                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia


RUSSELL EDWARD PEVERELL
                                              MEMORANDUM OPINION * BY
v.   Record No. 0060-01-4                      JUDGE G. STEVEN AGEE
                                                   APRIL 23, 2002
KAREN FAYE (CONDER) ESKEW


        FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                    Alfred D. Swersky, Judge

          Timothy B. Beason (Law Offices of Gwendolyn
          Jo M. Carlberg; Shoun & Bach, on briefs),
          for appellant.

          (Paul A. Scott; Madigan & Scott, Inc., on
          brief), for appellee. Appellee submitting
          on brief.


     Russell E. Peverell (father) appeals orders of the

Alexandria Circuit Court denying his motions for the appointment

of a guardian ad litem for his minor daughter, a restraining

order, the modification of child support, an award of attorney's

fees and a decree requiring the parties to submit to

pre-docketing review and approval of their future motions.        For

the following reasons we affirm in part and reverse in part.

                            I.   BACKGROUND

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, only those facts necessary to a disposition of this

appeal are recited.

     Father and Karen C. Eskew (mother) were divorced in 1990

and have been engaged in some form of litigation ever since.

Mother was granted physical custody of the parties' two minor

children (Kate and Ryan).   The children have lived for several

years with mother and her second husband (Mr. Eskew) and their

two children in California.    A complaint was filed with the

California Department of Child and Family Services in June 2000,

alleging Mr. Eskew had sexually abused Kate.   Upon learning of

the complaint in September 2000, father filed a motion with the

Alexandria Circuit Court on October 4, 2000, requesting, inter

alia, an order awarding father sole legal and physical custody

of Ryan, a restraining order to require mother to forbid Mr.

Eskew from being in the presence of the parties' children, 1 and

the appointment of a guardian ad litem for Kate.

     On October 24, 2000, by an agreed order, father was awarded

physical custody of Ryan.   Also on that day, the trial court

heard evidence with regard to the motion for a guardian ad litem

for Kate and whether a restraining order regarding Mr. Eskew

should be issued.   The trial court orally granted the motion to

appoint a guardian ad litem for Kate and requested investigative


     1
       We refer to the requested order as a restraining order
herein even though it would be directed to mother to cause the
restraint of Mr. Eskew and not to Mr. Eskew directly.

                              - 2 -
information regarding the circumstances surrounding the need for

a restraining order.   On December 13, 2000, the trial court

entered an order denying, without prejudice, the request to

appoint a guardian ad litem for Kate and denied the motion for a

restraining order against mother as to Mr. Eskew. 2

     Father also filed a motion to modify child support in light

of the change in Ryan's custody.      The issue of child support and

the remaining issues from the October 4, 2000 motion were

considered by the trial court on December 18, 2000.

     On that day, the trial court heard testimony regarding

mother's income.   Mother testified that she and Mr. Eskew (from

whom she was then separated) maintain a joint checking account

in which both their payroll checks are deposited.     Mother

testified that Mr. Eskew had agreed to pay her "guideline"

spousal support; however, she testified that she had not

received any since the separation began.     The record does not

contain either a written agreement executed by mother and Mr.

Eskew regarding spousal support or a court order directing

payment of spousal support.


     2
       On November 28, 2000, the trial court, in a letter
opinion, denied the request for a restraining order, stating
"the courts in California are best equipped to deal with the
particular aspects of this case arising out of the alleged
conduct of [mother's estranged husband]." A copy of a November
2, 2000 order of the Los Angeles County, California Superior
Court was submitted to the trial court which restrains Mr. Eskew
from coming within 100 yards of mother, her residence or the
children's school.

                              - 3 -
     Mother further testified that Mr. Eskew was paying most of

her household and living expenses, but these payments were not

in lieu of spousal support.       Mother also testified that while

she had previously been employed full-time, she was currently

employed only part-time due to stress and the need to be home

with the children.    After hearing the parties' testimony and

reviewing the evidence, the trial court stated from the bench

regarding mother's employment:

           I find specifically that [mother] is not
           voluntarily underemployed and that there is
           no reason to attribute or impute any other
           income . . . .

                  *     *     *      *    *    *    *

           [S]he's not voluntarily under-employing for
           purposes of reducing any child support
           obligation she may have had.

