Joseph P. Craven v. Deena S. Williamson ( 2012 )


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  •                                 COURT OF APPEALS OF VIRGINIA
    Present: Judges Frank, McCullough and Senior Judge Annunziata
    Argued at Alexandria, Virginia
    JOSEPH P. CRAVEN
    MEMORANDUM OPINION * BY
    v.      Record No. 1023-11-4                                           JUDGE ROBERT P. FRANK
    JANUARY 10, 2012
    DEENA S. WILLIAMSON
    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
    David S. Schell, Judge
    Melinda L. VanLowe (Greenspun Shapiro, P.C., on briefs), for
    appellant.
    James Ray Cottrell (Christopher Wm. Schinstock; Cottrell, Fletcher,
    Schinstock, Bartol & Cottrell, on brief), for appellee.
    Joseph P. Craven, appellant/father, appeals a visitation order entered April 25, 2011. On
    appeal, he contends the trial court erred in denying him visitation for the month of August, in failing
    to provide a legal or factual basis for its decision, and in failing to grant his motion for clarification.
    For the reasons stated, we affirm the trial court.
    BACKGROUND1
    On March 31, 2009, father and Deena S. Williamson, appellee/mother, entered into a
    “Parenting Agreement” setting forth custody and visitation, including a detailed visitation schedule
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    1
    Mother, in her brief, asks that the appeal be dismissed under Rule 5A:8(b)(4)(ii) for
    failure “to ensure the record contains transcripts . . . necessary to permit resolution of appellate
    issues . . . .” However, the trial court’s final decree dated April 25, 2011 states, “the Court
    having made detailed findings from the bench on March 14, 2011 concerning the child custody
    factors set forth in Virginia Code § 20-124.3, said findings attached hereto as Exhibit A and
    incorporated herein in haec verba . . . .” Because the rulings from the bench, being incorporated
    by order, provide sufficient facts to address the assignments of error, we will not dismiss the
    appeal.
    for their four children. However, the parties could not decide on a summer visitation schedule, with
    that issue to be submitted to the circuit court if no decision could be reached by a date certain.
    The parties were divorced by final decree entered November 18, 2009, which incorporated
    by reference the Parenting Agreement.
    On September 22, 2010, mother filed a twelve-page petition for change of custody and
    visitation, praying for sole custody of the children and supervised visitation for father. After a
    four-day hearing, the trial court established a visitation schedule and explained the basis of his
    decision by addressing each of the ten factors of Code § 20-124.3. Of particular importance are
    factors two, three, four, and nine.2
    Under factor two, age, physical and mental conditions of each parent, the trial court
    indicated it considered the anger father exhibits towards the children.
    As to factor three, relationship between each parent and child, the trial court found that
    generally father has a good relationship with all of the children, except K., who refuses to visit with
    father. There is some evidence the children are uncomfortable with father when he raises his voice
    and gets angry. The trial court indicated father’s weakest area in relating to the children is his
    emotional responses to the children.
    The trial court referred to an incident in July 2010, where one of the children said “my father
    stomped on me” or “my father stepped on me when he was angry,” requiring intervention by Child
    Protective Services. Father’s visitation was terminated for a period of time.3
    2
    Father contends when analyzing factors two, three, four, and nine the court made no
    finding father abused the children.
    3
    While mother recites in detail as to the injury and Child Protective Services
    intervention, none of those recitations are in the appellate record. Mother refers to the trial
    transcript, but gives no page references. Mother has the responsibility to provide this Court with
    an adequate record of the trial proceedings to enable us to reasonably understand her position
    and the underlying facts upon which her contention is based. Buchanan v. Buchanan, 
    14 Va. App. 53
    , 56, 
    415 S.E.2d 237
    , 239 (1992). An appellate court does not have the
    -2-
    The court further discussed each parent’s ability to meet the emotional, intellectual, and
    physical needs of the children, noting that father’s ability “breaks down when it has to interface with
    the mother’s.” The trial court then addressed factor four, the needs of the children and their other
    important relationships. The trial court opined it is not in K.’s best interest, at this time, to have a
    relationship with father, recommending therapy for her.
    As to factor nine, family abuse, the court considered that there was “some testimony . . . of
    the father losing his temper and raising his voice.” However, evidence also indicated father had
    been with the children without incident. 4
    The trial court found a material change in circumstances, i.e., that Child Protective Services
    determined that father abused one of the children, based upon statements of the children that father
    stepped on them. One child was seriously hurt while in the care of the father and as a result of that
    incident, the children are afraid of him. The court ordered father into anger management
    counseling.
    The court ordered summer visitation as follows:
    In the summer: the father will exercise four weeks in the summer,
    and it’ll be broken down into four one-week periods, beginning the
    second Monday in June, the fourth Monday in June, the second
    Monday of July, and the fourth Monday in July. And the visitation
    will run from 9:00 a.m., Monday, to 6:00 p.m., Sunday. This
    visitation provision overrides any other provisions of visitation that
    you may have in the agreement.
    After the court announced the summer schedule, father’s counsel asked that the court
    repeat the ruling. The court replied, “Four weeks: second Monday in June, fourth Monday in
    June, second Monday in July and fourth Monday in July.” The court also confirmed mother “has
    responsibility of scouring the record to understand the facts necessary to support a party’s legal
    position. 
    Id. 4 We note
    that generally, the trial court found father to be concerned for the children and
    is very committed to them.
    -3-
    them all other times in the summer.” The court entered a written decree on April 25, 2011
    confirming its oral pronouncement, which, inter alia, awarded four weeks visitation to father
    without any mention of the specific number of weeks to mother.
    Father filed a “Motion for Clarification” on April 15, 2011, asking, inter alia, the trial
    court to clarify how the summer would be divided between the parents. Father claimed the
    court’s earlier statement that “it should be four weeks with the father and I think it’ll be five to
    five and a half weeks for the mother” is inconsistent with the actual ruling, giving mother eight
    to nine weeks. 5 At the hearing on the motion, the trial court characterized the motion as one for
    reconsideration, not for clarification, and there was nothing to reconsider. The court denied the
    motion, making it clear that it had awarded father four weeks summer visitation, and
    characterizing his earlier statement that mother would have five to five and a half weeks as
    “dicta.” 6
    This appeal follows.
    ANALYSIS
    Visitation
    Appellant contends the trial court abused its discretion in denying him visitation for the
    month of August. He argues that the trial court’s considerations and findings of facts pursuant to
    5
    Settled principles provide that “[a] court speaks through its orders and those orders are
    presumed to accurately reflect what transpired.” McBride v. Commonwealth, 
    24 Va. App. 30
    ,
    35, 
    480 S.E.2d 126
    , 128 (1997); see also Stamper v. Commonwealth, 
    220 Va. 260
    , 280-81, 
    257 S.E.2d 808
    , 822 (1979) (holding that when a court’s statements from the bench conflict with its
    written order, the order controls). Therefore, any inconsistency perceived between the oral
    pronouncement and the written order is resolved in favor of the written order.
    6
    Dicta generally refers to “that portion of an opinion ‘not essential’ to the disposition in
    the case.” Newman v. Newman, 
    42 Va. App. 557
    , 565, 
    593 S.E.2d 533
    , 537 (2004) (en banc)
    (quoting Cent. Green Co. v. United States, 
    531 U.S. 425
    , 431 (2001)). While not technically
    dicta, the trial court made it clear that statement was not part of its ruling.
    -4-
    Code § 20-124.3 do not support a conclusion that appellant should have no visitation with his
    children for an entire month each year.
    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. Artis v. Jones, 
    52 Va. App. 356
    , 363, 
    663 S.E.2d 521
    , 524 (2008). The statute concludes by directing that the trial court
    “communicate to the parties the basis of [its] decision either orally or in writing.” This Court has
    interpreted this statute as “requir[ing] the trial court to identify the fundamental, predominating
    reason or reasons underlying its decision.” Kane v. Szymczak, 
    41 Va. App. 365
    , 372-73, 
    585 S.E.2d 349
    , 353 (2003). “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.” Lanzalotti v. Lanzalotti, 
    41 Va. App. 550
    , 555,
    
