Daniel J. Christovich v. Rebeccah L. Christovich ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Beales and Powell
Argued at Alexandria, Virginia
DANIEL J. CHRISTOVICH
MEMORANDUM OPINION * BY
v. Record No. 1632-08-4 JUDGE RANDOLPH A. BEALES
SEPTEMBER 15, 2009
REBECCAH L. CHRISTOVICH
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard B. Potter, Judge 1
Susan M. Hicks (The Susan Hicks Group P.C., on brief), for
appellant.
No brief or argument for appellee.
Daniel J. Christovich (father) filed several petitions requesting several changes to the child
custody order entered when he was divorced from Rebeccah L. Christovich (mother). In particular,
he asked that he be given more visitation with the children and that the court award him custody of
one son, who would then be enrolled in school in Maryland. 2 The Prince William County Circuit
Court denied his petitions in an order dated June 6, 2008. Father appeals from that order. After
considering the arguments presented by father, we affirm the trial court.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Judge Herman A. Whisenant, Jr. presided over portions of this case and made rulings
that were incorporated into the final order. However, Judge Potter signed the final order.
2
Only one child, a son, is discussed individually in this opinion. Comparatively little of
the record addresses the other children.
As the parties are familiar with the facts in this case, and as this opinion has no precedential
value, we forego a discussion of the record generally. We will address the relevant facts as we
discuss father’s arguments.
I. Specific Rulings
Father raises several issues related to particular rulings made by the trial court during the
custody proceedings.
A. Opening Statements
Father claims that the trial court abused its discretion by “suggesting that opening statements
be waived” and then limiting opening statements to three minutes. However, father did not preserve
this argument for appeal pursuant to Rule 5A:18 because he did not make his objection known to
the trial court when it announced the time limit. Instead, his counsel said, “Okay, very well,”
indicating to the trial court that appellant had no objection. Therefore, we do not address this
contention on appeal. See Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232
(1986) (“[W]e adhere to the policy of placing an affirmative duty on the parties to enter timely
objections to rulings made during the trial.”).
B. Witnesses Gibson, Flannery, and Rosenberg
Second, father argued that the testimony of three witnesses (Mark Gibson, 3 John
Flannery, and Barry Rosenberg) was improperly excluded. “The admissibility of evidence is
within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the
absence of an abuse of discretion.” Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838,
842 (1988). In addition, if a trial court did err in refusing to admit evidence, then that error must
3
Father argues that Gibson’s testimony was improperly excluded in both Questions
Presented II and V.
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have prejudiced the appellant in order for this Court to overturn the lower court’s decision. Code
§ 8.01-678; Clay v. Commonwealth, 262 Va. 253, 259-60, 546 S.E.2d 728, 731-32 (2001).
Gibson was a private investigator, hired by father to watch mother’s house for several
days. The trial court refused to let him testify, but did accept his full report into evidence. The
trial court also allowed father to proffer into the record the substance of Gibson’s testimony. In
addition, mother essentially conceded the substance of Gibson’s report, acknowledging that she
left the parties’ teenage children at home alone on several occasions. Therefore, most, if not all,
of the information from Gibson’s investigation was admitted at trial. Thus, even if the trial court
erred in refusing to allow Gibson to testify, we cannot find that this error prejudiced father as the
court heard all of the information that father wanted to introduce through Gibson. See Clay, 262
Va. at 259-60, 546 S.E.2d at 731-32.
Flannery was the attorney that father hired to represent the parties’ son who had been
expelled from school for possessing marijuana. Father incorrectly characterizes the trial court’s
ruling as “refus[ing] to allow John Flannery to testify.” In reality, Flannery prevented father
from calling him as a witness because he did not appear in court, and father did not ask for a
continuance to give Flannery time to appear. The trial court simply pointed out, “[I]f he’s not
here[, then] he won’t be called as a witness.” Thus, the trial court committed no error here –
father and Flannery prevented Flannery from testifying, not the court. In addition, father did not
proffer what information Flannery would have added to the record if he had been there to
testify. 4 Therefore, even if the trial court erred by preventing Flannery from testifying, father did
not preserve any error here for appellate review. See Smith v. Hylton, 14 Va. App. 354, 357-58,
416 S.E.2d 712, 715 (1992) (“It is well settled that when a party’s evidence has been ruled
4
Several witnesses and numerous documents admitted into evidence addressed many of
the issues on which Flannery apparently would have testified. The record does not make clear
what non-duplicative evidence would have been presented through Flannery’s testimony.
