Hanover County. The trial court denied this motion on the ground
that both parties did not agree to the change of venue. We find
no error.

The parties have a lengthy history of
litigation in the courts of Henrico County. While both parents
now reside in Hanover County, that fact alone did not require the
trial court to grant Steinberg’s motion to change venue.
"Whether to grant such a motion is within the discretion of
the trial court, and the trial court’s denial of the motion will
not be reversed absent an abuse of that discretion." Virginia
Elec. & Power Co. v. Dungee
, 258 Va. 235, 245, 520 S.E.2d
164, 170 (1999). Nothing in the record supports Steinberg’s bare
contention that a transfer of venue was in the child’s best
interests. We find no abuse of discretion in the trial court’s
decision to retain the matter in the Circuit Court of Henrico
County.

III. Ex parte Communication

Steinberg further contends that the trial judge
engaged in an improper ex parte communication with
Shumaker. In his opinion letter denying Steinberg’s motion to
change venue, the trial judge stated:

I have received your motion and order with
regard to a change of venue. It is my practice not to order a
transfer unless both parties agree.

I understand that Ms. Katherine Steinberg
objects to the change. Therefore I will not order a change in
venue.

Steinberg presented no evidence that the trial
judge had any direct communication with Shumaker or her counsel.
Moreover, the bar against ex parte communication
"arises only when ‘an ex parte communication
relates to some aspect of the [trial].’" Ellis v.
Commonwealth
, 227 Va. 419, 423, 317 S.E.2d 479, 481 (1984)
(holding that the trial judge did not participate in an improper ex
parte communication when he interviewed a juror in
chambers without notifying the defendant). Here, assuming arguendo
that the record proved that the trial judge spoke with Shumaker
or her counsel, the challenged communication was at most
administrative in nature, relating solely to whether the motion
to change venue was opposed. Steinberg has failed to demonstrate
any improper ex parte communication between the
trial judge and Shumaker.

IV. Lack of Subject Matter Jurisdiction

The question of the trial court’s jurisdiction
to hear this case has been raised and addressed before. See,
e.g., Steinberg v. Steinberg, No. 2557-96-2 (Va.
Ct. App. July 15, 1997). We therefore do not address this
question further.

V. Lack of Compelling State Interest

Steinberg contends "[n]o court has ever
determined that the state has a compelling interest in the
instant case," and argues that the trial court erred by
acting without a compelling state interest. This contention lacks
merit. The parties were properly before the circuit court, which
had jurisdiction to resolve issues of child support, custody and
visitation. See, e.g., Code ? 20-107.2. The
case cited by Steinberg, Williams v. Williams, 256 Va. 19,
501 S.E.2d 417 (1998), which arose in the context of grandparents
seeking visitation against the wishes of the parents, is
inapposite to the facts in this case and inapplicable to the
analysis of any pending issues.

VI. Imputation of Income

As the party seeking to modify child support,
Steinberg bore the burden to prove that there had been a material
change in circumstances warranting a reduction in child support.
"Once a child support award has been entered, only a showing
of a material change in circumstances will justify modification
of the support award. The moving party has the burden of proving
a material change by a preponderance of the evidence." Crabtree
v. Crabtree
, 17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993).
The trial court imputed $30,000 in income to Steinberg in its
1993 order of support. Because the trial court previously had
ruled on the question of imputation of income in the context of
child support, the burden to demonstrate a change in
circumstances underlying the court’s existing decision, including
evidence that imputation of income was no longer appropriate,
fell to Steinberg.

Steinberg based his motion on a reduction in
his income. He denied that he had more than $1,000 in annual
income in 1999, although he admitted that he and his new wife
moved into a new home which she purchased for approximately
$270,000; that they regularly took the child on trips to Florida;
that their vacations and "educational, fun trips" with
the child included trips to Disney World, MGM, Epcot, Universal
Studios, Mexico, San Francisco, Los Angeles, Hollywood, New York
City, Daytona Beach and Alexander Springs; and that they took the
child to baseball games and amusement parks. The trial court did
not err when it required Steinberg to bear the burden of
presenting evidence why the trial court should no longer impute
income to him.