In addition, the court, sua sponte, announced:

           I think there needs to be in this case a
           moratorium on Court hearings. What I'm
           going to then order is that there will be no
           further matter put on this Court's docket
           without the express consent of the Court
           based on a written pleading filed by
           whichever party seeks to put it back on,
           absent some true emergency . . . .

Accordingly, the trial court entered a decree on December 18,

2000, requiring father to pay mother $268 per month for Kate's

support.   No attorney's fees were awarded to either party.     The

decree also provided:

           No further matters shall be put on this
           court's docket without the expressed consent
           of this court based upon a written pleading
                              - 4 -
            filed by whichever party seeks to put the
            matter on the docket, absent some true
            emergency.

                              II.   ANALYSIS

                       A.   THE RESTRAINING ORDER

     Father contends the trial court erred in failing to grant

an order requiring mother to restrict Mr. Eskew's access to Kate

and Ryan.   We disagree.

     Father's assignment of error regarding his son is moot as

father now has physical custody of Ryan.        As to Kate, we note

that a trial court has discretion in determining whether to

issue a restraining order.     In this case, it was not error to

deny the motion when there was evidence the California courts

were overseeing the matter and that mother was limiting her

estranged husband's contact with the daughter.        Moreover, the

trial court had no jurisdiction over Mr. Eskew and no power,

through mother or otherwise, to compel any particular action by

a California court.    Credible evidence supports the trial

court's decision, and we will not reverse it.

                  B.   GUARDIAN AD LITEM APPOINTMENT

     On appeal, father also contends the trial court erred in

failing to appoint a guardian ad litem for Kate.         Again, we

disagree.

     Father's motion did not request custody of Kate, but only

that a guardian ad litem "determin[e] what would be in Kate's

best interest with regard to custody."         While the trial court
                               - 5 -
indicated from the bench at one point that a guardian ad litem

would be appointed, no order was entered to do so.

Subsequently, no motion for change of custody having been filed,

the trial court determined that the appointment of a guardian ad

litem was not then warranted.     We do not find the trial court's

decision to be erroneous.

     The established rule is that a guardian ad litem may be

appointed after a trial judge, who is considering any legal

proceeding in which the rights of a minor are involved, makes a

preliminary finding that the best interests of the child require

such appointment.   See Verrocchio v. Verrocchio, 16 Va. App.

314, 317, 429 S.E.2d 482, 484 (1993).    No finding was ever made

by the trial court that Kate's best interest required the

appointment of a guardian.     Further, as there were no present

issues before the trial court in which the rights of the

daughter were involved, the trial court did not abuse its

discretion in failing to appoint a guardian ad litem for Kate.

                          C.   CHILD SUPPORT

                     1.   MOTHER'S GROSS INCOME

     Father also contends the trial court erred in applying the

statutory provisions of Code §§ 20-108, 20-108.1 and 20-108.2,

which resulted in the trial court failing to include all of

mother's gross income in its child support determination.    Upon

review, we remand this matter for further findings by the trial


                               - 6 -
court as the record is inadequate to permit appellate review on

this issue.

     "Decisions concerning . . . [child] support rest within the

sound discretion of the [circuit] court . . . . "     Calvert v.

Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994).    "The

trial court's decision, when based upon credibility

determinations made during an ore tenus hearing, is owed great

weight and will not be disturbed unless plainly wrong or without

evidence to support it."   Douglas v. Hammett, 28 Va. App. 517,

525, 507 S.E.2d 98, 102 (1998).

     After finding a change in material circumstances, as the

trial court did in this case, the starting point for determining

the child support obligation of a party at a modification

hearing, is to compute the presumptive amount using the

guidelines and schedule found in the Code.   See Watkinson v.

Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473 (1991).     Code

§ 20-108.2, the statutory guideline for determining the

presumptive amount of child support, is based on each party's

gross income.   "Gross income" is defined, in pertinent part, as:

"[A]ll income from all sources, and shall include . . . spousal

support . . . ."   Code § 20-108.2(C).

     Neither a written agreement by the parties nor a court

order, requiring the payment of spousal support to mother from

Mr. Eskew, is in the record.   However, father argues the expense

payments made by Mr. Eskew to mother were nonetheless de facto
                            - 7 -
spousal support and should be part of mother's gross income as

"income from all sources."    While mother denied, without

contradiction, that the expense payments were in lieu of spousal

support, she affirmed the amount and types of such payments.

