Janet Garrett-Kelly v. Richard A. Kelly, II ( 2017 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Senior Judge Haley
UNPUBLISHED
JANET GARRETT-KELLY
MEMORANDUM OPINION*
v. Record No. 1541-16-2 PER CURIAM
APRIL 4, 2017
RICHARD A. KELLY, II
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
Nathan C. Lee, Judge
(Jessica B. Mauger, on brief), for appellant. Appellant submitting on
brief.
No brief for appellee.
(Paul S. Roskin; Vergara & Associates, on brief), Guardian ad
litem for minor child. Guardian ad litem for minor child
submitting on brief.
Janet Garrett-Kelly (mother) appeals an order that dismissed her appeals from the City of
Hopewell Juvenile and Domestic Relations District Court (the JDR court). Mother argues that the
circuit court erred by dismissing her appeal from the JDR court because “it did so without taking
any evidence in an appeal de novo.” Upon reviewing the record and briefs of the parties, we affirm
the decision of the trial court.
BACKGROUND
“On appeal, we view the evidence in the light most favorable to . . . the party prevailing
below.” D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 335, 610 S.E.2d 876, 882 (2005)
(citations omitted).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Mother and Richard A. Kelly, II (father) filed petitions for custody, visitation, child
support, and spousal support in the JDR court. On October 21, 2015, mother, father, mother’s
guardian ad litem, and the child’s guardian ad litem appeared before the JDR court. The JDR
court awarded temporary joint legal custody to the parties and primary physical custody of the
child to father. It also awarded mother reasonable visitation, but the child had to remain in
Virginia. Lastly, the JDR court ordered mother to undergo a psychiatric evaluation and file the
report with the court. The case was continued to February 17, 2016.
On February 17, 2016, father, mother’s guardian ad litem, and the child’s guardian ad
litem appeared before the JDR court. Mother was not present. The JDR court entered its final
orders in the matter. It awarded sole legal and physical custody of the parties’ minor child to
father and awarded visitation, as agreed, to mother. Mother was prohibited from removing the
child from Virginia. The JDR court dismissed mother’s petition for spousal support and ordered
mother to pay $167.85 per month for child support and $65 per month toward the arrears.
Mother appealed the JDR court orders.
On June 1, 2016, mother, father, mother’s guardian ad litem, and the child’s guardian ad
litem appeared before the circuit court. The circuit court took judicial notice that on October 21,
2015, the JDR court ordered mother to undergo a psychiatric evaluation, and despite the lapse of
seven months since the entry of the order, “no psychiatric evaluation report had been prepared
and filed with the court or otherwise presented to counsel.” Based on these facts, as well as
comments from the child’s guardian ad litem, and the court’s observations of mother, the circuit
court held that it could not “appropriately consider Mrs. Kelly’s appeal of the Juvenile and
Domestic Relations Court’s order granting full legal and physical custody of the minor child to
Mr. Kelly, without having first had the opportunity to review a psychiatric evaluation of
Mrs. Kelly.” The matter was continued to August 9, 2016 in order for mother to complete and
-2-
file the evaluation. Furthermore, the circuit court held that if the psychiatric evaluation was not
completed and filed with the court by August 9, then it would dismiss mother’s appeal. On June
29, 2016, the circuit court entered an order memorializing its rulings. Mother did not object.
On August 9, 2016, the matter was back before the circuit court. The circuit court noted
that a psychiatric report had not been filed. In light of its previous ruling, the circuit court
dismissed mother’s appeal. On August 19, 2016, the circuit court entered an order
memorializing its ruling and remanded the case to the JDR court. Mother’s guardian ad litem
endorsed the order as “Seen and objected to.” This appeal followed.
ANALYSIS
Mother argues that the circuit court erred in dismissing her appeals because the circuit court
did not conduct a de novo proceeding. She contends the circuit court violated her due process rights
when it dismissed the appeals without hearing any evidence. She asserts that the circuit court
incorrectly shifted the burden to her when it took judicial notice of the JDR court order requiring her
to get a psychiatric evaluation.
Mother did not note any objection to the circuit court order entered June 29, 2016, and she
simply endorsed the August 19, 2016 order as “Seen and objected to.” A statement of “seen and
objected to” is insufficient to preserve an issue for appeal. Lee v. Lee, 12 Va. App. 512, 515,
404 S.E.2d 736, 738 (1991) (en banc).
“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.” Rule 5A:18.
Mother is raising her arguments for the first time on appeal. We “will not consider an
argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26
Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “The purpose of Rule 5A:18 is to allow the trial
-3-
court to correct in the trial court any error that is called to its attention.” Lee v. Lee, 12 Va. App.
512, 514, 404 S.E.2d 736, 737 (1991) (en banc).
Since mother did not preserve her arguments, this Court will not consider her assignment
of error.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is affirmed.
Affirmed.
-4-