COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Humphreys and Millette
Argued at Chesapeake, Virginia
THEOPHYLIS ARTIS
OPINION BY
v. Record No. 1529-07-1 JUDGE ROBERT J. HUMPHREYS
JULY 22, 2008
KRYSTAL R. JONES
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Randall D. Smith, Judge
Richard E. Garriott, Jr. (Kira A. Ligato; Clarke, Dolph, Rapaport,
Hull, Brunick, and Garriott, P.L.C., on brief), for appellant.
Allyson Denise Lee for appellee.
Theophylis Artis (“father”) appeals an order awarding primary physical custody of his
son, J.H., to J.H.’s mother, Krystal Jones (“mother”). Father argues that (1) the trial court did
not adequately communicate the basis of its decision either orally or in writing, as required by
Code § 20-124.3, and (2) the evidence was insufficient to support the finding that awarding
primary physical custody to mother was in J.H.’s best interests. For the following reasons, we
agree with father that the trial court did not sufficiently communicate the basis of its decision to
the parties. We reverse and remand for further proceedings consistent with this opinion.
BACKGROUND
On appeal, we must view the evidence, and all reasonable inferences flowing from the
evidence, in a light most favorable to mother as the party prevailing below. Congdon v.
Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). “That principle requires us to
‘discard the evidence’ of [father] which conflicts, either directly or inferentially, with the
evidence presented by [mother] at trial.” Id. (quoting Wactor v. Commonwealth, 38 Va. App.
375, 380, 564 S.E.2d 160, 162 (2002)). So viewed, the evidence proved the following.
Mother and father began dating in 1998. J.H. was born in 2002. Mother and father never
married, and father ended the relationship after learning that mother was pregnant. Mother also
has a son and a daughter from previous relationships. Her son was a fifteen-year-old high school
student at the time of trial, and her daughter was a twenty-year-old student at Old Dominion
University. Both children love their younger half-brother J.H., and they all have a close
relationship with their mother. In the fall of 2002, mother began dating another man who was
married at the time, but was already separated from his wife with a divorce pending.
The parties’ relationship began to deteriorate when J.H. was around one year old, and the
relationship has remained hostile ever since. For example, father has made numerous allegations
of child abuse against mother to Child Protective Services (“CPS”), none of which CPS has acted
upon. Father has also been both physically and verbally abusive toward mother in the past. One
particular flashpoint for hostilities between the parties has been when the parties meet to
exchange J.H. In March 2005, mother and father were exchanging J.H. at a convenience store,
and a friend of father’s was also present with his child. After receiving J.H., mother asked father
to move his car so that she could leave. Father then placed J.H. in the back of his friend’s car so
that he might move his car. Mother then apparently phoned the police and reported that father
was kidnapping J.H. Father called mother a “bitch” and a “whore” in front of J.H. and mother’s
other children, who were also present.
On October 20, 2004, the Chesapeake Juvenile and Domestic Relations District Court
(“J&DR”) entered an order establishing joint legal custody and shared physical custody of J.H.
Prior to the entry of this order, there had been no formal custody arrangement, but J.H. had spent
the majority of his time with mother. This order also directed the parties to seek parental
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counseling to attempt to resolve the difficulties between them. Mother was uncooperative in
seeking counseling, and was held in contempt of court once for not cooperating with this order.
In May 2005, the parties began seeing Richard Tavolucci (“Tavolucci”), a parental
counselor. Tavolucci stated that both mother and father were good parents and that the two
should share joint physical custody equally, thereby minimizing the number of times the parties
would exchange J.H. and ensuring that the two would have less opportunity for hostilities to
ensue. J.H. reported to Tavolucci that he was “terrified” of returning to mother’s house from
father’s because mother always spanked him, and had also punched him in the back on at least
one occasion. When Tavolucci asked J.H. if father had hit him, J.H. replied that he had not, but
that mother had told him to say that he had.
In October 2005, mother also began taking J.H. to see Margaret McDowell
(“McDowell”), a licensed clinical social worker and “play therapist,” who provided J.H. with
dolls and other playthings to act out various scenarios from his life. McDowell opined that one
parent should have primary custody because it was detrimental to J.H.’s well-being to be equally
exposed to two different parenting styles. Despite only meeting with father for one counseling
session, McDowell suggested that, based on her assessments, mother was the more “nurturing”
and “protective” parent and that J.H. had a greater emotional attachment to mother than to father.
However, McDowell did not specifically recommend that mother have primary physical custody.
On March 22, 2006, in response to father’s petition to modify custody, the J&DR
awarded joint legal and physical custody to mother and father, with each parent having two
weeks of continuous physical custody. Mother appealed to the Circuit Court of the City of
Chesapeake (“trial court”).
