Michelle D. Mercurio v. Scott M. Mercurio

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Alston and Senior Judge Clements
Argued at Richmond, Virginia
MICHELLE D. MERCURIO
MEMORANDUM OPINION * BY
v. Record No. 0401-09-2 JUDGE JEAN HARRISON CLEMENTS
NOVEMBER 3, 2009
SCOTT M. MERCURIO
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
Samuel E. Campbell, Judge
Adrienne George-Eliades (The Eliades Law Firm, P.L.L.C., on
brief), for appellant.
No brief or argument for appellee.
(Rosalyn Vergara, on brief), Guardian ad litem for the infant child.
Guardian ad litem submitting on brief.
Michelle D. Mercurio (mother) appeals an order of the trial court awarding sole legal and
physical custody of the parties’ child to Scott M. Mercurio (father). Mother contends the trial court
erred by (1) reading and considering evidence from the Hopewell Juvenile and Domestic Relations
District Court (the JDR court) proceedings prior to hearing this matter de novo; (2) reading and
considering the guardian ad litem’s (GAL) report(s) prior to hearing this matter de novo;
(3) applying an incorrect de novo standard of review; (4) failing to recuse itself for having read the
GAL’s report(s) and portions of the proceedings appealed from before a trial de novo; (5) taking
judicial notice of reasons why parents in pending custody cases visit their children for lunch and by
doing so without advising the parties in advance that he would apply such knowledge; (6) finding
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
that it would be in the child’s best interests that custody remain with father 1 ; and (7) waiving the
endorsement of counsel and failing to allow counsel to state and note their objections on the record
notwithstanding counsel’s request to do so prior to entry of the order. Finding no error, we affirm
the trial court’s decision.
BACKGROUND
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal.
On December 12, 2006, the trial court awarded custody of the minor child to father. Father
and the child resided in Massachusetts. Subsequently, the Massachusetts Department of Social
Services founded an abuse complaint against father regarding the parties’ child. As a result of that
finding, mother filed a motion for a change of custody in the JDR court on August 16, 2007. The
JDR court awarded her temporary custody of the child. Mother enrolled the child in school in
Hopewell, and father moved to Virginia and began counseling. The JDR court amended the order
to award father temporary custody of the child and ordered Dr. Penny Sprecher to perform a
psychological evaluation of the child. The child remained in the same school, began counseling,
and was evaluated for ADHD medication. In May or June of 2008, father moved to Ladysmith,
Virginia. In the summer of 2008, the parties shared custody of the child. On August 27, 2008, the
JDR court awarded sole custody to father, and mother appealed.
After hearing the evidence and argument of the parties on January 26, 2009, the trial court
awarded sole custody to father. The trial court emphasized the child’s need for stability and
1
The GAL also listed this issue in her brief, and argues that the trial court erred in
finding that the best interests of the child would be served by his custody remaining with father
notwithstanding the evidence and recommendation of the GAL.
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security, especially because he was diagnosed with ADHD. The trial court emphasized that the
custody matter had been litigated numerous times and needed to stop. The trial court found that it
was in the child’s best interests to remain with father. Mother timely noted her appeal.
ANALYSIS
Issue 1 - Evidence from the JDR court
Mother argues that the trial court erred in considering Dr. Sprecher’s report, which was
filed in the JDR court and thereafter in the trial court, prior to hearing the matter de novo. 2
During Dr. Sprecher’s testimony, the trial court stated that it had reviewed “some of the report”
and that “[s]he and I have different views.” Mother did not note her objection to this statement
until her motion for reconsideration.
The Court of Appeals will not consider a claim of trial court error as a ground for reversal
“where no timely objection was made, except to attain the ends of justice.” Marshall v.
Commonwealth, 26 Va. App. 627, 636, 496 S.E.2d 120, 125 (1998) (citing Rule 5A:18). “To be
timely, an objection must be made when the occasion arises -- at the time the evidence is offered
or the statement made.” Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168
(1986).
By waiting until the motion for reconsideration to note her objection, mother did not
provide the trial court with an opportunity to address the issue until after its decision on the
merits. Because the objection was not timely, Rule 5A:18 bars our consideration of this issue on
appeal.
