Joseph Michael Russell v. Nancy Lynne Russell ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Bumgardner
JOSEPH MICHAEL RUSSELL
v. Record No. 1469-05-4
NANCY LYNNE RUSSELL
JOSEPH MICHAEL RUSSELL
v. Record No. 2247-05-4
NANCY LYNNE RUSSELL MEMORANDUM OPINION*
PER CURIAM
JOSEPH MICHAEL RUSSELL OCTOBER 3, 2006
v. Record No. 2585-05-4
NANCY LYNNE RUSSELL
JOSEPH MICHAEL RUSSELL
v. Record No. 3151-05-4
NANCY LYNNE RUSSELL
JOSEPH MICHAEL RUSSELL
v. Record No. 0204-06-4
NANCY LYNNE RUSSELL
JOSEPH MICHAEL RUSSELL
v. Record No. 1107-06-4
NANCY LYNNE RUSSELL
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
Jane Marum Roush, Judge
(Fred M. Rejali, on briefs), for appellant.
(William B. Reichhardt; Colleen C. Sweeney; William B.
Reichhardt & Associates, on briefs), for appellee.
Joseph Michael Russell (father) has filed six appeals arising from custody, visitation, and
contempt issues concerning his relationship with Nancy Lynne Russell (mother) and their minor
son, Benjamin. Father presents numerous questions on appeal, which will be addressed within
the body of this opinion. Both parties request attorney’s fees on appeal. Upon reviewing the
records and briefs of the parties, we conclude that these appeals are without merit. Accordingly,
we summarily affirm the decisions of the trial court. Rule 5A:27.
BACKGROUND
The parties married in September 1991. The couple’s final separation occurred in
December 1992. On May 27, 1993, Benjamin, their only child, was born. Their divorce was
finalized in 1995.
The parties had informally agreed to a number of visitation arrangements since their
separation. When the child was five years old, father and mother were living in separate houses
but were within walking distance of each other, and the two agreed to split their time with him
during the week; this arrangement was finalized in a 2001 consent order. In an effort to obtain
sole custody of the child, mother filed a petition to reopen and modify custody and child support
in 2003. The trial court appointed a guardian ad litem (GAL) to represent the child’s interests.
The parties agreed to a modified custody order on December 24, 2003. The order
decreed that the parties would attend counseling sessions with Dr. Victor Elion, that the parties
would make decisions concerning Benjamin together, and that “[i]f the parties cannot reach an
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agreement as to activities, they shall submit the issue to Dr. Elion or other therapist, who shall
make the decision.” The order also stated that Dr. Elion would draft a report on the progress of
the family counseling for the court to review.
Dr. Elion delivered a written report to the GAL, who asked him to draft a second report.
On August 27, 2004, Dr. Elion filed the second report. One of the report’s recommendations
was that the court reconsider mother’s petition for modification of custody. The trial court held a
hearing in December 2004 to review Dr. Elion’s appraisal of the situation. During that hearing,
the trial court ordered that a hearing for visitation and custody be held on May 2 and 3, 2005.
After the May 2005 hearing, at which Dr. Elion testified, the court entered a custody order on
May 20, 2005, granting sole custody of the child to the mother.
Subsequently, mother filed a motion asking the trial court to require father to show cause
why he should not be held in contempt for violating the May 20, 2005 custody order. The trial
court determined, in a hearing pursuant to this motion on November 29, 2005, that father had
violated the custody agreement on numerous occasions. The trial court found father had
interfered with mother’s visitation rights during weeknights, during Thanksgiving break, had
supplied the child with locks to lock himself in his room in mother’s house, and used the child to
communicate with mother on visitation issues. The trial court found father in contempt of court,
but suspended the jail sentence on certain conditions.
A December 9, 2005 order, entered pursuant to a show cause hearing initiated by mother,
provided that mother shall have exclusive custody of Benjamin until January 2, 2006. Mother
testified at a January 20, 2006 hearing that on December 17, 2005, father drove by and picked up
Benjamin in father’s vehicle while Benjamin was playing in a neighbor’s yard. On January 23,
2006, the trial court entered an order finding father in contempt, and incarcerated him until he
“submits a written plan as to how he will comply with this court’s orders and obtain assistance
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by a mental health professional.” Father failed to comply with the trial court’s order; his counsel
argued that doing so could compromise his due process rights.
After a March 21, 2006 hearing, the trial court issued an order stating that, “Michael
Russell shall be released from jail. Pending Michael Russell’s submission to the court of a plan
to follow the Court’s Order all visitation shall be suspended. Michael Russell shall have no
contact with Benjamin.” Within hours of being released, father called Benjamin on the
telephone. In a March 31, 2006 hearing, the court refused to grant father visitation, saying “I
think it’s clear at this time in Ben’s life contact with his father would be toxic.”
