Gregory Jude DeVeau v. Mutsumi Azemoto-DeVeau ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
GREGORY JUDE DeVEAU
MEMORANDUM OPINION * BY
v. Record No. 2481-99-4 JUDGE JAMES W. BENTON, JR.
JULY 25, 2000
MUTSUMI AZEMOTO-DeVEAU
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
Ted Kavrukov (Kavrukov, Mehrotra & DiJoseph,
on briefs), for appellant.
Richard F. MacDowell, Jr. (MacDowell &
Associates, P.C., on brief), for appellee.
The trial judge modified a prior visitation order changing
from supervised to unsupervised the visitation of Mutsumi
Azemoto-DeVeau with her children. In this appeal, Gregory Jude
DeVeau, the children's father and custodian, contends the trial
judge erred because no motion requesting unsupervised visitation
had been filed. For the reasons that follow, we reverse the
order.
I.
The record establishes that the mother and father were
divorced by decree entered in the circuit court on August 10,
1995. While the divorce suit was pending, the mother fled the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
jurisdiction of the court with one of their two children in
violation of a court order and was detained while attempting to
leave the country with the child. Following an evidentiary
hearing, a trial judge entered an order on May 1, 1995, finding
"that the evidence is overwhelming that [the mother] abduct[ed]
. . . the child [, which] was a premeditated, willful, deliberate
taking, despite a court order." The judge granted the father sole
custody of the two children, granted the mother supervised
visitation with the children, ordered the mother to surrender her
passport, and granted other relief. By order of July 28, 1995,
nunc pro tunc to June 8, 1995, that same judge continued unchanged
the supervised visitation. Various judges have entered other
orders since that time, including a ruling that the parties could
not file motions in the circuit court without advance permission.
On August 6, 1999, the mother filed in the circuit court a
motion to modify visitation. At that time, the visitations were
to be determined in accordance with an order dated December 20,
1995, which specified a schedule and procedures for the mother's
supervised visitation with the children. In her motion to modify
visitation, the mother alleged a series of difficulties with the
supervised visitations, including refusal of the supervisor to "do
Wednesday evening visitation," the availability of other competent
and less expensive supervisors, whom the father would not approve,
for Wednesday evening visitation, and various other matters
concerning disagreements with the father. As relief, the mother
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requested that the "Court designate another supervisor to
facilitate the Wednesday evening visitation, and to reinforce
weekend visitation and to give access to school events and contact
with the children's teacher, so the [mother] will be able to [be]
involved in the school education of her minor children."
Following a hearing in which the mother and father appeared
pro se, the trial judge entered an order suspending the
requirement for supervised visitation, requiring strict compliance
with the visitation schedule set by the December 20, 1995 order,
setting a hearing six months in the future "to review the parties'
compliance . . . and to determine whether supervised visitation
should be reinstated or discontinued," and granting other relief.
The father filed a motion for reconsideration alleging that the
mother's motion only "request[ed] to change the agreed upon
supervisor," that the father was not given notice "that suspension
of supervised visitation would be considered," that
"[u]nsupervised visitation was never mentioned at the hearing,"
and that, consequently, he was denied the opportunity to present
evidence that the mother had recently threatened to take the
children to Japan. The trial judge denied the motion for
reconsideration. This appeal followed.
II.
As a preliminary matter, we address the mother's contention
that this appeal rises from a non-final, interlocutory order.
This Court has jurisdiction over "[a]ny final judgment, order, or
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decree of the circuit court involving: . . . custody; . . .
[a]ny other domestic relations matter arising under . . . Title
20; . . . [and any] interlocutory . . . order entered in any of
the cases listed in this section . . . adjudicating the
principles of a cause." Code § 17.1-405.
In pertinent part the order recites as follows:
ADJUDGED, ORDERED, and DECREED as follows:
1) that Mr. DeVeau shall not take any of
his vacation when it conflicts with Ms.
Azemoto's visitation;
2) that the requirement for supervised
visitation shall be suspended;
3) that Ms. Azemoto shall pay child support
on a weekly basis in the amount of $86.53;
4) that the parties shall strictly adhere
to the visitation schedule set forth in the
Consent Order that Judge Jamborsky entered
on December 20, 1995;
5) that the parties shall share
responsibility for the transportation of the
children to visitation and shall cooperate
in transporting the children between Ms.
Azemoto's home in Alexandria, Virginia, and
Mr. DeVeau's home in Annapolis, Maryland;
and
6) that Ms. Azemoto shall not take the
children out of a fifty-mile radius of the
Washington, D.C. metropolitan area or
Annapolis, Maryland area without prior leave
of Court.
THIS MATTER IS CONTINUED to Judge Roush's
docket on April 7, 2000, for the Court to
review the parties' compliance with this
Order and to determine whether supervised
visitation should be reinstated or
discontinued.