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inadmissible, the party must proffer or avouch the evidence for the record in order to preserve
the ruling for appeal; otherwise, the appellate court has no basis to decide whether the evidence
was admissible.”).
Rosenberg apparently lived in father’s neighborhood in Maryland. Father wanted
Rosenberg to testify about the son’s relationship with father and father’s new wife and about the
community in Maryland. The son was not available to testify regarding these issues because
father did not bring him to the hearing. 5 The trial court refused to accept Rosenberg’s testimony,
saying that “if you’d like for me to hear what [the son] has [to say] I’d like to hear [the son] tell
me that and not somebody else in his place, ma’am.” Father did not object or argue with this
reasoning, so he did not preserve his objection under Rule 5A:18. In addition, father had already
conceded that the son did not want to move to Maryland and did not want to attend the high
school in Maryland. Therefore, even if Rosenberg had testified about the son’s relationship with
his father and father’s neighbors in Maryland, we are not convinced that those observations
would have influenced the outcome of this case. We find no prejudice here. See Clay, 262 Va.
at 259-60, 546 S.E.2d at 731-32.
We find the trial court did not abuse its discretion in “refusing” to allow the testimony of
Gibson, Flannery, or Rosenberg.
C. Limiting Testimony
Father argues that the trial court erred in limiting the introduction of some evidence. He
argues the court erred by limiting his new wife’s testimony and by disallowing evidence that mother
pushed the new wife.
5
Mother wanted the children brought to the hearing so that they could talk to the judge,
but she did not subpoena them. Father had visitation with the children on the day of the hearing
and refused to bring them to court.
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Regarding the testimony of the new wife, the trial court questioned father when he called
her to testify, asking father’s attorney what relevant information would be added to the case by
allowing her to testify. In response, father’s counsel proffered that the new wife would testify about
“emails that Ms. Christovich sent her.” The trial court noted that it did not want more “throwing
mud” and that the evidence needed to address “a material change” and not events prior to the
parties’ divorce. The court then said, “I’ll let you call her briefly.” The new wife then testified
about several emails, which were introduced into evidence, about mother calling the new wife “it”
in front of the children, about the new wife’s relationship with the children, about the home in
Maryland, and about the school in Maryland that father wanted the son to attend. Father’s counsel
then said, “I have no further questions.”
Although the trial court said that the new wife could testify “briefly,” the court did not set a
time limit for her testimony. Father’s counsel was not curtailed when questioning the new wife by
any judicially imposed time constraints. In addition, father did not proffer what other relevant and
non-duplicative information would have been introduced into evidence if the trial court had
permitted more than a “brief” examination. Therefore, we have no basis upon which to make a
finding that the trial court committed error here. See Smith, 14 Va. App. at 357-58, 416 S.E.2d at
715.
Father also argues that the trial court erred in refusing to allow testimony about mother’s
behavior toward his new wife when they were together with the children. However, the only
specific incident excluded by the trial court regarded an allegation that mother pushed the new
wife on the day of the son’s expulsion hearing. This incident was described during father’s
testimony, but the proffer did not indicate that mother pushed the new wife while they were in
front of the children. No other proffers of specific incidents were presented to the trial court.
However, mother did admit that she did not like the new wife.
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If mother pushed the new wife, then she certainly acted improperly, but this allegation,
without a proffer that the incident occurred in front of the children, was largely irrelevant to a
custody determination, which was the issue before the trial court. In addition, the trial court
expressly found such evidence carried little weight given the other facts here. See Venable v.
Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986) (“The trial court’s decision, when
based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unless
plainly wrong or without evidence to support it.”). The testimony in this case proved that the
parties could not get along and could not agree on what was in the best interests of their children.
The trial court did not need to hear additional information about incidents between the new wife
and mother. Any error in excluding this evidence was harmless. See Clay, 262 Va. at 259-60,
546 S.E.2d at 731-32.
D. Modification of the February 21, 2008 Order
Father argues that the trial court erred when it rescinded a portion of an order entered on
February 21, 2008, requiring that mother cooperate with Flannery, who was representing the son in
the expulsion proceedings. On appeal, father claims that the order was already twenty-one days old,
that this issue was not before the court as it was not included in the pretrial order, and that
Flannery’s services were potentially needed if criminal charges are taken out against the son.
First, Rule 1:1, which prohibits amendment of orders more than twenty-one days after their
entry, applies to “[a]ll final” orders, not any order of a court. The February 21, 2008 order was not a
final order – the June 6, 2008 order from which husband appeals was the final order in this case.
Therefore, the trial court had jurisdiction to amend the order.
In addition, although husband appended various objections to the end of the June 6, 2008
final order, nothing in the record indicates that these objections were presented to the trial court at
the time of its ruling on April 14, 2008. Nothing in the record suggests that husband asked the trial
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court to rule on these objections. Therefore, they were not timely made, and we may not consider
them on appeal. See Rule 5A:18; Johnson v. Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731 (2002)
(noting that the purpose of the Rule for preserving appeals is to allow a trial court an “opportunity to
rule intelligently on a party’s objections” and to avoid unnecessary appeals); Thomas v.
Commonwealth, 44 Va. App. 741, 750, 607 S.E.2d 738, 742, adopted upon reh’g en banc, 45
Va. App. 811, 613 S.E.2d 870 (2005) (noting that an objection “must be both specific and timely –
so that the trial judge would know the particular point being made in time to do something about
it”).
For these reasons, we decline to address these arguments.6
II. General Rulings
Father claims that the trial court did not consider the best interests of the children, as
required under Code § 20-124.3, in ruling on his motion to change the previous custody order and
his motion to permit him to enroll his son in a Maryland school. Instead, father claims the trial court
considered what was in mother’s best interests and refused to give appropriate weight to the son’s
expulsion and mother’s anger with his new wife. Therefore, he claims, the trial court abused its
discretion in deciding not to amend the previous custody arrangements. We find the trial court did
not abuse its discretion.
A. Legal Standard Used by the Trial Court
This Court presumes that a trial court applies the correct law. Bottoms v. Bottoms, 249
Va. 410, 414, 457 S.E.2d 102, 105 (1995) (“Absent clear evidence to the contrary in the record,
the judgment of a trial court comes to an appellate court with a presumption that the law was
correctly applied to the facts.”); West v. West, 53 Va. App. 125, 132, 669 S.E.2d 390, 394
6
We also note that husband presents no authority on brief for any of his arguments here.
See Rule 5A:20(d).
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(2008) (“‘Our standard of review requires that we presume the judgment of the trial court to be
correct . . . .’” (quoting M. Morgan Cherry & Assocs. v. Cherry, 38 Va. App. 693, 702, 568
S.E.2d 391, 396 (2002) (en banc))).
Here, the final order explicitly states that the trial court “considered all [the] testimony
and other evidence presented by the parties.” The order explicitly states that the court considered
Code § 20-124.3 and the “argument of counsel.” The order also explicitly states that the trial
court “does not find that any of the changes in circumstances support Father’s request for
additional time with the children as being in the children’s best interest.” In addition, during the
trial court’s oral pronouncement of its decision, which was incorporated into the final order, the
court noted, “The issue is whether there has been a material change and whether that would be in
the best interest of the children, not [father’s] best interest, not [father’s] new wife, or [father’s]
new family, but these children’s best interest.” Based on the record, we cannot find that the trial
court applied an incorrect standard.