ANALYSIS1
Record No. 1469-05-4, Questions Presented I and II
Scheduling of Custody Hearing of May 2-3, 2005
Father contends there was no legal basis for Dr. Elion to suggest a custody modification
and that the trial court erred in scheduling the May 2-3, 2005 custody hearing when a final order
had been entered in the matter on December 24, 2003 and no petition had been filed for a change
in custody. Father also contends the trial court erred in allowing Dr. Elion to testify and in
considering his testimony when he had not prepared a custody evaluation.
“In matters of a child’s welfare, trial courts are vested with broad discretion in making
the decisions necessary to guard and to foster a child’s best interests.” Farley v. Farley, 9
Va. App. 328, 328, 387 S.E.2d 794, 795 (1990). Specifically, Code § 20-107.2 provides that
“[u]pon entry of a decree providing . . . for a divorce . . . the court may make such further decree
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Father has filed a “Motion for an Expedited Hearing, and Request for Attorney’s Fees,”
arguing that his appeals are “extremely compelling” and that mother is “maliciously prosecuting
him.” We deny this motion because we find father’s appeals to be without merit. Father has also
filed a “Motion to Declare Orders Void or to Stay Orders Pending Appeal,” arguing that the trial
court had no jurisdiction to issue various orders. We deny this motion for reasons provided in
the analysis section.
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as it shall deem expedient concerning the custody or visitation and support of the minor children
of the parties.” Code § 20-108 states:
The court may, from time to time after decreeing as provided in
§ 20-107.2 . . . on its own motion . . . 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.
“The court, in the exercise of its sound discretion, may alter or change custody or the terms of
visitation when subsequent events render such action appropriate for the child’s welfare.”
Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986).
In this case, Dr. Elion’s recommendation to modify custody provided the court with a
sufficient basis to hold a custody hearing. Furthermore, the trial court was within its discretion
to revise an existing custody agreement based in part on Dr. Elion’s report and testimony. Dr.
Elion is an expert clinical psychologist who met with the parents and the child numerous times.
He found mother to be responsive during the sessions, and observed that father was unresponsive
and uncooperative. He described the parties’ relationship as a “case where there is, in terms of
harmonious communication or effective communication that would be in the best interest of the
child, as being virtually non-existent.” One example Dr. Elion provided was that father was
unresponsive to any suggestion that the child’s athletic activities should be reduced despite the
fact that these activities “took away time from other important aspects of childrearing
experiences.” The trial court, acting in the best interests of the child, was free to hold a hearing
and modify custody based in part on Dr. Elion’s informed opinion.
Record No. 1469-05-4, Questions Presented III and IV
Subpoenas
Father contends the trial court erred when it allowed mother to present evidence by Dr.
Elion when the doctor had not provided to father’s counsel the first report he drafted or the notes
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from his sessions with Benjamin to father’s counsel despite having been subpoenaed for these
documents.
In November 2004, both parties served Dr. Elion with a subpoena duces tecum and a
subpoena for a witness, requesting access to the child’s medical records. In a November 12,
2004 motion, the GAL stated that the subpoenas duces tecum should be denied on the basis that
releasing the records was not in the child’s best interests, as Dr. Elion explicitly told the child he
would not release this information to his parents.
A subsequent order from the trial court provided that “none of Benjamin’s psychological
records are discoverable.”
“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.” “Certainly it is true that
the legal rights of the parent should be respected . . . but the
welfare of the child is to be regarded more highly than the
technical legal rights of the parent.”
Green v. Richmond Dep’t of Soc. Servs., 35 Va. App. 682, 686-87, 547 S.E.2d 548, 550 (2001)
(quoting L.C.S. v. S.A.S., 19 Va. App. 709, 724, 453 S.E.2d 580, 588 (1995) (citations omitted)).
Both Dr. Elion and the GAL believed allowing the parents access to Benjamin’s medical
documents could interfere with his counseling. The trial court was well within its discretion,
then, in ruling these records to be undiscoverable in order to protect the welfare of the child.
Record No. 1469-05-4, Questions Presented V and VI
Admissibility of Expert Testimony
Father contends the trial court erred in admitting Dr. Elion’s report and giving substantial
weight to his testimony when he had been instructed only to report on the status of family
therapy. Father also contends the trial court erred in admitting Dr. Elion’s report when it
contained gross misstatements.