Moreover, any potential error committed by the trial court was harmless because the trial
court did not rely on Dr. Sprecher’s report in its ruling. See King v. Cooley, 274 Va. 374, 379, 650
2
Dr. Sprecher’s report was not admitted into evidence in the trial court.
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S.E.2d 523, 526 (2007) (“Under the doctrine of harmless error, we will affirm the circuit court’s
judgment when we can conclude that the error at issue could not have affected the [result].”).
Issue 2 – GAL reports
Mother contends the trial court erred in reading and considering the GAL’s report(s) prior to
hearing this matter de novo.
The GAL filed an “Addendum to the Report of the Guardian Ad Litem” in the trial court on
December 1, 2008, the day before the custody matter was originally scheduled to be heard. Mother
filed a motion in limine and argued that the trial court should not consider the GAL’s report.
Mother alleged that the report contained impermissible hearsay. Mother also argued that the trial
court could not consider any reports or evidence from the JDR court.
At the hearing, the trial court stated that it had not seen or read the GAL report. The
December 8, 2008 order states, “That this is a trial de novo and therefore the Court may not consider
the filings and evidence previously introduced in the juvenile court.” The December 8, 2008 order
also states, “The issue remains as to whether or not the Court may consider, over the objection of
counsel, the current report filed by the guardian on December 1, 2008.” The trial court never ruled
on the issue.
The GAL’s report was not submitted as evidence at the hearing, although the trial court
mentioned that the GAL had a recommendation for custody in her report, which the trial court “has
seen.”
Rule 5A:20(e) mandates that appellant’s opening brief include “[t]he principles of law,
the argument, and the authorities relating to each question presented . . . .” Mother did not
comply with Rule 5A:20(e) because her opening brief does not contain any principles of law, or
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citation to legal authorities, or the record to fully develop her argument that the trial court erred
in reviewing the GAL’s addendum filed December 1, 2008. 3
Mother has the burden of showing that reversible error was committed. See Lutes v.
Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992). Unsupported assertions of
error “do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992). Furthermore this Court “will not search the record for errors in order to
interpret the appellant’s contention and correct deficiencies in a brief.” Id.We find that mother’s failure to comply with Rule 5A:20(e) is significant, so we will not
consider whether the trial court erred in reading and considering the GAL’s report(s). See
Fadness v. Fadness, 52 Va. App. 833, 851, 667 S.E.2d 857, 866 (2008) (“If the parties believed
that the circuit court erred, it was their duty to present that error to us with legal authority to
support their contention.”); Parks v. Parks, 52 Va. App. 663, 664, 666 S.E.2d 547, 548 (2008).
Issue 3 – De novo standard of review
Mother argues that the trial court erred in its application of the de novo standard of review.
She contends the trial court restricted her from presenting evidence prior to the JDR ruling of
August 27, 2008, even though the last custody order was December 12, 2006.
In its December 8, 2008 order, the trial court correctly stated the de novo standard of review,
when it explained that “this is a trial de novo and therefore the Court may not consider the filings
and evidence previously introduced in the juvenile court.” However, during the trial, the following
exchange occurred between the trial court and mother’s counsel regarding the de novo standard:
THE COURT: She’s entitled to testify as to any change of
circumstance since the order was entered. You’ve gone clear back
to the whole thing, Ms. Eliades.
3
The trial court clearly stated in its order dated December 8, 2008 that it was not going to
consider any evidence or reports from the JDR court; therefore, the issue is limited to the GAL’s
addendum.
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MS. GEORGE-ELIADES: No, Your Honor, if I may. I
have covered from December ’06 until today, which is what I’m
required to do.
* * * * * * *
THE COURT: In 27 August ’08, what was the order of the
court – J & DR Court?
MS. GEORGE-ELIADES: Your Honor, that’s the order
that’s been appealed. But we have to show a change in
circumstances from December ’06.
THE COURT: How do you get past the 27 August ’08?
MS. GEORGE-ELIADES: I get past that because on trial
de novo, this Court is required to consider all of the evidence of a
change in circumstances since the order that’s been moved to
amend until date of trial, which is today. We’re on trial de novo.