     Upon review of the record, we conclude, by inference, that

the trial court decided not to include the payments on behalf of

mother by Mr. Eskew in her gross income as "income from all

sources," but there is no factual finding by the trial court as

to why these payments were excluded.    There must be a proper

foundation in the record to support the granting of an award and

the amount of the award.     See, generally, Stumbo v. Stumbo, 20

Va. App. 685, 693, 460 S.E.2d 591, 595 (1995).    We are thus

unable to determine from the record whether the trial court

erred in its calculation of child support.

     As we cannot accomplish an appellate review of the trial

court's decision without its factual determination as to whether

and why Mr. Eskew's payments to mother should be included or

excluded as part of her gross income for purposes of determining

child support, we must remand this issue for findings of fact by

the trial court.

                     2.    IMPUTATION OF INCOME

     Father also challenges the trial court's refusal to impute

income to mother whom father alleged was voluntarily

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


                              - 8 -
     The party seeking to impute income has the burden of proof.

Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993).

The decision to impute income is within the sound discretion of

the trial court, and its refusal to impute income will not be

reversed unless plainly wrong or unsupported by the evidence.

Saleem v. Saleem, 26 Va. App. 384, 393, 494 S.E.2d 883, 887

(1998).

     On appeal, the evidence is viewed in the light most

favorable to mother, the prevailing party below.   See Cook v.

Cook, 18 Va. App. 726, 731, 446 S.E.2d 894, 896 (1994).    In this

case, credible reasons support the trial court's decision that

imputation of income was not appropriate, and reflect no abuse

of discretion by the trial court.

     It is uncontested that mother was employed previously in a

full-time position and chose to resign that position without

being discharged.   Father met his burden of showing mother was

underemployed.   Mother was then burdened with producing evidence

to explain why her underemployment was not "voluntary."

Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119

(1991).

     Viewing the evidence in the light most favorable to mother,

we find credible evidence to support the finding that mother met

her burden.   Mother provided the trial court with cogent reasons

for being employed part-time at the time the support

determination was made.   Her reasons included overseeing Ryan's
                             - 9 -
recovery from an automobile accident at the start of the new

school year, which was followed by making time and arrangements

for Kate's counseling, dealing with the multiple investigations

by child protective services each time father filed a complaint,

and recovering from her own medical problems.    The trial court

found that mother's given reasons provided sufficient

justification to be employed only part-time.    Therefore, we find

no error in the trial court's decision that the evidence did not

warrant an imputation of income to mother.     See, generally,

Hiner v. Hadeed, 15 Va. App. 575, 425 S.E.2d 811 (1993).

                        D.   ATTORNEYS' FEES

     Father also argues that the trial court erred by denying

him attorney's fees.   We disagree again.

     "An award of attorney fees is discretionary with the court

after considering the circumstances and equities of the entire

case and is reviewable only for an abuse of discretion."     Gamer

v. Gamer, 16 Va. App. 335, 346, 429 S.E.2d 618, 626 (1993).

"The key to a proper award of counsel fees is reasonableness

under all of the circumstances revealed by the record."

Ellington v. Ellington, 8 Va. App. 48, 58, 378 S.E.2d 626, 631

(1989).   Based on the number of issues involved and the

respective abilities of the parties to pay, we cannot say that

the trial court abused its discretion in ordering the parties to

bear their own attorney's fees.   The decision to deny father

attorney's fees is affirmed.
                            - 10 -
                     E.   PRE-DOCKETING REVIEW

     Lastly, father contends on appeal that the trial court

violated his due process rights when it ordered that no future

matters between the parties be placed on the court's docket for

hearing unless first approved by the court.      While the decree

does not bar the filing of pleadings, a new matter, excluding

those arising in "some true emergency," "won't be put on this

court's docket without express[] consent [of the trial court]."

Father contends the trial court's implementation of this

pre-docketing review violates his due process rights.     We agree

with father.

     We are cognizant of the trial court's power and authority

to control its docket and will not reverse on appeal a trial

court's decision related to the control of its docket unless

there is a showing of an abuse of discretion and prejudice.