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The December 24, 2003 consent order states that “this Order and the efficacy of the
family counseling will be reviewed by Dr. Elion . . . within five months from the entry of this
Order. A report regarding the efficacy and progress of family counseling shall be prepared for
review by the Court and the Guardian ad litem.” Father argues that Dr. Elion’s report and
testimony went beyond the limited scope assigned to him by the consent order and that the report
misstated the number and intensity of athletic activities Benjamin was involved in and
erroneously stated that father had punched Benjamin in the chest.
As the trial court noted at the time, even if true, father’s arguments merely go to the
weight accorded Dr. Elion’s report and testimony. “In determining whether credible evidence
exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or
make its own determination of the credibility of the witnesses.” Wagner Enters., Inc. v. Brooks,
12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). “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.” Joynes v. Payne, 36 Va. App. 401, 416, 551 S.E.2d 10, 17 (2001).
The trial court did not abuse its discretion by weighing Dr. Elion’s evidence as it did and
in granting sole custody to mother.
Record No. 1469-05-4, Question Presented VII
Admissibility of Father’s Deposition Transcript
Father contends the trial court erred in admitting the entire transcript of his April 2005
deposition into evidence, arguing that the deposition transcript contained hearsay and was
prejudicial to father.
“[A] party may, subject to the rules of evidence, introduce an adverse party’s discovery
deposition as substantive evidence in his own case, whether the deponent is present or not.”
Horne v. Milgrim, 226 Va. 133, 138, 306 S.E.2d 893, 895 (1983).
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The party offering such a deposition may tender only that part of it
he considers relevant. If fairness requires the admission of
additional parts, a remedy is provided by Rule 4:7(a)(5). The
deposition is, of course, subject to objection on the grounds of
authenticity, relevancy, non-compliance with the Rules of Court,
or any failure to comport with the rules of evidence.
Id.
Father asserts that the deposition transcript contains irrelevant content and hearsay. He
does not, however, specify which sections of the transcript are objectionable. The deposition
transcript consists mainly of father’s answers to questions about Benjamin’s extra-curricular
activities, his relationship to Benjamin and mother, and his participation in family therapy. None
of these subjects is irrelevant to the issue of custody. In the absence of specific examples of
hearsay or irrelevance, then, this Court cannot conclude the trial court erred in admitting the
deposition into evidence.
Record No. 1469-05-4, Question Presented VIII
Judicial Bias
On April 29, 2005, Judge Keith presided over a hearing and issued an order in a separate
case in which father was a party. Judge Keith’s order involved Benjamin’s mental health
records, and stated in part that these records were not to be communicated to father. Based on
this ruling, father contends the trial court had already formed an opinion as to the admissibility of
the child’s mental health records and that the judge abused his discretion by relying on opinions
formed in this previous case when he granted mother sole custody.
The fact that Judge Keith had presided over a hearing in which father was a party that
concerned Benjamin’s mental health records does not, by itself, constitute an abuse of discretion
on his part. “‘Merely because a trial judge is familiar with a party and his legal difficulties
through prior judicial hearings . . . does not automatically or inferentially raise the issue of
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bias.’” Deahl v. Winchester Dep’t of Soc. Servs., 224 Va. 664, 672-73, 229 S.E.2d 863, 867
(1983) (quoting Barry v. Sigler, 373 F.2d 835, 836 (8th Cir. 1967)).
“Frequently, in the disposition of cases, both civil and criminal, a
judge is called upon to form and express an opinion upon a matter
or issue which may come before him in a subsequent proceeding
arising out of the same state of facts. The courts are practically
unanimous in the view that neither the forming nor the expression
of such a conclusion, under such circumstances, disqualifies a
judge in the subsequent matter. [Citations omitted.]”
Justus v. Commonwealth, 222 Va. 667, 673, 283 S.E.2d 905, 908 (1981) (quoting Slayton v.
Commonwealth, 185 Va. 371, 376, 38 S.E.2d 485, 488 (1946)).
Father alleges nothing more than that Judge Keith previously issued a ruling involving
the admissibility and disclosure of Benjamin’s mental health records similar to the one he issued
in May of 2005; this fact alone is insufficient to show Judge Keith abused his discretion.
Record No. 1469-05-4, Question Presented IX
Sufficiency Of The Evidence
Father contends the trial court should have given Dr. Elion’s report almost no weight and
there was little evidence besides the report to support granting mother sole custody of the child.
“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.”
Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986). Dr. Elion is a clinical
psychologist whom both parents designated to evaluate themselves and their son. He conducted
numerous clinical sessions with the parents and with the child. The trial judge did not abuse his
discretion in relying heavily on Dr. Elion’s testimony. The record shows the trial judge
explained his decision-making process in detail, and discussed the factors listed in Code
§ 20-124.3 when deciding the best interests of the child. The trial judge relied on many pieces of
evidence in coming to his decision, including testimony from the parties and e-mails the parents
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had written concerning Benjamin. The evidence was sufficient to support the trial court’s
decision.
Record No. 2247-05-4
Jurisdiction
On August 19, 2005, the trial court issued an order stating that the non-custodial parent is
restricted from visiting with Benjamin during the other parent’s half of the summer with him.
Mother contends this order merely clarified a May 20, 2005 order. Father argues the order
modified the May 20 order and that, because the May 20 order was on appeal at the time, the
trial court no longer had jurisdiction. Therefore, father argues, the August 19 order is void.
Provision E of the May 20, 2005 order states as follows:
The Father shall have visitation for the first half of summer break
in 2005 and the Mother shall have the second half. Father and
Mother shall alternate their respective halves each year thereafter.
Each of the parties shall have regular visitation as described herein
for the Father during the other parent’s one-half summer visitation
time. However, upon prior notice of dates exchanged no later than
May 1 of each year, each parent shall be entitled to exclusive
visitation during their summer visitation for vacation and travel
with their son.
The provision is unclear. The first sentence states that the child will stay with one parent
for the first half of the summer, and the other parent for the second half. The third sentence,
though, provides that each parent “shall have regular visitation as described herein for the Father
during the other parent’s one-half summer visitation time.” The third sentence arguably
contradicts the first, leaving undefined and unclear the meaning of “regular visitation as
described herein for the Father.”
The trial judge, during the May 3, 2005 hearing, stated that he simply intended to split the
summer “down the middle. And in 2005, the father will get the first half. The mother will get
the second half.” Then, during the August 17, 2005 hearing, the trial judge stated that he viewed
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the ensuing August 19, 2005 order as a clarification: “I certainly think I have the power to
clarify that today.” He also stated:
The [May 20, 2005] order that was—it’s inconsistent. Each of the
parties are [sic] to have regular visitation during the other party’s
one-half summer vacation time. That wasn’t my order. That’s not
what I intended at all. It was supposed to be . . . . One half is all
dad’s; one half is all mom’s, and there’s no visitation for the other
parent during that time.
Because the May 20, 2005 order contained inconsistent and unclear statements, the
August 19, 2005 order was a clarification, not a modification, of the original order. As such, the
trial court had the authority to enter the August 19, 2005 order.
Record No. 2585-05-4
Inconsistent Ruling of September 23, 2005 Order
Father filed a motion to unseal the file in this case. The trial court entered an order on
September 23, 2005, stating “[Father’s] motion is denied because the Court lacks jurisdiction to
enter the order while the matter is on appeal. Furthermore, no compelling reason was presented
by the defendant that the file should not be sealed.”
Father contends the court erred in ruling that the court lacked jurisdiction over the matter
and then also ruling that no compelling reason was presented to unseal the file. If a court lacks
jurisdiction over a case, it must dismiss. The sentence in the order addressing the fact that no
compelling reason was presented by the defendant is merely dicta. See Lofton Ridge, LLC v.
Norfolk S. Ry., 268 Va. 377, 383, 601 S.E.2d 648, 651 (2004) (An “alternative justification for
the ruling was unnecessary to the holding. As such, it is dicta.”). We therefore find no
reversible error in the order.
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Record Nos. 3151-05-4 and 0204-06-4, Questions Presented I and II
Contempt Orders
Jurisdiction
Father contends the November 29, 2005 order, suspending a jail sentence, and the
January 23, 2006 order, imposing a jail sentence, were modifications of the May 20, 2005 order,
which was on appeal at that time, and, as such, the trial court lacked jurisdiction to enter those
orders.
We do not accept the premise of father’s argument. Under Code § 20-124.2(E), the trial
court has the “continuing authority and jurisdiction to make any additional orders” which are
necessary to enforce a custody order it has previously issued. The November 29, 2005 and
January 23, 2006 orders were not entered to modify the May 20, 2005 order; instead, the court
entered them to enforce the May 20, 2005 order because of father’s failure to comply. Code
§ 20-124.2(E) gives the court the authority to do so.
Service of Process
Father also argues that procedural defects invalidate the November 29, 2005 order.
Specifically, he claims lack of service of process for the January 20, 2006 hearing. However,
father presents no arguments, case law, or statutes to support his contention. “Statements
unsupported by argument, authority, or citations to the record do not merit appellate
consideration. We will not search the record for errors in order to interpret appellant’s
contention and correct deficiencies in a brief.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992).
