Parish v. Spaulding

Present: All the Justices

KEITH D. PARISH

v. Record No. 980913 OPINION BY JUSTICE BARBARA MILANO KEENAN
February 26, 1999
MARY BETH SPAULDING

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal of an order adjudicating issues of child

custody, visitation, and support, the primary question is

whether the trial court employed proper procedures in

determining the merits of a custodial parent's move from

Virginia to Indiana, which was made in violation of a court

order.

The Circuit Court of Prince William County entered an order

in December 1995 (the 1995 custody order), awarding sole custody

of Keith Douglas Parish, Jr. and Samantha N. Parish (the

children) to their mother, Mary Beth Spaulding. The children's

father, Keith D. Parish, Sr., was awarded visitation rights on

alternate weekends, a portion of holidays and school vacations,

and four weeks during the summer. At the time the 1995 custody

order was entered, both the mother and the father resided in

Virginia. The order required that a party intending to change

residence give 30 days' written notice of the intended change to

the court and to the other party.
 The father appealed the 1995 custody order to the Court of

Appeals. In July 1996, while that appeal was pending, the

mother appeared before the circuit court to request a change in

visitation and permission to move the children to Indiana. The

circuit court ruled that it did not have jurisdiction to hear

the matter due to the appeal pending in the Court of Appeals.

On the same day, the mother filed another document with the

circuit court, giving notice of her intent to move in 30 days

and providing two "probable" addresses and a telephone number in

Indiana.

The Court of Appeals later denied the mother's request to

allow the trial court to adjudicate the issues involving her

move while the appeal was pending. The mother made additional

unsuccessful attempts, in July and August 1996, to obtain a

modification of the father's visitation rights and permission to

move the children to Indiana. Both the circuit court and the

Prince William County Juvenile and Domestic Relations District

Court (juvenile court) ruled that they lacked jurisdiction to

hear the mother's petitions because no emergency existed and the

Court of Appeals had denied the mother's request. On July 26,

1996, in response to the father's request for an injunction, the

juvenile court entered an order enjoining the mother "from

removing the residence of the minor children of the parties from

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the boundaries of the Commonwealth of Virginia, until further

order of the Court." The mother did not appeal from this order.

Despite the order, the mother moved the children to Indiana

in August 1996. The Court of Appeals ultimately affirmed the

1995 custody order in an unpublished opinion. Parish v.

Spaulding, Record No. 0137-96-4 (November 19, 1996).

In January 1997, the circuit court held a two-day ore tenus

hearing in response to the father's motions to modify custody

and visitation. Before the hearing, the circuit court denied

the father's motion to withdraw his appeal of a juvenile court

order concerning child support and, on its own motion,

consolidated that appeal with the pending motions concerning

custody and visitation.

At the hearing, the mother testified that her move to

Indiana was necessitated by financial difficulties that occurred

when her present husband lost his job in Virginia and she was

due to give birth to her fourth child. The mother stated that

her husband's family lived in Indiana and offered them

assistance and rent-free housing. After the move to Indiana,

her husband obtained employment as a warehouse manager for a

furniture store where he was still employed at the time of the

hearing. The children began attending school in Indiana at the

start of the 1996-97 school year.

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 The father testified that he lives in Prince William County

with his parents and is employed as a bartender and waiter at a

local steakhouse. His sister's family also lives nearby in

Prince William County. The father asked the circuit court to

grant him custody of the children.

The court found that there had been significant changes in

circumstances since the 1995 order concerning custody and

visitation. After evaluating each of the factors listed in Code

§ 20-124.3, the court determined that the mother should retain

sole custody of the children. The court also ruled that the

mother's move to Indiana was in the best interests of the

children. The court stated:

First of all, the move to Indiana offered economic
stability in the sense that [the mother] found herself
in economic distress. It offered an opportunity to
live in Indiana in a home that was rent-free, not
unlike the same situation [the father] lives in here
in Virginia. Number 2, it offers economic stability,
in that the [mother] was in fact unemployed and the
[mother's] new husband lost his job in Virginia and
needed to move to find full employment and so moved to
Indiana. It offered some economic stability based on
the fact that the [father] in this case was not paying
child support as ordered by the Court. Number four,
in terms of an educational opportunity, it offered the
[mother] an opportunity, together with her new
husband, for additional schooling. Number 5, in terms
of educational opportunities for the children, the
transfer of the children was made in the summertime so
as not to interfere with the schooling of the children
and did not, in fact, interfere with that schooling.
Number 6, it offered some emotional stability to the
children. [The new husband] was allowed to return and
address the issues of visitation and child support

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 that he had outstanding in Indiana. And that offered
some stability to their family environment.

The court then modified the father's visitation with the

children based on the distance between the children's new home

in Indiana and the father's home in Virginia. The court also

ordered an increase in child support based on the father's

income and the needs of the children.

The father appealed the trial court's order to the Court of

Appeals, which affirmed the trial court's judgment. Parish v.

Spaulding, 26 Va. App. 566, 496 S.E.2d 91 (1998). This appeal

followed.

The father argues on appeal that the Court of Appeals erred

in affirming the trial court's judgment, because the trial court

failed to conduct a hearing as required by this Court's holding

in Carpenter v. Carpenter, 220 Va. 299, 257 S.E.2d 845 (1979).

He contends that, as a result, he suffered a denial of due

process. 1 We disagree with the father's argument.

