Dwain Alexander, II v. Monique Allen ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Powell and Alston
Argued at Chesapeake, Virginia
DWAIN ALEXANDER, II
MEMORANDUM OPINION * BY
v. Record No. 1680-09-1 CHIEF JUDGE WALTER S. FELTON, JR.
FEBRUARY 23, 2010
MONIQUE ALLEN
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Louis R. Lerner, Judge
Kenneth B. Murov for appellant.
Roy H. Lasris (Roy H. Lasris & Associates, P.C., on brief), for
appellee.
Dwain Alexander, II (“father”) appeals an order of the Circuit Court of the City of Hampton
(“trial court”) awarding joint legal custody of A.B. to father and mother, Monique Allen (“mother”).
Father argues that the trial court erred in (1) failing to communicate the basis of its decision as
required by Code § 20-124.3; (2) failing to follow the guardian ad litem’s recommendations;
(3) failing to consider that he would be unable to exercise his visitation rights without interfering
with A.B.’s education; and (4) denying his motion to vacate the order of April 22, 2009 and to
reconsider its custody and visitation decision. Father also seeks an award of attorney’s fees on
appeal. On brief and at oral argument, mother conceded that the trial court failed to comply with
Code § 20-124.3. We conclude from our review of the record on appeal that the trial court failed to
comply with Code § 20-124.3 in communicating the basis of its custody and visitation decision to
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
the parties. 1 Accordingly, we reverse the judgment of the trial court and remand for further
proceedings consistent with this opinion.
I. ANALYSIS
Because the parties are fully conversant with the record in this case, we recite only those
facts and incidents of the proceedings as are necessary to the analysis. Mother and father, who were
engaged but never married, are the parents of A.B., age four at the time of the trial court proceeding.
On January 28, 2009, the trial court conducted a de novo custody and visitation hearing relating to
A.B. It heard testimony from the parties and the child’s court-appointed guardian ad litem. Both
parties submitted proffers addressing their individual views of the best interests of A.B. The trial
court announced its decision regarding A.B.’s custody and visitation in an opinion letter dated
January 30, 2009, which provided:
[A]fter considering the mandatory previsions [sic] of [Code
§] 20-124.3 . . . and after considering the testimonies of the
witnesses, the parties, the recommendation of the guardian ad litem
and the best interest of the child, the Court does Order that the joint
legal custody of the child shall be with the father . . . and the mother.
The trial court awarded each parent alternating physical custody of A.B., with the non-custodial
parent awarded visitation days, until June 30, 2010, when physical custody would remain with
mother. The trial court entered its final order regarding custody and visitation on April 22, 2009.
On April 30, 2009, father moved to vacate the April 22, 2009 order and asked the trial court
to reconsider its custody and visitation award. After hearing from the parties, the trial court denied
father’s motion. This appeal followed.
1
Because “an appellate court decides cases ‘on the best and narrowest ground
available,’” we need not decide the remaining questions presented in this case. Luginbyhl v.
Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (en banc) (quoting Air Courier
Conference v. Am. Postal Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring)).
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A. Code § 20-124.3
Father asserts on appeal, and mother concedes, that the trial court erred by not
communicating the basis of its custody and visitation award of A.B. to the parties as required by
Code § 20-124.3. We agree.
“Code § 20-124.3 lists ten factors a trial court must consider when deciding the best
interests of a child for determining custody and visitation of a child. The statute concludes by
directing that the trial court ‘communicate to the parties the basis of [its] decision either orally or
in writing.’” Artis v. Jones, 52 Va. App. 356, 363, 663 S.E.2d 521, 524 (2008) (quoting Code
§ 20-124.3).
While communicating the “basis” of the decision does not rise to the
level of providing comprehensive findings of fact and conclusions of
law, it does mean that the trial court must provide more to the parties
than boilerplate language or a perfunctory statement that the statutory
factors have been considered. “The trial court must provide a
case-specific explanation (one that finds its contextual meaning from
the evidence before the court) of the fundamental, predominating
reason or reasons for the decision.” The statute requires “an express
communication to the parties of the basis for the decision.”
Lanzalotti v. Lanzalotti, 41 Va. App. 550, 555, 586 S.E.2d 881, 883 (2003) (quoting Kane v.
Szymczak, 41 Va. App. 365, 373, 585 S.E.2d 349, 353 (2003)).
Applying this standard, we hold the trial court’s statement, “after considering the
mandatory previsions [sic] of [Code §] 20-124.3 . . . and after considering the testimonies of the
witnesses, the parties, the recommendation of the guardian ad litem and the best interest of the
child,” failed to meet the requirements of Code § 20-124.3 requiring it to provide case specific
reasons for its custody and visitation award. Accordingly, we reverse the trial court’s judgment
awarding custody and visitation of A.B., and remand for the trial court to comply with Code
§ 20-124.3 based on the record existing at the time of its final order. Artis, 52 Va. App. at
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365-66, 663 S.E.2d at 525; Robinson v. Robinson, 50 Va. App. 189, 196, 648 S.E.2d 314, 317
(2007).
B. Attorney’s Fees
Father also seeks an award of his attorney’s fees.
“The rationale for the appellate court being the proper forum to
determine the propriety of an award of attorney’s fees for efforts
expended on appeal is clear. The appellate court has the
opportunity to view the record in its entirety and determine
whether the appeal is frivolous or whether other reasons exist for
requiring additional payment.”
Rice v. Rice, 49 Va. App. 192, 204, 638 S.E.2d 702, 707 (2006) (quoting O’Loughlin v.
O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996)). After review of the entire
record, we decline to award attorney’s fees on appeal.
II. CONCLUSION
For the reasons set forth above, we reverse the trial court’s custody and visitation award
relating to A.B. and remand to the trial court for its compliance with Code § 20-124.3 based on
the existing record.
Reversed and remanded.
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