Murray L. Steinberg v. Katherine T. Steinberg ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
MURRAY L. STEINBERG
MEMORANDUM OPINION * BY
v. Record No. 2315-95-2 JUDGE LARRY G. ELDER
JUNE 18, 1996
KATHERINE T. STEINBERG
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L. A. Harris, Jr., Judge
Murray L. Steinburg, pro se.
No brief or argument for appellee.
Murray L. Steinberg (father) appeals the trial court's
refusal to alter his daughter's visitation schedule to allow her
to attend religious school on Sundays. Because the trial court
did not take evidence on this issue before refusing to alter the
visitation schedule, we reverse and remand its decision.
On September 6, 1995, father and his daughter, Chelsea R.
Steinberg (daughter), filed a petition in the Circuit Court of
Henrico County moving for a "revision and alteration" of father's
visitation schedule with daughter. Father asserted multiple
changes in circumstances and requested the court to order mother
to transport daughter to Sunday religious school or to alter the
visitation schedule to include Sundays with father.
On September 11, 1995, father and counsel for mother
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appeared before the court in the related, yet separate, case of
Katherine T. Steinberg v. Murray L. Steinberg. At the hearing,
the court heard argument from the parties concerning the case of
Katherine T. Steinberg v. Murray L. Steinberg and made certain
rulings regarding civil and criminal bonds in that case.
According to the statement of facts:
Before adjourning, the [c]ourt
acknowledged receipt of [father's] petition
to revised [sic] and alter the visitation
arrangements and said that if he wanted to
proceed with that matter that he had better
have a change of circumstances. To emphasise
[sic] that point the [c]ourt asked [father]
"do you understand?" Since the matter of a
change in the visitation arrangement was not
a matter before the [c]ourt, no further
discussion was had, no evidence was presented
and no statements were made by either party.
Court was then adjourned. One week later, the trial court issued
an order recounting its rulings. The order stated, in part, that
"[t]he Court, having considered statements offered by [father],
on his Petition filed September 6, 1995, for revision and
alteration of visitation, hereby denies said Petition."
On September 22, 1995, father filed a motion to correct and
clarify the court's order, in which father said:
The Order stated that [father's] petition to
allow his daughter to attend religious school
was denied. Defendant would like to verify
this point since at the hearing of September
11, 1995 the [c]ourt simply warned [father]
that he "had better have a change of
circumstances." Nothing was said about
denying the motion.
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The trial court never responded to this motion. Father now
appeals to this Court.
According to Code § 20-108, a trial court has the authority
to "revise and alter such decree concerning the care, custody,
and maintenance of the children and make a new decree concerning
the same, as the circumstances of the parents and the benefit of
the children may require." See Hughes v. Gentry, 18 Va. App.
318, 443 S.E.2d 448 (1994). In this case, father's petition
listed a number of factors bearing upon circumstances that the
trial court should have considered on the issue of whether to
revise the visitation schedule.
A trial court's decision in deciding whether to alter or
revise a visitation schedule, "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." Venable
v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986). In
this case, no evidence supports the trial court's decision to
deny father's petition because the trial court never received any
evidence on the issue. The facts of this case reveal that the
trial court acknowledged receipt of father's petition and stated
that if father "wanted to proceed with that matter that he had
better have a change in circumstances." The facts also reveal
that "the matter of a change in the visitation arrangement was
not a matter before the [c]ourt, no further discussion was had,
no evidence was presented and no statements were made by either
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party." Because the trial court never afforded father the
opportunity to present evidence on this issue, the trial court
abused its discretion. See Venable, 2 Va. App. at 181-82, 342
S.E.2d at 648.
We therefore reverse the trial court's decision and remand
the case instructing the trial court to hear evidence on the
visitation issue.
Reversed and remanded.
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