VII. Failing to Recalculate Child Support

Steinberg contends that the trial court failed
to consider all current evidence when ruling on his motion to
modify child support. This contention is without merit. The
inquiry into the modification of child support focused on
Steinberg’s alleged reduction in income, the sole ground on which
he based his motion. The trial court was not required to examine
other statutory factors that were not at issue. The burden of
proof remained on Steinberg as the party seeking to modify an
existing child support order. The trial court found that
Steinberg failed to prove a material change in circumstances
warranting a modification, and its decision is supported by
evidence.

VIII. Failing to Follow Statutory
Requirements

Steinberg contends that the trial court failed
to consider all the statutory factors set out in Code
? 20-124.3 when it ruled that he failed to prove a material
change in circumstances warranted a change in custody. We
disagree.

As the party seeking to modify the existing
custody order, Steinberg bore the burden to prove "’(1)
whether there has been a [material] change in circumstances since
the most recent custody award; and (2) whether a change in
custody would be in the best interests of the child.’" Wilson
v. Wilson
, 18 Va. App. 193, 195, 442 S.E.2d 694, 696 (1994)
(quoting Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d
40, 41 (1986)). "In matters concerning custody and
visitation, the welfare and best interests of the child are the
‘primary, paramount, and controlling considerations.’" Kogon
v. Ulerick
, 12 Va. App. 595, 596, 405 S.E.2d 441, 442 (1991)
(citation omitted). The trial court is vested with broad
discretion to make the decisions necessary to safeguard and
promote the child’s best interests, and its decision will not be
set aside unless plainly wrong or without evidence to support it.
See Farley v. Farley, 9 Va. App. 326, 327-28, 387
S.E.2d 794, 795 (1990).

Steinberg bore the burden to present evidence
to the trial court demonstrating that a material change in
circumstances warranted a change in custody and that the change
was in the child’s best interests. The trial court’s order
specifically states that it considered all the statutory factors.
The trial court found that the child continues to do well under
the current custody and visitation arrangement. Evidence supports
the trial court’s decision. We find no error in the trial court’s
decision to deny Steinberg’s motion to change custody.

IX. Failing to Communicate the Basis of the
Decision

Steinberg contends that the trial court failed
to communicate the basis of its decision denying his motion to
modify custody and visitation. This contention is not supported
by the record. The trial court expressed the basis for its
decision in its opinion letter to the parties dated January 24,
2000.

X. Discovery Violations

Steinberg contends that the trial court allowed
Shumaker access to irrelevant materials, including the costs and
dates of his trips with the child, but denied him access to
information relevant to his pending motions. Decisions relating
to discovery generally rest "within the trial court’s
discretion and will be reversed only if the action taken was
improvident and affected substantial rights." Rakes v.
Fulcher
, 210 Va. 542, 546, 172 S.E.2d 751, 755 (1970). There
must be demonstrable prejudice for a reviewing court to find an
abuse of discretion. See id.

As the party seeking a decrease in his child
support payment based upon reduced income, Steinberg placed his
income, assets, and other financial resources as an issue before
the court. We find no error in the trial court’s order requiring
Steinberg to disclose information relating to certain
expenditures, housing, loans, and income.

Our review of the challenged discovery
decisions by the trial court demonstrates that the trial court
granted Shumaker’s motions to quash Steinberg’s requests for
information that was not relevant to his petition for a
modification. Because Steinberg’s petition was based upon changes
in his circumstances, information concerning Shumaker’s income
and expenses were not relevant.

The trial court denied Steinberg’s motion to
compel production of records of Shumaker’s counsel, including fee
arrangements with other clients. Steinberg sought the records to
support his repeated allegations of fraud by counsel.
"Typically, the attorney-client privilege does not extend to
billing records and expense reports." Chaudhry v.
Gallerizzo
, 174 F.3d 394, 402 (4th Cir. 1999).
"’However, correspondence, bills, ledgers, statements, and
time records which also reveal the motive of the client in
seeking representation, litigation strategy, or the specific
nature of the services provided, such as researching particular
areas of law, fall within the privilege.’" Id.
(quoting Clarke v. American Commerce National Bank, 974
F.2d 127, 129 (9th Cir. 1992)). The trial court found no evidence
to support Steinberg’s allegations of fraud in the past. Evidence
gathered at the January 18, 2000 hearing also refuted Steinberg’s
claim that Shumaker and her counsel were perpetrating a fraud. We
therefore find no abuse of discretion in the denial of this
motion to compel.