See, generally, Mills v. Mills, 232 Va. 94, 348 S.E.2d 250

(1986).   Generally, "[t]he determination whether a trial court

has abused its discretion is fact-specific."      Walsh v. Bennett,

260 Va. 171, 175, 530 S.E.2d 904, 907 (2000).     However, in

assessing the propriety of the imposition of a particular

decision, we may also take into account the context in which the

decision was made and any policy considerations that might be

pertinent to the imposition of that decision.      See, e.g., id. at

176, 530 S.E.2d at 907 (holding that, in addition to

constituting an abuse of discretion on the facts of the case,
                            - 11 -
the pretrial sanction imposed by the trial court was also

inappropriate because it deprived the plaintiff of a "day in

court").   Under the facts of this case, the parties were denied

due process by the trial court when it imposed the pre-docketing

review requirement.

     No "State shall deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws."   U.S.

Const. amend. XIV, § 1.   "[N]o person shall be deprived of his

life, liberty, or property without due process of law."   Va.

Const. art. I, § 11.

           "The fourteenth amendment, in declaring that
           no State 'shall deprive any person of life,
           liberty or property without due process of
           law, nor deny to any person within its
           jurisdiction the equal protection of the
           laws,' undoubtedly intended, not only that
           there should be no arbitrary deprivation of
           life or liberty or arbitrary spoliation of
           property, but that equal protection and
           security should be given to all under like
           circumstances in the enjoyment of their
           personal and civil rights; that all persons
           should be equally entitled to pursue their
           happiness and acquire and enjoy property;
           that they should have like access to the
           courts of the country for the protection of
           their persons and property, the prevention
           and redress of wrongs, and the enforcement
           of contracts; and that no impediment should
           be interposed to the pursuits of anyone
           except as applied to the same pursuits by
           others under like circumstances . . . ."

C. I. T. Corp. v. Commonwealth, 153 Va. 57, 63-66, 149 S.E. 523,

525 (1929) (quoting Barbier v. Connolly, 113 U.S. 27, 31 (1884))

                            - 12 -
(emphasis added).   "Due process requires that, before a court

may deprive a party of a property or liberty interest, the party

must receive notice and the opportunity to be heard."     Parish v.

Spaulding, 26 Va. App. 566, 576, 496 S.E.2d 91, 96 (1998)

(citing Williams v. Virginia Elec. & Power Co., 18 Va. App. 569,

576-77 and n.5, 445 S.E.2d 693, 698 and n.5 (1994)).

     That portion of the December 18, 2000 order requiring

pre-docketing review was raised and implemented by the trial

court sua sponte.     Neither party requested this action, and no

prior notice was given to the parties that the trial court

intended to so act.    The trial court heard no argument prior to

issuing its ruling.    There is nothing in the record before us

evidencing that either party has abused its right to access the

trial court's docket and warranting the pre-docketing review.

For example, there is no showing of abuse of process or the

filing of frivolous pleadings. 3   Because the record lacks

evidence of the due process procedural requirements, the trial


     3
       For examples of where there has been an imposition of
restrictions on the right to access a court, see Shief v.
Kakita, 517 U.S. 343 (1996) (after multiple frivolous filings by
the appellant, the Court directed "the Clerk not to accept any
further petitions for certiorari from [appellant] in noncriminal
matters unless he pays the docketing fee required by [Supreme
Court] Rule 38 and submits his petition in compliance with
[Supreme Court] Rule 33.1"); Jones v. ABC-TV, 516 U.S. 363
(1996) (same); Attwood v. Singletary, 516 U.S. 297 (1996)
(same); Brock v. Angelone, 105 F.3d 952, 954-55 (4th Cir. 1997)
(after multiple frivolous filings by the appellant, appellant
enjoined from filing any further civil appeals until monetary
sanctions are paid, and unless a district court judge certifies
that his claim is not frivolous).
                            - 13 -
court's sua sponte order, which places barriers upon the

parties' full access to the court is, therefore, contrary to

basic due process and requires reversal.    In so holding, we make

no judgment as to whether pre-docketing review may be justified

on the merits of this case, provided the parties are first

accorded the basic rights of notice and the opportunity to be

heard.

     Accordingly, we reverse and remand for further findings of

fact as to the issue of whether Mr. Eskew's payments to mother

are to be included or excluded from her gross income when

calculating guideline child support; and we reverse and vacate

that portion of the December 18, 2000 order which bars the

parties from access to the court's docket without prior court

approval.   All other decisions by the trial court are hereby

affirmed.

                                                  Affirmed, in part;
                                     reversed and remanded, in part;
                                       reversed and vacated in part.




                            - 14 -