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When an order grants all the relief that was sought and
leaves only ministerial execution to insure compliance with the
order, it is a final decree. See Feldman v. Rucker, 201 Va. 11,
17, 109 S.E.2d 379, 384 (1959). The recitals of the relief
decreed in the above order clearly indicate that the order
disposes of the issue raised by the motion, gives all the relief
contemplated, and sets a date certain, six months from its
entry, to review the parties' compliance. The fact that the
trial judge reserves the right to revisit the issue if there is
non-compliance does not mean that the order is not final. The
order clearly suspended the requirement that visitation be
unsupervised upon entry of the order. See Newsome v. Newsome,
18 Va. App. 22, 25-27, 441 S.E.2d 346, 348-49 (1994).
Even if we assume, however, that review six months later to
determine compliance makes the order non-final, the order
adjudicates the principles of the cause. The principle is well
established that to adjudicate the principles of the cause, the
order must determine that "the rules or methods by which the
rights of the parties are to be finally worked out have been so
far determined that it is only necessary to apply those rules or
methods to the facts of the case in order to ascertain the
relative rights of the parties, with regard to the subject
matter of the suit." Lee v. Lee, 142 Va. 244, 252-53, 128 S.E.
524, 527 (1925). Thus, "[a]n interlocutory order . . . that
adjudicates the principles of a cause is one which must
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'determine the rights of the parties' and 'would of necessity
affect the final order in the case.'" Erikson v. Erikson, 19
Va. App. 389, 391, 451 S.E.2d 711, 713 (1994) (citation
omitted). It is an order that "respond[s] to the chief object
of the suit." Pinkard v. Pinkard, 12 Va. App. 848, 852, 407
S.E.2d 339, 341-42 (1991). Thus, the Supreme Court has held
that an order that did not end the cause by striking it from the
docket may nonetheless adjudicate the principles of the cause.
See Crestar Bank v. Williams, 250 Va. 198, 208, 462 S.E.2d 333,
337 (1995); Snidow v. Snidow, 192 Va. 60, 61, 63 S.E.2d 620, 620
(1951).
The trial judge did nothing more than retain the matter on
the docket so that she could more easily review the parties'
compliance with the order. The order was final when entered
because it "dispose[d] of the whole subject, [gave] all the
relief contemplated, provide[d] . . . reasonable completeness
for giving effect to [its terms], and [left] nothing to be done
in the cause save to superintend ministerially the execution of
the order." Newsome, 18 Va. App. at 26, 441 S.E.2d at 348(citation omitted); see also Weizenbaum v. Weizenbaum, 12 Va.
App. 899, 901, 407 S.E.2d 37, 38 (1991) (holding that an order
granting a divorce and denying periodic spousal support but
taking under advisement a motion for lump sum alimony was a
final, appealable order as to the divorce on the date of entry).
Accordingly, we hold that the order is appealable.
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III.
"Fundamental rules of pleading provide that no court can
base its judgment or decree upon a right which has not been
pleaded and claimed." Boyd v. Boyd, 2 Va. App. 16, 18, 340
S.E.2d 578, 580 (1986). The purpose in requiring "pleadings is
to give notice to the opposing party of the nature and character
of the claim, without which the most rudimentary due process
safeguards would be denied." Id. at 19, 340 S.E.2d at 580.
"The basis of every right of recovery under
our system of jurisprudence is a pleading
setting forth facts warranting the granting
of the relief sought. It is the sine qua
non of every judgment or decree. No court
can base its decree upon facts not alleged,
nor render its judgment upon a right,
however meritorious, which has not been
pleaded and claimed. . . . Pleadings are as
essential as proof, the one being unavailing
without the other. A decree cannot be
entered in the absence of pleadings upon
which to found the same, and if so entered
it is void. . . . Every litigant is
entitled to be told by his adversary in
plain and explicit language what is his
ground of complaint or defense. . . . The
issues in a case are made by the pleadings,
and not by the testimony of witnesses or
other evidence."
Gologanoff v. Gologanoff, 6 Va. App. 340, 346, 369 S.E.2d 446,
449 (1988) (citations omitted).
The record undisputedly establishes that the mother's
motion for modification of visitation contained no suggestion,
explicit or implicit, that she sought to remove the requirement
for supervised visitations. In this regard, the motion
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specifically requested only that the "Court designate another
supervisor to facilitate the Wednesday evening visitation."
(Emphasis added). Moreover, the statement of facts also
indicates that the mother "testified . . . that the current
supervisor was too expensive, which was causing the inconsistent
visitation." The mother also presented testimony of a witness
who "stated that she would be willing to supervise visitation at
a less expensive rate than that charged by [the current
supervisor]."
Neither the motion nor any other pleading gave the father
notice that he would be subject to the relief that the trial
judge ordered. In view of the incident that gave rise to the
condition of supervised visitation, the best interest of the
children and the due process rights of the father were not
safeguarded by ordering relief that significantly departed from
the tenor of the pleadings on the relief requested. Thus, we
hold that the trial judge erred in removing the requirement of
supervised visitation without prior notice to the father.
In view of this Court's previous order staying the effect
of the trial judge's order and the passage of nine months since
the entry of the trial judge's order, we reverse that portion of
the trial judge's October 6, 1999 order granting the mother
unsupervised visitation, and we remand this matter to the
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circuit court for further proceedings upon proper notice if the
parties be so advised.
Reversed and remanded.
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