Steinberg does not allege any prejudice
resulted from the trial court’s denial of his interrogatories
relating to Shumaker’s activities with the child or her
propensity to support his relationship. Steinberg obtained
answers through requests for admissions and cross-examination of
Shumaker during the hearing.

Therefore, in sum, we find no abuse of
discretion on the part of the trial court in its handling of the
parties’ discovery.

XI. Ruling on Orthodontist Expenses and
Failing to Rule on
Other Motions

Steinberg contends that the trial court erred
when it ordered him to pay $405 as his share of a 1997
orthodontic bill because there was no motion attached to
Shumaker’s notice that she would move for payment of the
outstanding debt at the scheduled hearing. Shumaker testified
that she provided Steinberg with a copy of the bill previously
and that a copy was sent to Steinberg with the notice. Steinberg
had an ongoing obligation to pay 36% of the cost of extraordinary
medical and dental expenses. We find no error in the trial
court’s order requiring Steinberg to pay an amount previously due
and owing.

While Steinberg also lists a number of motions
which he claims were never ruled on, our review of the record
demonstrates that the trial court responded to all timely-filed
motions. Moreover, this contention is frivolous. Steinberg argues
that the trial court failed to respond to his Motion for
Modification of Child Support, apparently refusing to view the
trial court’s order of February 8, 2000, denying
"Petitioner’s Motion to reduce child support" as a
dispositive ruling on his motion. The trial court’s failure, if
any, to rule on any of Steinberg’s duplicate and repetitive
filings seeking multiple reconsiderations of the same issues, is
not reversible error.

XII. Attorney’s Fees

An award of attorney’s fees is a matter
submitted to the sound discretion of the trial court and is
reviewable on appeal only for an abuse of discretion. See Graves
v. Graves
, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987).
The key to a proper award of counsel fees is reasonableness under
all the circumstances. See McGinnis v. McGinnis, 1
Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). "’Although
evidence of time expended by counsel and the charges made to the
client is the preferred basis upon which a trial judge can
formulate a reasonable award, it is not the only basis.’" Davis
v. Davis
, 8 Va. App. 12, 17, 377 S.E.2d 640, 643 (1989)
(quoting McGinnis v. McGinnis, 1 Va. App. 272, 277, 338
S.E.2d 159, 162 (1985)). While Steinberg contends that Shumaker
is responsible for this litigation, the record does not support
that contention. Moreover, evidence supports the amount of the
trial court’s award. Therefore, we cannot say that the award was
unreasonable or that the trial judge abused his discretion in
making the award.

In addition, Shumaker moves this Court for
attorney’s fees and costs related to these appeals. We grant the
motion, and remand the matter to the trial court with
instructions to determine and enter an appropriate order.

Accordingly, the decision of the circuit court
is summarily affirmed, and the matter is remanded to the trial
court to enter an award relating to appellate attorney’s fees.

Affirmed and remanded.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, recodifying Code
? 17-116.010, this opinion is not designated for
publication.

[2] Steinberg v. Steinberg, Nos. 1839-91-2,
2036-91-2, 2172-91-2 (Va. Ct. App. Feb. 9, 1993); Steinberg v.
Steinberg
, Nos. 0534-92-2, 1678-92-2 (Va. Ct. App. June 15,
1993); Steinberg v. Steinberg, No. 0971-92-2 (Va. Ct. App.
Dec. 7, 1993); Steinberg v. Steinberg, 21 Va. App. 42, 461
S.E.2d 421 (1995) (Record No. 2111-93-2); Steinberg v.
Steinberg
, No. 0874-95-2 (Va. Ct. App. Mar. 21, 1996); Steinberg
v. Steinberg
, No. 1064-95-2 (Va. Ct. App. Jan. 30, 1996); Steinberg
v. Steinberg
, No. 2315-95-2 (Va. Ct. App. June 18, 1996); and
Steinberg v. Steinberg, No. 2557-96-2 (Va. Ct. App. July
15, 1997).

[3] On July 13, 2000, Steinberg filed with this Court a
motion seeking a stay of execution of the trial court’s order
requiring him to pay attorney’s fees and costs. We deny that
motion.

Scroll To Top