Sufficiency
Father also argues that the evidence was insufficient to find him in contempt.
A trial court “has the authority to hold [an] offending party in
contempt for acting in bad faith or for willful disobedience of its
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order.” Carswell v. Matterson, 224 Va. 329, 332, 295 S.E.2d 899,
901 (1982). In a show cause hearing, the moving party need only
prove that the offending party failed to comply with an order of the
trial court. Frazier v. Commonwealth, 3 Va. App. 84, 87, 348
S.E.2d 405, 407 (1986). The offending party then has the burden
of proving justification for his or her failure to comply. Id.
Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d 666, 669 (1991).
At the November 29, 2005 hearing, father admitted communicating with mother through
the child and picking up the child from school on Thanksgiving break. These actions were clear
violations of the court’s May 20, 2005 order and, therefore, were sufficient to find father in
contempt.
The December 9, 2005 order provided that “[t]he mother shall have exclusive custodial
time during the Winter/Christmas visitation time of 2005” and “[a]fter January 2, 2006 the father
shall resume every other weekend visitation from 4:00 p.m. Friday to 7:30 p.m. Sunday.”
During the January 20, 2006 hearing, mother testified that on December 17, 2005, without prior
notice, father took the child while he was playing in his friend’s yard and kept him for the
weekend. This action was a direct violation of the December 9, 2005 order. The trial court was
within its discretion to find father “clearly in contempt of this court’s orders.”
Father also claims the trial judge found father in contempt not based on the violations
alleged in mother’s show cause motions, but based on father’s own testimony during the
hearings. This is untrue, as the contempt order was the result of a combination of the facts
alleged in mother’s show cause motions and her testimony, and in father’s own testimony.
Record No. 1107-06-4, Questions Presented I and II
Modification of Visitation Orders
Father argues the trial court erred in modifying visitation orders while the issue of
visitation was on appeal. We have addressed this issue in the section entitled “Record No.
1469-05-4, Questions Presented I and II.”
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Record No. 1107-06-4, Questions Presented III and IV
Void Orders
Father argues the trial court erred in finding him in contempt of court for violating orders
that were void. The modification of the visitation orders was not void, though, as we have
already explained in “Record No. 1469-05-4, Questions Presented I and II.”
Record No. 1107-06-4, Question Presented V
Conditions of Contempt
Father argues the trial court erred in finding that he had not met the conditions of the
contempt order. He presents no arguments and cites no law in support of this contention.
“Statements unsupported by argument, authority, or citations to the record do not merit appellate
consideration. We will not search the record for errors in order to interpret appellant’s
contention and correct deficiencies in a brief.” Buchanan, 14 Va. App. at 56, 415 S.E.2d at 239.
Record No. 1107-06-4, Questions Presented VI
Contempt Finding
Father contends that the trial court erred in finding him in contempt and ordering him to
submit a written plan as to how he will comply with the court’s orders when father had already
submitted such a plan as part of a January 3, 2006 motion. Father also argues the court erred in
continuing to find father in contempt after his counsel explained that he did not want to submit
another plan for how to comply with the court’s orders because he was concerned such a plan
would violate his due process rights and harm his ability to appeal.
The trial court set out clear conditions for father’s release from incarceration, instructing
him to submit a written plan as to how he would obey the court’s orders. Father refused to do so.
The “plan” he submitted on January 3, 2006 included a provision that Benjamin could visit father
as often as he likes, as long as Benjamin is returned to mother’s house by 5:30 p.m. This
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provision was a right the December 9, 2005 order did not grant father. In addition, father
continuously disobeyed the court’s orders, from picking up Benjamin when the court order
forbade it in December of 2005, to refusing to submit a plan as to how he would comply with the
court’s orders, to telephoning Benjamin within hours of being released from incarceration. The
trial court did not err, therefore, in finding father in contempt, in incarcerating him, or in refusing
to grant him visitation with Benjamin.
Attorney Fees
Both parties have requested that this Court award costs and attorney’s fees for matters
related to these appeals. Because father’s appeals were clearly without merit, we deny his
request and we award costs and attorney’s fees to mother. We remand this case to the trial court
for a determination of attorney’s fees incurred in responding to these appeals. See O’Loughlin v.
O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).
CONCLUSION
For the reasons stated, we summarily affirm the decisions of the trial court. Rule 5A:27.
We remand to the trial court for a determination of the attorney’s fees incurred by mother in
these appeals.
Affirmed and remanded.
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