At trial de novo over three days in September and October 2006, the parties presented the
evidence referenced above, and Tavolucci and McDowell both presented their above-referenced
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opinions. Mother and mother’s older children all testified that since the beginning of the
two-week continuous custody arrangement, J.H. had started to cry whenever he was preparing to
go back to father’s house. Various witnesses, including J.H’s teachers, testified that J.H.’s
behavior became more aggressive, including hitting other students and using profanity, after the
imposition of the custody arrangement.
The trial court apparently found neither parent’s accusations against the other parent to be
credible, stating that “if one of these parties had been bitten by a snake and the other party is
coming towards them to cut the poison out, the parties would describe it as they tried to attack
me with a knife and kill me.” The court also found McDowell’s opinion regarding J.H. more
credible than Tavolucci’s.
The trial court did not make a ruling orally, but, after finding that a change of
circumstances had occurred for J.H. since the custody order from October 2004, stated:
Now we go to the factors contained in [Code §] 20-124.3, which
delineates all the factors to determine what would be in the best
interest of the child.
* * * * * * *
You know, . . . there’s both good and bad that both mom and dad
bring to the situation. So I think I’m going to make - I’ve made a
lot of notes . . . . I’ll go back and review those notes and get a
decision out.
* * * * * * *
It seems to the Court . . . one of [the parties] will be the primary
custodian and the other one will have a relationship as best [as
possible] under the circumstances.
On February 5, 2007, the trial court issued its ruling in a letter opinion, stating, in
pertinent part:
The Court finds that the age of [J.H.] (2 at the time of the initial
order and close to the age to begin school now), the difficult
relationship of the mother and father--marked by constant distrust
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of each other, complete lack of cooperation between the two
regarding any consistency in [J.H.]’s development or schedule, and
in the opinion of the Court no probability exists that mother and
father will be able to communicate or cooperate in [J.H.]’s rearing,
establishes a change in circumstance. The Court also finds that
because [J.H.] is displaying difficulties due to the inconsistent
parenting practices of mother and father combined with their
contempt of each other, that [J.H.]’s best interest would be met by
a change in the order of October 20, 2004.
The Court then pursuant to Virginia Code Section 20-124.2[,]
giving primary consideration to the child’s best interest considered
all factors contained in Code Section 20-124.3.
The trial court then awarded primary physical custody to mother and granted reasonable
visitation rights to father. Father timely appealed to this Court.
ANALYSIS
I. Compliance with Code § 20-124.3
Father first argues that the trial court did not adequately communicate the basis of its
custody award to the parties as required by Code § 20-124.3. We agree.
Code § 20-124.3 lists ten factors a trial court must consider when deciding the best
interests of a child for determining custody and visitation of a child. The statute concludes by
directing that the trial court “communicate to the parties the basis of [its] decision either orally or
in writing.” We have interpreted this statute as “requir[ing] the trial court to identify the
fundamental, predominating reason or reasons underlying its decision.” Kane v. Szymczak, 41
Va. App. 365, 372-73, 585 S.E.2d 349, 353 (2003). “While communicating the ‘basis’ of the
decision does not rise to the level of providing comprehensive findings of fact and conclusions of
law, it does mean that the trial court must provide more to the parties than boilerplate language
or a perfunctory statement that the statutory factors have been considered.” Lanzalotti v.
Lanzalotti, 41 Va. App. 550, 555, 586 S.E.2d 881, 883 (2003). ‘“The trial court must provide a
case-specific explanation (one that finds its contextual meaning from the evidence before the
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court) of the fundamental, predominating reason or reasons for the decision.’” Id. (quoting
Kane, 41 Va. App. at 373, 585 S.E.2d at 353). “The statute requires ‘an express communication
to the parties of the basis for its decision.’” Id. (quoting Kane, 41 Va. App. at 373, 585 S.E.2d at
353) (emphasis in original). A trial court that ‘“fails to provide at least some of the steps in [its]
thought process leaves [it]self open to the contention that [it] did not in fact consider the required
factors.’” Woolley v. Woolley, 3 Va. App. 337, 344, 349 S.E.2d 422, 426 (1986) (quoting
Campolattaro v. Campolattaro, 502 A.2d 1068, 1075 (Md. Ct. Spec. App. 1986)).
