Joseph E. Finley, Jr. v. Shirley J. Travis ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia
JOSEPH E. FINLEY, JR.
MEMORANDUM OPINION * BY
v. Record No. 3060-97-2 JUDGE JERE M. H. WILLIS, JR.
OCTOBER 6, 1998
SHIRLEY J. TRAVIS
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
S. Keith Barker (S. Keith Barker, P.C., on
brief), for appellant.
No brief or argument for appellee.
The trial court was confronted with unrefuted evidence that
the child's mother and her current husband have espoused radical
social and political philosophies, that they have stated their
repudiation of the social, political and legal values of the
United States, that they have endeavored through the course of
this litigation to frustrate the continuation of a plainly
wholesome relationship of the child with her natural father, that
they sought to remove the child to Ghana, a nation that is not a
signatory to the international agreements that would permit
continued jurisdiction over the child by the trial court and a
nation that cannot provide the medical, health, and educational
facilities or general security that would be afforded the child
in this country, that employment information given by the mother
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and her present husband to the trial court was false, and that
the mother and her present husband could provide the trial court
with no credible information concerning their employment or
residential prospects, or the child's educational prospects, in
Ghana. The trial court was confronted with evidence that the
child has, in the Commonwealth, not only her father, but a large
number of family members, who occupy responsible and respected
positions in their communities, a family that would cooperate to
afford the child a wholesome and desirable context in which to
live and thrive.
Notwithstanding the foregoing plain and convincing evidence,
the trial court ruled that the child's best interests would be
served by her continued custody with her mother, her continued
cohabitation with her half-siblings, and by the cultural
experience of living in Ghana and authorized her removal to
Ghana. We hold this ruling to be an abuse of discretion. It
permits the removal of the child to a country that does not
recognize the continuing jurisdiction of the courts of this
Commonwealth and nation. See Johnson v. Johnson, 26 Va. App.
135, 150-51, 493 S.E.2d 668, 675 (1997). It removes the child
from the wholesome context of her life and family in the
Commonwealth. See Bostick v. Bostick-Bennett, 23 Va. App. 527,
534, 478 S.E.2d 319, 322 (1996). It exposes her to the hazards
of an unstable social, political and economic environment and to
an inferior educational and medical environment.
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The trial court recognized the questionability of its
ruling. For that reason, it forbade the removal of the child
from its jurisdiction pending appeal and took the additional
precaution of requiring that the child's passport be lodged in
its clerk's office. In defiance of the staying provision of the
ruling, the mother and her husband fraudulently removed the child
to Ghana. The staying provision was central to the trial court's
ruling and was an indispensable element of that ruling. By
violating and defeating that provision, the mother has rendered
the ruling a practical nullity.
Because we hold the trial court's ruling to be an abuse of
discretion and because we find that the mother's misconduct has
nullified the practical efficacy of that ruling, we reverse the
judgment of the trial court and remand this case for further
proceedings.
Reversed and remanded.
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