Virginia Family Law Appeals

Switzer v. Fridley: Father's 11-year battle against non-parents' custody

CUSTODY – THIRD-PARTY CUSTODY – NATURAL-PARENT VISITATION –APPEALS – SPECIFICITY OF PLEADING – WAIVER OF ARGUMENTS – PERSISTENT PRO-SE LITIGANTS – SANCTIONS. The unfortunate Mr. Switzer, who had his child taken away to be placed with a (then) unmarried cohabiting couple, has managed to infuriate the trial and appellate judges again with his tenacious – some might say masochistic – persistence. The Court of Appeals, in Switzer v. Fridley, unpublished, 26 VLW 504 (9/27/11), with a level of wrath as well as frustration which must be fairly high by now, gives what appears to be a patient and orderly consideration to a great many of the legal issues that this pro se appellant determinedly continues to raise. (This father has been fighting the various custody, visitation and record-access decisions for the past 11 years. On May 29, 2010 the Augusta County Circuit Court issued an Order “ending all cases” and remanding everything to the juvenile court, and the current appeal challenges all aspects of that decision, as well as past decisions, most of which the appellate courts have already ruled upon.) The decision to allow the third parties to seek and obtain custody of his child was upheld against this father’s constitutional and statutory arguments, and that matter is res judicata. The same is true of Switzer’s appeal of the denial of his modification motions. The emergency protective order against release of the child’s academic or health records to the father was also upheld on a previous appeal by summary affirmance since Switzer had no transcript or statement of facts to provide a written record, and that is also res judicata. As for the appellant’s arguments that all of this constitutes a refusal to rule on valid constitutional questions, that too has been determined before. The trial court had turned down the father’s modification motions and petitions, inter alia, for failure to show a change of circumstances. Though he now argues on appeal that the trial court erred by using an improper date to determine what was new evidence and what was old evidence to show change of circumstances, the way the appellate argument came up (the last time he appealed this) the father was not arguing that the date was wrong, but rather, that it was unnecessary for him to prove a change of circumstances at all (citing a 1962 U.S. Supreme Court case, which the trial court and the appellate court held does not apply here.) This time, though, the Court of Appeals does go through the original facts of this custody decision against Mr. Switzer, showing the rather dubious factual picture which originally persuaded the trial court to make those orders and then deny the father anything but extremely limited visitation. These decisions were, however, within the discretion of the trial judges, and a closer look at the original (and evolving) facts does show the father being his own worst enemy in this unseemly drama. The trial court’s denial of his motions to change custody and visitation, after hearings in June and August of 2010, did not exceed the judge’s discretion. Mr. Switzer also argued that it was error and an abuse of discretion for the trial court to consider the amount of time his son had lived with the new custodians as a bar to his ever regaining custody. He elaborated on this by saying there were no expert opinions stating that the son would be harmed by a change of custody back to him. The trial court had found the father to be unfit, and nothing that the father cited showed that the trial court indeed had relied on the length of time involved. As to the lack of expert opinions, there had been no assignment of error, as such, about that. (Visitation supervision and grandparent visitation were really non-issues.) The trial court had declared in its opinion letter that it imposed a sanction in order to “limit his ability to continue to pursue this case” on matters already decided. It made a finding that he had abused the judicial system by asserting meritless claims and wasted valuable and limited resources in frivolous litigation, and harassing the other parties by dragging them into court. The sanction imposed was to order Switzer not to file anything without obtaining court permission for the filing. He argued on appeal that the previous Switzer ruling from the Supreme Court, Switzer v. Switzer, 273 Va. 326, 641 S.E.2d 80 (2007), forbids any trial court or Court of Appeals action that might compromise his rights of appeal, and that the court does not have jurisdiction to impose that kind of sanction. Quoting the statute, §8.01-271.1, the Court of Appeals explained that there really is no limit on what kind of “appropriate sanction” a judge is authorized to impose in order to accomplish the purposes stated in the statute. Sanction decisions are reversible only if judicial discretion in imposing the sanctions, or in the choice of sanction, was exceeded. The Supreme Court Switzer case held, not that the Court of Appeals lacked the authority to dismiss the appeal as a sanction, but only that dismissal under the circumstances was an unduly severe sanction, not properly tailored to correct the problem involved. In fact, when the Supreme Court reversed the Court of Appeals on this particular point as to Switzer, it specifically said that a trial court does not have to use “the ultimate sanction of dismissal” when the same might be accomplished by a lesser sanction such as pre-filing permission requirements. The Court of Appeals said this lesser sanction was justified given Switzer’s history of filing numerous documents for over a decade, most of which were frivolous or harassing.

