Murray L. Steinberg v. Katherine T. Steinberg ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
MURRAY L. STEINBERG
MEMORANDUM OPINION *
v. Record No. 2557-96-2 PER CURIAM
JULY 15, 1997
KATHERINE T. STEINBERG
FROM THE CIRCUIT COURT OF
HENRICO COUNTY
L. A. Harris, Jr., Judge
(Murray L. Steinberg, pro se, on briefs).
(Murray J. Janus; Bremner & Janus, on
brief), for appellee.
Murray L. Steinberg (father) appeals the decision of the
circuit court denying his motion to modify the visitation
schedule shared with Katherine T. Steinberg Shumaker (mother).
In a previous appeal, we remanded this matter to the trial court
for it to hold an evidentiary hearing. See Steinberg v.
Steinberg, Record No. 2315-95-2 (Va. Ct. App. June 18, 1996). In
this appeal, father contends that the circuit court (1) lacked
subject matter jurisdiction; (2) erred in denying father's
recusal motion; (3) denied father and daughter due process and
equal protection of the law; (4) violated the First Amendment
rights of father and daughter; (5) erred in finding no
substantial change in circumstances; (6) erred in failing to
consider the statutory factors set out in Code § 20-124.3; (7)
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
erred in failing to consider Code § 20-124.2; (8) caused the
child to be "abused or neglected" under Code § 16.1-228; and (9)
violated Rule 5A:8 by relying upon the hearing transcript rather
than father's proposed written statement of facts. 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.
Issue 1
Father once again raises the issue whether the circuit court
had subject matter jurisdiction to initially decide custody. The
initial custody decision was appealed and affirmed. See
Steinberg v. Steinberg, Record Nos. 1839-91-2, 2036-91-2,
2172-91-2 (Va. Ct. App. Feb. 9, 1993). Father's current
challenge to the circuit court's jurisdiction rests on
allegations of fraud and factual determinations in connection
with mother's divorce action filed in the circuit court. Among
other allegations, father contends that there was no cause
pending in the circuit court because mother's bill of complaint
was flawed. However, those challenges were not raised at the
time of the initial appeal.
Generally, a judgment or decree rendered by a
court having jurisdiction over the parties
and subject matter must be challenged by
direct appeal and cannot be attacked
collaterally. A party may, however, assail a
void judgment at any time, by direct or
collateral attack. Although a judgment
obtained by "extrinsic fraud" is void and,
therefore, subject to direct or collateral
attack, a judgment obtained by "intrinsic
fraud" is merely voidable and can be
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challenged only by direct appeal or by a
direct attack in an independent proceeding.
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"Intrinsic fraud" includes perjury, use
of forged documents, or other means of
obscuring facts presented before the court
and whose truth or falsity as to the issues
being litigated are passed upon by the trier
of fact. A collateral attack on a judgment
procured by intrinsic fraud has been deemed
not warranted because the parties have the
opportunity at trial through
cross-examination and impeachment to ferret
out and expose false information presented to
the trier of fact. When a party discovers
that a judgment has been obtained by
intrinsic fraud, the party must act by direct
attack or appeal to rectify the alleged wrong
and cannot wait to assail the judgment
collaterally whenever it is enforced.
Peet v. Peet, 16 Va. App. 323, 326-27, 429 S.E.2d 487, 490 (1993)
(citations omitted). Father's challenge to the subject matter
jurisdiction of the circuit court is based upon allegations of
intrinsic fraud. Father cannot make that challenge by collateral
attack.
Issue 2
The recusal decision is left to the sound discretion of the
trial judge. See Deahl v. Winchester Dep't. of Social Servs.,
224 Va. 664, 672-73, 299 S.E.2d 863, 867 (1983). The trial judge
stated that he could give appellant a fair hearing. Upon
reviewing the record, we find no abuse of discretion in the trial
judge's decision to deny father's motion to recuse.
Issue 3
Father's allegation that he was denied due process in the
custody determination on April 21, 1991 is without merit. The
record demonstrates that mother's motion to quash father's
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interrogatories and requests for admission was timely received.
Father also argues that the trial court denied him due
process and/or equal protection of the law by not ruling on his
motion for a change in the parenting arrangements, custody or
transportation of the child; not allowing him to present evidence
on his motion for recusal; and not swearing him in as a witness
prior to his testimony.