    586 S.E.2d 881
    , 883 (2003). A court “‘is not required to quantify or elaborate exactly what
    weight or consideration it has given to each of the statutory factors.’” Sargent v. Sargent, 
    20 Va. App. 694
    , 702, 
    460 S.E.2d 596
    , 599 (1995) (quoting Woolley v. Woolley, 
    3 Va. App. 337
    ,
    345, 
    349 S.E.2d 422
    , 426 (1986)). “As long as evidence in the record supports the trial court’s
    ruling and the trial court has not abused its discretion, its ruling must be affirmed on appeal.” 
    Id. Where the court
    hears evidence ore tenus, its findings are entitled to the weight of a jury
    verdict, and they will not be disturbed on appeal unless plainly wrong or without evidence to
    support them. Rice v. Rice, 
    49 Va. App. 192
    , 201, 
    638 S.E.2d 702
    , 707 (2006). Moreover, it is
    well established that “[o]n appeal, we view the evidence in the light most favorable to the
    prevailing party, granting that party the benefit of any reasonable inferences.” Denise v. Tencer,
    
    46 Va. App. 372
    , 397, 
    617 S.E.2d 413
    , 426 (2005).
    -5-
    Here, the trial court expressly and painstakingly addressed each of the factors contained
    in Code § 20-124.3 in awarding visitation. Of particular consideration, the court elaborated on
    the importance of factors two, three, four, and nine, and determined that it was in the children’s
    best interests for father to have four weeks visitation with them during the summer and to have
    no contact with them in August. While the father may be dissatisfied with the court’s decision,
    he has not demonstrated how the court abused its discretion in fashioning its visitation schedule.
    Motion for Clarification
    Appellant argues the trial court erred in denying his motion for clarification. He contends
    that because the trial court made an inconsistent ruling, clarification was warranted. We disagree
    with the father.
    In denying the motion, the trial court stated, “I have reviewed both of those pleadings
    carefully. In my judgment, the motion for clarification is a motion for reconsideration with a
    different title.” The trial court could not have been clearer in stating its ruling that the father is to
    receive four weeks of visitation during the summer. The court repeated its ruling twice in
    response to father’s questions during the March 14 hearing. The court again explicitly stated at
    the March 22 hearing that father is to receive four weeks of visitation during the summer. Thus,
    the court’s ruling was unambiguous and did not need clarification. The court properly denied
    father’s motion.
    Attorney’s Fees on Appeal
    Mother asks for attorney’s fees and costs incurred in connection with this appeal.
    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.
    O’Loughlin v. O’Loughlin, 
    23 Va. App. 690
    , 695, 
    479 S.E.2d 98
    , 100 (1996).
    -6-
    Having reviewed and considered the entire record in this case, we find husband’s appeal
    is frivolous and without merit. We hold that mother is entitled to reasonable attorney’s fees and
    costs. Accordingly, we remand and direct the trial court to award mother the reasonable
    attorney’ s fees she incurred in defending this appeal, as well as any attorney’s fees incurred by
    her on remand to determine such fees. See Miller v. Cox, 
    44 Va. App. 674
    , 688, 
    607 S.E.2d 126
    ,
    133 (2005).
    CONCLUSION
    For the reasons stated herein, the decision of the trial court is affirmed. We remand to the
    trial court for an award of attorney’s fees.
    Affirmed and remanded.
    -7-