Zurita: CUSTODY MODIFICATION – RELOCATION – CONSTITUTIONAL LAW – SEPARATION OF POWERS – SCHOOL PLACEMENTS.

A trial judge’s attempt to find a novel way of undercutting a father’s case for custody modification on the occasion of a mother’s move out of the original school district led to a constitutional ruling from the Virginia Supreme Court because it caused this judge to tangle with the local school board.  In an opinion involving constitutional law principles rather than custody law issues, the Supreme Court vacated an order that the school authorities enroll the child in a district where neither one of the parties any longer lived.  One of the couple’s two sons, in the mother’s custody, was getting special education. The father had moved out of the district first and the mother later.  Upon her move he sued to modify custody, saying that he would be glad to move back to the original school district if he could have primary custody of the two boys.  This threat to the mother’s continued custody was met by a circuit court order for the school board to enroll the child in the old district this year, despite no residency, even though the school board’s rule is that the child must attend in the district where the parent with primary custody lives.  The school board managed to get immediate appeal of this injunctive order under §8.01-626 as an appeal from an injunction. The school board argued not only that the judges can’t issue injunctions usurping the school board’s constitutional authority over pupil assignments, but also that the issue matters a lot because 9% of the county’s students have parents with different home addresses, and making the school board a participant in any of the thousands of divorce and child custody cases litigated there would be impractical and burdensome in the extreme, and it should have a right to use the simple rule of primary custodial residence.  The Court vacated the injunction in a two-page order.  Fairfax County School Board v. Zurita, 25 VLW 453 (9/28/10). 

 

CUSTODY – MODIFICATION upheld in David v. Belcher

An unpublished Suffolk County case from the Court of Appeals might otherwise be undistinguished from the common run of custody appeals, except that it shows a father having come from behind to get a modification of custody, and an award of primary physical custody, to him after making an all-to-common mistake in the emotional heat of the moment at the time of separation, which mistake was apparently treated by everyone involved like a crime.  Having threatened suicide at that time, and accordingly having received only supervised visitation in the original order, he underwent “treatment” as well as psychological evaluation, and was totally cooperative with the new regime, whereas the evidence was that the mother was not.  When the husband tried to get visitation with the revised court order that allowed him to visit unsupervised, the mother “tended to” deny visitation.  The trial judge, weighing all the factors and all the evidence – as to some of which he found the mother’s not credible and credited husband’s evidence instead – found that the husband’s evidence and arguments prevailed.  The Court of Appeals is not about to disturb this as it affirms in the opinion styled David v. Belcher, unpublished, 24 VLW 1214 (4/13/10), since the trial judge specifically stated that he took each statutory factor into account, and assigned no factor more weight than any other, apparently recited the facts set forth above, and based the decision on all of them.

Demuth: CUSTODY – RELOCATION – PREVENTIVE CONDITIONAL CUSTODY AWARD.

 It can conceivably be all right, in the proper procedural context, to deny a mother’s relocation of the children out of state.  But woe betide a trial court that holds it’s in the best interests of the children to live with the mother, provided she stays here.  As the Court of Appeals points out in the unpublished opinion in Demuth v. Demuth, 23 VLW 527 (10/7/08), it is absolutely forbidden for a judge to indulge in “pure speculation” that the move, at such time as it might come, would not indeed be just fine and dandy for the best interests of the children.  This judge, the Court of Appeals says, should have prohibited the permanent removal of the child from Virginia if he didn’t like it. Setting up an automatic change in custody should a mother move cannot be lawfully done.  To the father’s argument that there was nothing speculative at all about the mother’s moving the children to Texas, since she had specifically stated her intent to do that when they went into court in the first place, the Court of Appeals says that there was nothing in the record establishing that the mother was in fact moving, and in fact she had indicated that she would rather stay here than “lose custody.”  It is impermissible to assume that the mother will move without filing the relocation notice that the divorce decree required her to file, and should she in fact file and serve that paper, the father can then go into court and seek a custody modification, no matter how recent the last order was.  This circuit court abused its discretion by supposedly prejudging the issue.