A custody determination was not before the court. The
remand from this Court concerned a visitation dispute. The trial
court entertained father's arguments on that issue.
Father cites to no statutory or case law, and we know of
none, that requires a trial court to hear evidence on a recusal
motion.
Finally, the transcript of the evidentiary hearing clearly
states that father was "duly sworn" prior to his testimony.
Having considered father's additional allegations that he
was denied due process and equal protection of the law, we find
those allegations without merit.
Issue 4
Father contends that the current custody arrangement
unconstitutionally impinges on his freedom of religion. There is
no evidence in the record that the child's exercise of religion
is impeded or impaired by the custody arrangement. On the
contrary, the record reflects that father has been able to expose
the child to religious training through his visitation on
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alternative weekends and Jewish holidays. Moreover, in the order
from which father appeals, the court granted a modification of
father's regular Tuesday afternoon visitations so that the child
could attend religious school, as father requested. The trial
court found no evidence that mother was interfering with the
daughter's exposure to Judaism. Father's challenge to the
current custody arrangements on First Amendment grounds is not
supported by the record.
Issues 5 and 6
"In matters concerning custody and visitation, the welfare
and best interests of the child are the 'primary, paramount, and
controlling consideration[s].'" Kogon v. Ulerick, 12 Va. App.
595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). In
considering a petition to change child custody, a trial court
applies a two-part test to determine "(1) whether there has been
a [material] change of circumstances since the most recent
custody award; and (2) whether a change in custody would be in
the best interests of the child." Visikides v. Derr, 3 Va. App.
69, 70, 348 S.E.2d 40, 41 (1986).
[D]espite changes in circumstances, there can
be no change in custody unless such change
will be in the best interests of the
children. The second prong, then, is clearly
the most important part of the two-part test.
It underscores the importance we place upon
securing the best interests of children whose
interests, in the final analysis, must be
protected by the courts.
Keel v. Keel, 225 Va. 606, 612, 303 S.E.2d 917, 921 (1983).
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The trial court received the evidence presented by the
parties, including father's evidence challenging the quality of
the child's current school and day care, and heard the testimony
of the witnesses. The transcript demonstrates that the court
allowed father to present relevant evidence concerning changed
circumstances. The court concluded however, that, with the
exception of an extended visit on Tuesdays for religious school,
a change in the current custody arrangements was not warranted.
The evidence supports the trial court's conclusions, and, as
noted below, it is clear that the decision was made with the best
interests of the child as the foremost concern.
While father contends that the court failed to consider the
child's best interests, the record demonstrates the opposite.
The court remarked on how well the child continues to function,
despite the numerous custody hearings. The court noted that it
"has set what it feels is the best visitation for the child." It
also noted that
[w]e've been through [what would make the
parents work better together] a number of
times and the Court has set what it feels to
be the best interest of the child. And I
would have to say from the results things are
not going particularly bad at this particular
time as far as [the child] is concerned.
That's my only concern.
In fact, the court found that the child "continues to do
extremely well." Therefore, we find no evidence that the trial
court failed to consider the best interests of the child, as
required under Code § 20-124.3.
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Issue 7
The visitation arrangement allowed the parties equal time
with the child. Under the appealed order, father was granted an
extension of his Tuesday visitations. Father's argument that the
court's decision violated Code § 20-124.2 is without merit.
Issue 8
The trial court found that father's contentions that the day
care and elementary school placed the child at risk were
unsupported by the evidence. The court noted that the child
continued "to do extremely well" in her current arrangement. The
mere fact that the day care may care for some dysfunctional
children, or that the elementary school near father's home had
higher standardized test scores than the child's current school,
does not mean that the child is an abused or neglected child
within the meaning of Code § 16.1-228.
Issue 9
Father timely filed a proposed Written Statement of Facts.
Mother objected to the statement and filed a transcript of the
hearing. The trial court ruled that the transcript of the
hearing constituted the Statement of Facts. Rule 5A:8 allows the
trial judge to make corrections, additions, and certifications of
the manner in which the record is incomplete. We find no error
in the trial court's decision to rely upon the hearing transcript
rather than father's proposed written statement. See White v.
Morano, 249 Va. 27, 452 S.E.2d 856 (1995).
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Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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