At the conclusion of trial, the trial court stated orally that it found McDowell, who
recommended a primary caretaker and stated that mother was more “nurturing” than father, more
credible than Tavolucci. However, this is a credibility determination by the trial court, and not a
communication to the parties as to why it ruled as it did. At no point did the trial court state why
placement with mother would be in J.H.’s best interests, nor did it state why the factors
contained in Code § 20-124.3 influenced its decision. In fact, the record clearly shows that the
trial court had not yet reached a decision at this point.
In its subsequent letter opinion, the trial court found that a change of circumstances had
occurred, due to the “difficult relationship of the mother and the father--marked by constant
distrust of each other, complete lack of cooperation between the two regarding any consistency
in [J.H.]’s development or schedule, and . . . no probability exists that mother and father will be
able to communicate or cooperate in [J.H.]’s rearing[.]” The trial court then stated: “because
[J.H.] is displaying difficulties due to the inconsistent parenting practices of mother and father
combined with their contempt of each other, that [J.H.]’s best interest would be met by a change
in the order of October 20, 2004.” 1
1
At oral argument, counsel for the appellee asserted that subsequent to the issuance of
the letter opinion, a hearing was held during which the circuit court supplemented the rationale
for its decision. However, no transcript, written statement of facts, or supplemental order with
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Thus, the trial court found that a change of circumstances had occurred, but did not
explain how the factors contained in Code § 20-124.3 applied to determine how the best
interests of the child would be served by the specific change that it ordered. Although this is
more than a mere “perfunctory statement that the statutory factors have been considered[,]”
Lanzalotti, 41 Va. App. at 555, 586 S.E.2d at 883, this statement fails to communicate a
case-specific explanation as to why the best interests of J.H. favor placement with mother,
rather than father. As such, we hold that the trial court did not sufficiently “communicate to the
parties the basis of [its] decision either orally or in writing,” as mandated by Code § 20-124.3.
II. Sufficiency of the Evidence
Father next argues that the evidence was insufficient to support the trial court’s finding
that awarding primary physical custody of J.H. to mother was in J.H.’s best interests. Having
held that the trial court did not adequately communicate the basis of its decision to the parties as
required by Code § 20-124.3, we do not address the sufficiency of the evidence on appeal.
In Robinson v. Robinson, 50 Va. App. 189, 648 S.E.2d 314 (2007), we addressed Code
§ 20-107.1(F)’s requirement that a trial court provide written findings and conclusions of law
identifying the factors in Code § 20-107.1(E) which support the trial court’s decision on a
spousal support award. In doing so, we discussed our previous holding in Woolley.
Woolley held that “when a trial court failed to make factual findings or present any explanation
of the circumstances that influenced its decision regarding spousal support, we could examine
the record to determine if the trial court’s decision was supported by evidence relevant to the
statutory factors.” Robinson, 50 Va. App. at 195, 648 S.E.2d at 317 (citing Woolley, 3
Va. App. at 345, 349 S.E.2d at 427). However, as noted in Robinson, the General Assembly
respect to such hearing has been made a part of the record before us. It is the duty of the parties
to provide us with a record sufficiently complete to support their legal arguments. Haugen v.
Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 42-43, 645 S.E.2d 261, 270 (2007).
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amended the statute in 1998 to require the trial court to make the written findings mentioned
above. Because the statute as amended did not contain a provision permitting such review by
us, and specifically required the trial court to make written findings stating the basis for its
decision, we concluded that the statutory amendment superseded our earlier precedent allowing
us to “examine the record to determine if the decision was supported by evidence relevant to the
[statutory] factors.” Id. (citing Woolley, 3 Va. App. at 345, 349 S.E.2d at 427). Accordingly,
we remanded the case to the trial court for reconsideration of the spousal support award based
on the existing record. Id. at 196, 648 S.E.2d at 317.
The same rationale applies here in the context of Code § 20-124.3. In 1999, the General
Assembly amended Code § 20-124.3 to require the trial court to “state the basis for the decision
either orally or in writing.” Kane, 41 Va. App. at 371, 585 S.E.2d at 352. Prior to this
amendment, “the statute did not expressly require the trial court to elaborate on its findings or,
for that matter, to provide any explanation for its decision.” Id. This amendment, like that of
Code § 20-107.1(F), contains no provision permitting an appellate court to review the record for
evidence supporting the trial court’s decision if the trial court does not communicate the basis of
its decision as required by the statute. Accordingly, we refrain from reviewing the record
ourselves. Instead, we remand the case to the trial court for a reconsideration of its custody
award based on the existing record. See Robinson, 50 Va. App. at 196, 648 S.E.2d at 317.
Because the record before us does not indicate that the trial court adequately
communicated the basis of its decision to the parties, we remand to the trial court for
reconsideration of its custody award based consistent with this opinion.
Reversed and remanded.
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