Elaine Anne Musser v. David Robert Musser ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Bray and Senior Judge Hodges
ELAINE ANNE MUSSER
v. Record No. 2389-94-4 MEMORANDUM OPINION *
PER CURIAM
DAVID ROBERT MUSSER MAY 30, 1995
FROM THE CIRCUIT COURT OF
FAIRFAX COUNTY
F. Bruce Bach, Judge
(Gregory L. Murphy; Paul L. Mengel, III; Murphy,
McGettigan, Richards & West, on brief), for appellant.
(Roy J. Baldwin; Anna Hamrick, on brief), for
appellee.
Elaine Anne Musser (mother) appeals the decision of the
circuit court finding her guilty of contempt and deciding other
issues. Mother raises the following issues on appeal: (1)
whether, under the Uniform Child Custody Jurisdiction Act
(UCCJA), the Virginia trial court should have declined to
exercise jurisdiction; (2) whether the trial court lacked
jurisdiction because the matter had not been reinstated in the
circuit court; and (3) whether the trial court abused its
discretion in finding mother in contempt of court. Upon
reviewing the record and briefs of the parties, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Jurisdictional Challenges
Mother has not demonstrated error or an abuse of discretion
on the part of the trial court in exercising jurisdiction over
this matter. While mother and the children have lived in
California since 1986, Virginia was the home state of the
children at the start of the proceedings. David Robert Musser
(father) continues to be domiciled in Virginia. The Virginia
courts have ruled on visitation motions throughout the
intervening period. Therefore, the Virginia circuit court had
1
jurisdiction under the provisions of the UCCJA. Code
§ 20-126(A)(1)(i).
Under Code § 20-130, "[a] court which has jurisdiction . . .
may decline to exercise its jurisdiction . . . if it finds that
is an inconvenient forum . . . and that a court of another state
is a more appropriate forum." Code § 20-130(A). However, the
statute also provides that
[b]efore determining whether to decline or
retain jurisdiction the court may communicate
with a court of another state and exchange
information assuring that jurisdiction will
be exercised by the more appropriate court
and that a forum will be available to the
parties.
Code § 20-130(D). "[B]efore the trial court should defer
jurisdiction to another forum, it should know the identity of
1
The Virginia codification of the UCCJA is found at Code
§§ 20-125 through 20-146.
2
that forum." Mubarak v. Mubarak, 14 Va. App. 616, 622, 420
S.E.2d 225, 228 (1992).
The trial court indicated it was not opposed to considering
a motion to transfer jurisdiction to the California courts.
However, such a suggestion does not warrant the conclusion that
jurisdiction was not properly before the circuit court. While
the children's residence in California may merit a future
determination that Virginia is an inconvenient forum, we cannot
say the trial court abused its discretion in this instance by
refusing to make that determination prior to ruling on father's
rule to show cause for violations of existing court orders.
Similarly, we find unpersuasive mother's contention that the
circuit court lacked concurrent jurisdiction with the district
court until father filed a motion to reinstate the matter in the
circuit court.
A circuit court that transfers any matters to
the juvenile and domestic relations district
court pursuant to Code § 20-79(c) retains the
power, in its discretion, to exercise its
continuing jurisdiction over those matters.
Statutes should not be construed in a manner
that "would . . . enervate [and] impede . . .
the administration of the . . . laws of the
State."
Crabtree v. Crabtree, 17 Va. App. 81, 87, 435 S.E.2d 883, 887
(1993) (citation omitted, emphasis added). Therefore, the
transfer to the district court did not affect the retention of
jurisdiction by the circuit court.
Finding of Contempt
3
Mother asserts that the trial court erred by failing to rule
on her pending motion to reconsider. The written statement of
facts indicates, however, that the motion was "ostensibly denied
by the failure of the Court to rule on it." Mother also asserts
that the evidence was insufficient to support the trial court's
finding of contempt.
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to father as the party
prevailing below. "Where, as here, the court hears the evidence
ore tenus, its finding is entitled to great weight and will not
be disturbed on appeal unless plainly wrong or without evidence
to support it." Martin v. Pittsylvania County Dep't of Social
Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). The trial
court, as the finder of fact, was entitled to determine "[t]he
weight which should be given to evidence and whether the
testimony of a witness is credible." Bridgeman v. Commonwealth,
3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
Based upon the parties' testimony and supporting documents,
including affidavits by the parties' children, the trial court
found mother had refused to allow father to exercise his
previously-ordered visitation rights over the Thanksgiving and
Christmas holidays in 1993. We cannot say this determination was
plainly wrong or without evidence to support it.
Accordingly, the decision of the circuit court is summarily
affirmed.
4
Affirmed.
5