Westreich: CUSTODY – FACTORS – RELOCATION PLANS – FALSE CPS REPORTS.

CUSTODY – FACTORS – RELOCATION PLANS – FALSE CPS REPORTS.  Some things that can go wrong for even a mother in a child custody fight are illustrated by the unpublished opinion in Westreich v. Westreich, 23 VLW 588 (10/14/08), in which the Court of Appeals upheld a decision giving the father primary physical custody.  The trial court had based its decision on what it euphemistically called “instability and poor judgment calls.” Which included mother’s plan, and her later attempt in court to deny that plan, to marry another man and move the children to Maryland.  The facts which came out included an e-mail to her mother about seeking a Maryland job, which also said and that there were more opportunities for the children in Maryland and the religious environment was more congenial to her.  Other evidence the court relied on included the mother’s filing a false Child Protective Services report against the father about inappropriately touching the children, which CPS found unfounded and which the mother then tried to deny that she had made.     It also considered the mother’s relationship with the boy friend, considered by the trial judge “confusing” for the children.  The Court of Appeals said that the judge did not abuse his discretion by looking at these matters, that the evidence itself showed that the judge had considered all of the applicable statutory factors, and (over mother’s objection) that the judge did not have to state which weight each factor was given.

Rodgers v. Rodgers: CUSTODY – MODIFICATION – CHANGED CIRCUMSTANCES OR NOT – HAIRCUT INCIDENT – APPEALS – INCOMPLETE RECORD – DE NOVO APPEALS FROM JDR COURT – NEW-HEARING REQUIREMENT.

CUSTODY – MODIFICATION – CHANGED CIRCUMSTANCES OR NOT – HAIRCUT INCIDENT – APPEALS – INCOMPLETE RECORD – DE NOVO APPEALS FROM JDR COURT – NEW-HEARING REQUIREMENT.  When the appellant father in Rodgers v. Rodgers, unpublished, 23 VLW 407 (9/30/08) came in alleging that the trial court had no business changing custody from joint to sole custody with mother because there was no change of circumstances except his taking the son to get a haircut, the Court of Appeals unloaded on him saying essentially “Oh yeah?  What about this?”  And to prove that there was indeed more change of circumstances, there follows an impressive list of mere-conclusory horribles that sound suspiciously like getting the kid a haircut – after a viciously adversary advocate gets through with it, of course.  In a brief discussion that makes one wonder whatever happened to the Virginia Rule that required “fact pleading,” we learn from the slip opinion that the court below in fact found that the father was guilty of “disruptive and destructive behaviors toward the child,” and “did not follow the prior orders relating to communications with mother, including notifying mother of significant issues,” and furthermore “made disparaging remarks about mother and ... put his needs before the child’s needs.”  The pro se father also may have thought he had a pretty good issue to take to this Court of Appeals when he alleged that the circuit court below didn’t really afford him a de novo trial, but just rubber-stamped the decision of the juvenile court.  Well he strikes out there as well, because the circuit court order, as quoted by the appellate court, said, “the Court does award sole custody of the child ... to the father.  The Court makes this award for the same reasons as expressed by the [JDR Judge] ... in her order dated June 6, 2006.  The Court adopts her reasoning by reference,” adding that “the Court did conduct a hearing ore tenus.”  Well sure it’s a requirement that the circuit court hold a real de novo trial, the Court of Appeals says, but here there is no way to determine whether that requirement was met, because there would be no way to determine that question if there wasn’t a transcript “or summary” of the circuit court proceedings, so that issue can’t be considered.