* * * * * * *
THE COURT: You’re telling me that you can skip the
August order of Judge Waymack?
MS. GEORGE-ELIADES: Because it’s trial de novo, Your
Honor. It is trial de novo. I am not –
THE COURT: It goes back to the original all of the time?
MS. GEORGE-ELIADES: Yes. Every time. I am here –
* * * * * * *
THE COURT: Let’s keep going. He hasn’t objected. This
is just the Court speaking. I’d like to see what’s going on here. I
can’t say I agree with you.
“We have repeatedly held that an appeal to the circuit court from a court not of record
under Code § 16.1-136 annuls the judgment of the inferior tribunal as completely as if there had
been no previous trial . . . and that such a trial de novo in the circuit court grants to a litigant
every advantage which would have been his had the case been tried originally in such court.”
Walker v. Department of Public Welfare, 233 Va. 557, 563, 290 S.E.2d 887, 890 (1982)
(citations omitted).
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“A party appealing to a circuit court has the right to a de novo trial ‘unhampered and
unprejudiced’ by the lower court’s ruling.” Alexander v. Flowers, 51 Va. App. 404, 414, 658
S.E.2d 355, 359 (2008) (quoting Baylor v. Commonwealth, 190 Va. 116, 120, 56 S.E.2d 77, 79
(1949)).
Despite the trial court’s comments, the trial court allowed mother to present her evidence.
For example, mother presented evidence from the child’s previous teacher and guidance
counselor. The child was in their school during the 2007-2008 school year. There was evidence
about the mother eating lunch with the child during the 2007-2008 school year. Mother testified
about the events in August 2007 that led her to file a motion to change custody. Even after the
discussion that mother’s counsel had with the trial judge about the de novo standard, mother
testified about packing the child’s lunch during the 2007-2008 school year. When father
testified, mother asked on cross-examination about his anger management classes in October
2006 and the child’s need for medication in the fall of 2007. Mother also argued in closing
argument about events that occurred prior to August 2008. In its ruling, the trial court cited to
the teacher’s and guidance counselor’s testimony. He also mentioned Dr. Sprecher’s testimony,
yet her evaluation of the child occurred between January and March 2008. Although the trial
court seemed to misstate the de novo standard in its discussion with counsel, the trial court did
not prevent mother from presenting her evidence and making her argument. Therefore, the trial
court did not err in applying the de novo standard of review.
Issue 4 – Recusal
Mother argues that the trial court abused its discretion by failing to recuse itself for having
read the GAL’s report(s) and portions of the proceedings appealed from before a trial de novo.4 At
4
At docket call, mother asked the trial court judge to recuse himself from hearing this case
because “this was appealed once before a while ago. There have been issues that have been brought
since and there was an issue that was brought up with respect to noting an appeal in this matter.”
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no point during the hearing did mother ask the trial court to recuse itself because it allegedly read
the GAL reports and portions of the JDR proceedings. 5
“No ruling of the trial court . . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the time of the ruling, except for good
cause shown or to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18. We
“will not consider an argument on appeal which was not presented to the trial court.” Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “The purpose of Rule
5A:18 is to allow the trial court to correct in the trial court any error that is called to its
attention.” Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc). There was
no miscarriage of justice in this case, and the ends of justice exception does not apply.
Therefore, we will not consider whether the trial court abused its discretion in not recusing itself
because it allegedly read the GAL report(s) and evidence from the JDR proceedings.
Issue 5 – Judicial Notice
Mother argues that the trial court erred in taking judicial notice of reasons why parents in
pending custody cases visit their children for lunch.
During its ruling, the trial court stated:
There’s no question that there’s been some problems about – I
don’t want to say problems, but the mother has been able to visit
during school times for lunches.
The court pointed out to the teacher, isn’t that a time during
litigation that that’s when parents pick up their interest and all of a
sudden having lunches? 28 years of experience to the Court finds
that’s a true statement, [sic] that they do start visiting more when
there’s litigation going on. The teacher doesn’t have the same
The trial court initially agreed to set the case with another judge; however, due to scheduling
conflicts, the trial court judge was assigned the case. This issue of recusal is not part of the appeal.