B. Evidence to Support the Trial Court’s Decision
Father claims the evidence does not support the trial court’s decision to leave the
pre-existing custody order in place. In reviewing this claim, we are mindful that “‘[a]s 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.’” Rice v. Rice, 49 Va. App. 192, 201, 638
S.E.2d 702, 707 (2006) (quoting Brown v. Brown, 30 Va. App. 532, 538, 518 S.E.2d 336, 338
(1999)). The trial court here did not abuse its discretion.
Father in his argument for changing the custody arrangements of the parties was asking
the trial court to order that he have more visitation with some of the children and that he have
physical custody of one of the parties’ sons. In asking for physical custody, father essentially
advocated taking the son away from the home where he had lived most of his life with his
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siblings, away from the school and the community where he was involved in numerous activities,
and move him to a different state, to live with father’s new family, and attend a different school –
all against the son’s wishes. Father’s only evidence that this significant change would be good
for the son – or the other children – related to the son’s expulsion from his current school for
possession of marijuana. 7
In explaining its pronouncements, the trial court noted that father made contradictory
arguments, sometimes contending that it was important for the son to be engaged with his school
friends, and at other points claiming it was bad for the son to be involved with his school friends.
As the court noted, no evidence was presented that the son’s friends were “bad individuals,” nor
was there any suggestion in the evidence presented to the trial court that mother had no control
over the son, which prompted him to get involved with people smoking marijuana.
The trial court had evidence before it that mother wanted the son to acknowledge his
mistake and take responsibility for having marijuana at the school, whereas father wanted the son
to deny his guilt. The trial court had evidence that mother took the son to his drug counseling
program, whereas father admitted that he refused to take the son to this program during visitation
because “[w]e had other things planned for that visitation. It was spring break.” The court also
had evidence that the student who sold the drugs to the parties’ son would not be attending that
same high school when the son re-enrolled.
Father presented a lot of evidence about the animosity between mother and his new wife,
but the evidence did not prove that this animosity created significant problems for the children or
for his relationships with the children. He presented information about the school in Maryland
where he wanted to enroll the son, but he presented no evidence to prove that the current school
7
Father also argued that he was retiring from the military and would have more time to
spend with the children. While this change made father more available, it did not necessarily
mean that it was in the children’s (or the son’s) best interests to uproot any of the children.
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was inadequate. 8 The evidence did prove that the children were generally doing well with their
studies and were involved in a number of extracurricular activities, both through the school and
in their community. Although the son was expelled from school for several months, nothing
suggested that mother was somehow to blame in this incident, and the trial court clearly believed
that her response to the incident was more appropriate than father’s response. Again, the trial
court did not abuse its discretion here.
In short, a trial court has discretion in determining the credibility of the witnesses and in
weighing the evidence. See Brown, 30 Va. App. at 539, 518 S.E.2d at 339. Although father may
disagree with the weight that the trial court gave to some of his evidence, the record contains
sufficient evidence to support the trial court’s ruling. Very little evidence suggested that
changing the custody or visitation arrangements would have any benefit for the children.
Therefore, we find that the trial court did not abuse its discretion, and, thus, we affirm the trial
court’s denial of father’s motions. See Joynes v. Payne, 36 Va. App. 401, 416, 551 S.E.2d 10, 17
(2001) (“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.”).
8
During the pendency of this case in the trial court, the son was schooled at home
through homebound instruction. By the time that the final order was entered, however, the
period of expulsion was ending so that the boy could return to his regular public school that fall.
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III. Conclusion
We find the trial court did not commit any prejudicial error in its rulings during the
course of these proceedings nor did it abuse its discretion in denying father’s petition to change
the custody and visitation arrangements for the parties’ children. Therefore, we affirm the trial
court’s decision. 9
Affirmed.
9
Father included a request that this Court award to him the attorney’s fees and costs
associated with this appeal. As we have affirmed the trial court, as father provides no rationale
to support his request, and as we see no reason to grant his request, we deny father’s request for
an award of the fees and costs associated with this appeal.
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