Armstrong v. Hoover: JOINT CUSTODY AND CHOICE OF ELEMENTARY SCHOOLS.

Do Virginia judges make orders about what grade school a kid should go to when the parents don't agree?  A Fairfax judge did, and the Court of Appeals affirms.  The parents had joint custody, but the judge decided that father was wrong in enrolling the son in a school in his neighborhood when mother's local school got higher test scores, she had the "primary residence," and they had agreed before separation on that school.  The trial judge apparently saw this as a contempt matter for enforcement of the prior custody decree.  But even though the trial judge erred in calling her current school-choice order a "sanction," what she was really doing in Armstrong v. Hoover, unpublished, 20 VLW 1530 (4/11/06) was exercising her modification authority under Code § 20-108, the Court of Appeals says.

Sirney v. Sirney: CHILD CUSTODY – BEST INTERESTS – DECLINE IN VISITATION AND COMMUNICATION – HOMOSEXUAL PARENTS – NEW ADULT RELATIONSHIPS.

When deterioration of a parent-child relationship is cited as the reason for a custody decision pushing that parent even farther out of the child’s life, does it matter if the degradation of the relationship is in significant part attributable to the parent who benefits by the change?  Maybe so, maybe not, as all custody cases are indisputably fact-tied and individually different.  With that said, an unpublished case called Sirney v. Sirney, 22 VLW 1011 (12/27/07) is enormously instructive.  To sum up with brutal brevity, the trial court held that the mother, living on the opposite end of the country, had other distractions and failed to “put her children first.” 

D’Ambrosio v. Fowler: JOINT CUSTODY – TWO-STATE - TERMINATION OF JOINT – RELIGIOUS/EDUCATION REASONS – PRIOR NOTICE OF VISIT – FEE AWARDS – AGAINST UNEMPLOYED PAYOR.

A custody decision that might look like a curious concatenation of bootstrappings to some was upheld by the Court of Appeals.  In D’Ambrosio v. Fowler, unpublished, 22 VLW 1114 (2/19/08), the parties had shared custody, which was apparently a joint-custody arrangement, from the 15th month of the child’s life until the obtaining of “school age” (whatever that means today), even though the mother lived in New York and the father in Virginia.  When the mother said she now wanted primary physical custody, the trial court of course reviewed and gave due regard to all the statutory criteria before holding that the child’s starting a religious school in New York (both the New York and Virginia schools being held equal), along with the relationship with a ten-year old sister, and the mother’s “superior ability to assess the child’s needs” by looking at the child-custody dispute more accurately and reasonably, justified granting her what she wanted. 

CUSTODY -– MODIFICATION LITIGATION -– FRIVOLOUSNESS -– SANCTIONS.

Though it is impossible to tell from the unpublished 5-page opinion what was in the record, much less exactly what was going on in this case, a recent sanctions (fee award) case from the Court of Appeals sounds a strong cautionary note for male custody litigants. The father filed in the juvenile court for custody modification and lost, then appealed to the Fairfax County Circuit Court and lost there. The mother, who now lives in Florida, persuaded the trial judge that the father, who was held to have failed to show changed circumstances, brought the litigation for the improper purpose of harassing the mother, and the Court of Appeals agreed. The case appears on its face to be a fairly garden-variety custody dispute, and exactly what makes this harassment litigation as opposed to merely unsuccessful litigation by a male parent is not made very clear. What the Court of Appeals does say in justification of the §8.01-271.1 “sanctions” holding is that the father makes more money than the mother, and therefore was subjecting her to economic bullying, and the fact that he tried to negotiate a settlement after taking his appeal of right from juvenile court, and therefore was using the appeal as leverage to extort an unjust concession. Unfortunately, the court adds to the growing confusion by further blurring the distinction between sanctions and mere fee awards, because the sanction it upheld in this case was an award to the mother of all her costs and fees, including travel fees. The Court of Appeals also remands for a determination of the fees and costs incurred on appeal, so that she can be awarded those as well, along with any fees or costs she may incur on the remand itself. Ottosen v. Saunders, unpublished, 20 VLW 827 (12/6/05).