5
Mother noted her objection on the final order but did not give the trial court a timely
opportunity to correct any potential error.
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experience so the Court does not weigh in one way or the other,
other than the Court has different experiences.
“A trial court may take judicial notice of those facts that are either (1) so ‘generally
known’ within the jurisdiction or (2) so ‘easily ascertainable’ by reference to reliable sources that
reasonably informed people in the community would not regard them as reasonably subject to
dispute.” Taylor v. Commonwealth, 28 Va. App. 1, 7-8, 502 S.E.2d 113, 116 (1998) (quoting
Ryan v. Commonwealth, 219 Va. 439, 445, 247 S.E.2d 698, 703 (1978)). “‘The taking of
judicial notice is generally within the discretion of the trial court.’” Id. at 8, 502 S.E.2d at 116(quoting Ryan, 219 Va. at 446, 247 S.E.2d at 703).
Mother contends the trial court erred in taking notice of how often and when parents in
custody cases visit their children for lunch. Mother took this isolated comment to argue that the trial
court erred in holding that custody should remain with father.
Absent clear evidence to the contrary in the record, the
judgment of a trial court comes to us on appeal with a presumption
that the law was correctly applied to the facts. Furthermore, we
will not fix upon isolated statements of the trial judge taken out of
the full context in which they were made, and use them as a
predicate for holding the law has been misapplied.
Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977).
We need to consider the entire record, and not one isolated comment, to determine
whether the trial court erred in awarding custody to father. Notwithstanding the judge’s
comments about parents visiting their children for lunch during custody disputes, the trial court’s
ruling is based on facts in the record.
Issue 6 – Child’s best interests
Mother and the GAL argue that the trial court erred in finding that it was in the child’s best
interests for custody to remain with father.
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“In matters of custody, visitation, and related child care issues, the court’s paramount
concern is always the best interests of the child.” Farley v. Farley, 9 Va. App. 326, 327-28, 387
S.E.2d 794, 795 (1990).
“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.” Brown v. Brown, 30 Va. App.
532, 538, 518 S.E.2d 336, 338 (1999).
A court “shall consider” the factors in Code § 20-124.3 to determine the “best interests of
a child” for custody or visitation. Code § 20-124.3. However, 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)).
Here, the trial court examined the factors in Code § 20-124.3 and found that it was in the
child’s best interest to remain in father’s custody. The child was seven years old, healthy, and
responding well to his ADHD medication. The trial court emphasized the child’s need for
stability and that the parents needed to refrain from “coming to Court every time you turn
around.” The trial court noted that each parent was involved in the child’s life and has a good
relationship with the child. Mother’s boyfriend was “questionable” due to a previous history of
abuse.
“Where the record contains credible evidence in support of the findings made by that
court, we may not retry the facts or substitute our view of the facts for those of the trial court.”
Ferguson v. Stafford County Dep’t of Soc. Servs., 14 Va. App. 333, 336, 417 S.E.2d 1, 2 (1992).
The evidence supports the trial court’s ruling. The trial court did not abuse its discretion
in awarding custody to father.
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Issue 7 – Endorsement and objections to the final order
Mother argues that the trial court abused its discretion in waiving the endorsement of
counsel to the final order and failing to allow counsel to note her objections on the record.
At the conclusion of the trial court’s ruling, the trial court announced that it would
prepare the final order. Mother requested that she be given the order prior to its entry so that she
could note her objections. The trial court agreed. However, on January 26, 2009, the trial court
entered the order prior to mother having an opportunity to note her objections. Mother filed a
motion to endorse order and motion for reconsideration. On February 12, 2009, the trial court
entered an order, nunc pro tunc January 26, 2009, granting leave to counsel to note her
objections to the custody order. Subsequently, mother filed her objections with the trial court.
Since the trial court gave mother the opportunity to endorse the order and file her objections, this
issue is moot. See United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980) (holding
that “mootness has two aspects: ‘when the issues presented are no longer “live” or the parties
lack a legally cognizable interest in the outcome’” (quoting Powell v. McCormack, 395 U.S.
486, 496 (1969))).
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
Affirmed.
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