Shannon Renee Wandell, f/k/a Shannon Renee Blankenship v. David Justin Connelly

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Beales and Senior Judge Clements
UNPUBLISHED
SHANNON RENEE WANDELL, F/K/A
SHANNON RENEE BLANKENSHIP
MEMORANDUM OPINION *
v. Record No. 2225-12-2 PER CURIAM
JUNE 11, 2013
DAVID JUSTIN CONNELLY
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Catherine C. Hammond, Judge
(Julie A. Currin, on briefs), for appellant.
(Anthony Paone, II; Innsbrook Law Group, PC, on brief), for
appellee.
(Krista Mathis Samuels; Samuels Law Firm, on brief), Guardian
ad litem for the infant child.
Shannon Renee Wandell (mother) appeals the November 6, 2012 order changing child
custody and visitation of the minor child. Mother argues that the trial court erred when it (1) entered
an ex parte order changing custody and visitation, (2) refused to admit into evidence a DVD
because it contained relevant information on the issue of custody, (3) declined to consider certain
medical records of David Justin Connelly (father), (4) refused to admit into evidence police reports
demonstrating domestic disturbances at father’s residence, (5) failed to consider father’s criminal
history, and (6) and failed to fully consider the relevant factors of Code § 20-124.3. Mother also
argues the guardian ad litem failed to meet applicable standards by not promptly and thoroughly
investigating child’s time with father (Assignment of Error 7). Upon reviewing the record and
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
briefs, we conclude that this appeal is without merit. Accordingly, we summarily affirm the
decision of the trial court. See Rule 5A:27.
Father and mother each filed motions to amend the custody and visitation of the child.
On May 15, 2012, the juvenile and domestic relations district court denied the motions and father
appealed to the circuit court. On September 14, 2012, the circuit court entered a pendente lite
order ex parte ordering mother to return the child to father, granting father a protective order
prohibiting mother with having contact with the child, and setting the matter for a full hearing on
October 15, 2012. At a hearing on October 1, 2012, the circuit court found that mother violated
the September 14, 2012 order by not returning the child to father. At the hearing on October 15,
2012, the circuit court granted primary physical custody of the child to father, with certain
visitation for mother. On November 5, 2012, the circuit court held a hearing on father’s motion
to amend custody. The circuit court found that there had been a material change in
circumstances since the prior custody order and it was in the best interests of the child to change
the custody and visitation. The circuit court granted father sole legal custody and primary
physical custody, with certain visitation for mother.
ASSIGNMENTS OF ERROR NUMBERED ONE, TWO, THREE, FOUR, FIVE, AND SEVEN
Assignments of error numbered one, two, three, four, five, and seven relate to the hearing
held on October 1, 2012. 1
1
In response to an April 5, 2013 letter from this Court, mother filed a replacement
appendix, but the appendix did not include the initial pleading, the final order, and the transcript
or statement of facts for the hearings as required by Rule 5A:25. Mother’s replacement appendix
merely referenced pages in the circuit court’s record. Included in the record are the transcript
from the October 1, 2012 hearing and a partial transcript from the October 15, 2012 hearing.
Assignment of error number seven may also relate to the October 15, 2012 and the November 5,
2012 hearings.
On April 22, 2013, father filed a motion to dismiss or deny the appeal because mother
failed to file an appendix as required by the Rule 5A:25, she failed to file an appropriate notice
of the filing of the transcript as required by Rule 5A:8(b), and the replacement appendix violated
the terms of this Court’s April 5, 2013 letter. Based upon a review of the circumstances, father’s
motion to dismiss or deny mother’s appeal is denied.
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“Rule 5A:20(e) requires an appellant’s opening brief contain the argument and the
principles of law and authorities related to each assignment of error. Mother’s brief in support of
appeal falls short of the threshold showing of advocacy necessary to warrant serious appellate
review because she failed to cite any authority or develop the argument related to these
assignments of error. 2 We cannot decide a case based solely on “conclusory assertions,” Boyd v.
County of Henrico, 42 Va. App. 495, 506 n.6, 592 S.E.2d 768, 773 n.6 (2004) (en banc), or
“undeveloped arguments,” Sfreddo v. Sfreddo, 59 Va. App. 471, 494, 720 S.E.2d 145, 157
(2012). When the advocacy deficit crosses the line from insignificant to “significant,” as it
clearly has here, we decline the opportunity to bolster appellant’s inadequate presentation and,
instead, treat the underlying issues as waived. Parks v. Parks, 52 Va. App. 663, 664, 666 S.E.2d
547, 548 (2008) (citing Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008)).
ASSIGNMENT OF ERROR NUMBER SIX
Assignment of error number six relates to the November 5, 2012 hearing. Appellant
failed to file a transcript or a statement of facts for this hearing. We have reviewed the record
and the opening brief. We conclude that a transcript or written statement of facts is
indispensable to a determination of this assignment of error on appeal. See Anderson v.
Commonwealth, 13 Va. App. 506, 508-09, 413 S.E.2d 75, 76-77 (1992); Turner v.
Commonwealth, 2 Va. App. 96, 99-100, 341 S.E.2d 400, 402 (1986).
ATTORNEY’S FEES ON APPEAL
Father seeks an award of his appellate attorney’s fees and costs. See O’Loughlin v.
O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Upon consideration of the record
before us, we remand to the trial court with direction to make father a reasonable award of
attorney’s fees and costs incurred by him in this appeal.
2
Mother’s replacement brief cited only authorities related to the standard of appeal.
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CONCLUSION
For the foregoing reasons, the circuit’s court’s decision is summarily affirmed, and we
remand this case to the trial court for determination and award to father of appropriate appellate
attorney’s fees and costs.
Affirmed and remanded.
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