We first observe that this assignment of error contests

only the procedure employed by the trial court, rather than the

substance of the court's determination. 2 In the trial court, the

father agreed that the court lacked jurisdiction to hold a

1
The mother has not entered an appearance in this appeal.
2
Since the father has not presented an assignment of error
regarding the merits of the trial court's custody determination,

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hearing prior to the mother's move because the custody order was

under review by the Court of Appeals. See Greene v. Greene, 223

Va. 210, 212, 288 S.E.2d 447, 448 (1982). Since the father

agreed with the trial court's ruling on this issue, we will

address only his argument that the trial court denied him due

process in its conduct of the proceedings after the move had

occurred.

In Gray v. Gray, 228 Va. 696, 698, 324 S.E.2d 677, 678

(1985), we stated that our decision in Carpenter "holds that

before a court permits a custodial parent to remove children

from the Commonwealth, it must determine that removal is in the

children's best interests." Under the facts presented here, the

trial court determined the merits of the move after it had

occurred. The welfare of the children was the controlling

consideration before the court in deciding this issue. All

other matters, including the mother's conduct in moving from

Virginia without court approval, were subordinate to this

consideration. See Bottoms v. Bottoms, 249 Va. 410, 413, 457

S.E.2d 102, 104 (1995); James v. James, 230 Va. 51, 53, 334

S.E.2d 551, 553 (1985); Gray, 228 Va. at 698, 324 S.E.2d at 678;

Keel v. Keel, 225 Va. 606, 610, 303 S.E.2d 917, 920 (1983);

Bostick v. Bostick-Bennett, 23 Va. App. 527, 533, 478 S.E.2d

we do not consider the arguments in his brief addressing this
subject. See Rule 5:17(c).

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319, 322 (1996); Hughes v. Gentry, 18 Va. App. 318, 322, 443

S.E.2d 448, 451 (1994).

The father's right of due process entitled him to notice

and an opportunity to be heard on this issue. See McManama v.

Plunk, 250 Va. 27, 34, 458 S.E.2d 759, 763 (1995); Brown v.

Brown, 240 Va. 376, 380, 397 S.E.2d 837, 839 (1990). The record

shows that the father requested the January 1997 hearing to

obtain a change of custody or, in the alternative, a

modification of his visitation rights. During that hearing, the

court also heard evidence concerning the mother's decision to

move the children from Virginia.

The father did not assert that he was unprepared to proceed

on this issue or ask the court to consider the merits of the

move at a later date. The record also shows that the court

based its decision approving the move on the facts existing at

the time of the move, rather than on evidence relating to the

parties' changed circumstances after the move. Therefore, we

conclude that the trial court conducted the proceedings required

by Carpenter and provided the father due process in determining

whether the move to Indiana was in the children's best

interests.

The father next argues that the trial court erred in

failing "to enforce" the juvenile court injunction prohibiting

the mother from removing the children from Virginia without

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court approval. He asserts that "enforcement" of the order

requires that "the children's residence be re-established in the

Commonwealth of Virginia until the terms of the injunction are

met." We disagree with this argument.

The trial court did not err in failing "to enforce" the

juvenile court order in the manner requested. The children

already had been moved outside the Commonwealth. To require the

children to return to Virginia irrespective of their best

interests would have violated the requirement that courts act

only in furtherance of those interests. See Bottoms, 249 Va. at

413, 457 S.E.2d at 104; Keel, 225 Va. at 610, 303 S.E.2d at 920.

All litigants, however, are required to comply with court orders

and their failure to do so subjects them to the sanction powers

of the court. Here, the father was entitled to seek the

imposition of sanctions against the mother for her violation of

the injunction, but he did not request that the mother be

sanctioned for this particular act. Thus, we do not consider

the issue further in this appeal.

Finally, Parish argues that the trial court improperly

prohibited him from withdrawing his appeal of the juvenile

court's order concerning child support. He contends that he was

prejudiced by the court's action because he "was denied the

opportunity to focus the Court's attention on the only issue

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important to him — contact with his children." We find no merit

in this contention.

In denying the father's motion to withdraw his appeal, the

trial court noted that the parties had brought nine cases to the

circuit court over the prior three years. The court later

stated that these circumstances had fragmented the issues

between the parties and that it was "time for these matters to

really come to a head." The record does not show that the

father was prejudiced by this ruling. In denying the father's

motion, the court was able to consolidate the cases pending

before the court and to rule on the related issues of custody,

visitation, child support, and the merits of the mother's move.

Moreover, the father asserts no error regarding the amount of

support awarded in this hearing.

We have considered the father's remaining arguments and

conclude that they have no merit. Therefore, we will affirm the

judgment of the Court of Appeals.

Affirmed.

JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO joins,
dissenting.

In this case, one parent deliberately has violated a valid

Virginia juvenile court order by removing the residence of the

parties' minor children from the Commonwealth without prior

court permission, thereby manufacturing a "change of condition,"

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and thus encroaching on the due process rights of the other

parent on issues of child custody, visitation, and support.

The majority endorses such practice, without even a hint of

disapproval (except to blame the father for failing to seek

"sanctions"), relying solely on "the best interests of the

children." I cannot join such a decision.

As I interpret the record, the circuit court did not base

its decision approving the move solely on the facts existing at

the time of the move. Rather, the court considered facts

relating to the changed circumstances existing after the move.

Indeed, the circuit court's lengthy recitation of reasons to

support its decision in favor of the mother, quoted in the

majority opinion, speaks mainly about Indiana conditions that

existed after the move. This points up the unfairness to the

father in which the circuit court, the Court of Appeals, and now

a majority of this Court, in a classic exercise of

bootstrapping, all have infringed on the father's due process

rights.

Therefore, I would reverse the judgment of the Court of

Appeals with direction that the case be remanded to the circuit

court for further proceedings, including requiring the mother to

show cause why she should not be held in contempt of court for

violation of the order prohibiting removal of the children's

residence from the Commonwealth without court permission.

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