COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and McClanahan
Argued at Chesapeake, Virginia
JOHN A. LANZALOTTI
OPINION BY
v. Record No. 2808-02-1 JUDGE ELIZABETH A. McCLANAHAN
SEPTEMBER 30, 2003
CATHY LYNN LANZALOTTI
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel Taylor Powell, III, Judge
Willafay H. McKenna for appellant.
No brief or argument for appellee.
John A. Lanzalotti (father) appeals from a decision of the
Circuit Court of the City of Williamsburg and County of James
City granting his former wife, Cathy Lynn Lanzalotti (mother),
physical custody of their child. Father contends the trial
court erred by (1) failing to communicate the basis of its
decision as required by Code § 20-124.3; (2) limiting the length
of the hearing; and (3) failing to quash mother's
attorney-issued witness subpoenas. For the following reasons,
we affirm in part, reverse in part and remand.
I. BACKGROUND
The parties married on June 18, 1994. One child was born
of the marriage on September 14, 1995. On November 10, 1999,
after leaving the home two days earlier, mother filed a bill of
complaint for divorce. On May 5, 2002, after two pendente lite
hearings that included rulings on custody and visitation, and
several other hearings on other issues, the circuit court
entered a final decree of divorce. The order reserved custody
and visitation issues for a separate hearing.
On June 20, 2002, father issued a notice of hearing on
custody and visitation for August 27, 2002. Prior to the
hearing, both parties submitted proffers and home studies for
the court's consideration, and utilized attorney-issued
subpoenas for witnesses to be called at hearing. Father filed
motions to quash two witness subpoenas issued by mother's
attorney on the grounds they were not properly endorsed and did
not include the issuing attorney's bar identification number.
At the beginning of the hearing, the court informed the
parties that the matter was scheduled for two hours, and gave
each party one hour to present its evidence. Neither party
objected to the time limitation. Father's attorney raised the
motions to quash. Mother's attorney stated that the subpoenas
were issued by a private process server under her authority, but
admitted they were not personally signed by her, but by the
private process server. Counsel for mother also admitted that
the subpoenas did not include her bar number, but maintained
that father's counsel knew her and that father was not
prejudiced by the omission. The court overruled the motions.
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Both parties and witnesses for each party testified at the
hearing, which was punctuated by the chancellor's reminders of
time used or remaining for each side. At the conclusion of the
evidence, the chancellor stated:
The Court will find that both parties are
competent and capable of raising their son.
The Court will consider the statutory
factors set forth in 20-104.3 [sic]. I have
some other matters in the file that I want
to review. This is a substantial file. I'm
going to defer ruling for 24 hours so that I
can review the entire file.
On September 3, 2002, the court issued a letter to the parties
that read:
The Court heard the evidence ore tenus,
reviewed the proffers by each party and the
home studies, and all other relevant
evidence in this matter and in consideration
of the factors as set forth in § 20-124.3,
find that the best interests of the child
will be served by awarding custody of the
child to the mother with reasonable
visitation reserved to the father.
The court entered an order on October 15, 2002, which included
the following language:
Evidence was heard ore tenus and was argued
by counsel, upon consideration of which, and
seeming proper to do, it is
ADJUDGED, ORDERED and DECREED as
follows:
1. Primary physical custody of the
minor child born of the marriage . . . is
granted to the Plaintiff, Cathy Lynn
Lanzalotti, with reasonable visitation
rights reserved to the Defendant. . . .
Father noted objections to the order, inter alia, that the court
failed to communicate the basis of the decision as required by
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Code § 20-124.3 and that the court erred in overruling father's
motions to quash the attorney-issued subpoenas.
II. ANALYSIS
On appeal, we view the evidence in the light most favorable
to the prevailing party. Brown v. Burch, 30 Va. App. 670, 681,
519 S.E.2d 403, 408-09 (1999). A trial court's decision, when
based upon an ore tenus hearing, is entitled to great weight and
will not be disturbed unless plainly wrong or without evidence
to support it. Venable v. Venable, 2 Va. App. 178, 186, 342
S.E.2d 646, 651 (1986). "A trial court's determination of
matters within its own discretion is reversible on appeal only
for abuse of that discretion . . . and a trial court's decision
will not be set aside unless plainly wrong or without evidence
to support it." Goldhammer v. Cohen, 31 Va. App. 728, 734-35,
525 S.E.2d 599, 602 (2000). A trial court, "'by definition
abuses its discretion when it makes an error of law.'" Shooltz
v. Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998)
(quoting Koon v. United States, 518 U.S. 81, 100 (1996)).
Code §§ 20-107.2 and 20-124.3 allow a court to make a
decree concerning the custody of minor children. In determining
what custodial arrangement serves the best interests of a child,
the court must consider the factors enumerated in Code
§ 20-124.3. In its original form, 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. In
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1999, however, the General Assembly amended Code § 20-124.3 to
direct the trial court to state the "basis for the decision
either orally or in writing." This Court has recently held that
Code § 20-124.3 requires the trial court to
identify the fundamental, predominating
reason or reasons underlying its decision.
This level of specificity does not require
the chancellor to address all aspects of the
decisionmaking process, as one would expect
from comprehensive findings of fact and
conclusions of law. Nor does the 1999
amendment require the chancellor "to
quantify or elaborate exactly what weight or
consideration it has given to each of the
statutory factors."
Kane v. Szymczak, ___ Va. App. ___, ___, ___ S.E.2d ___, ____
(August 26, 2003) (quoting Sullivan v. Knick, 38 Va. App. 773,
783, 568 S.E.2d 430, 435 (2002) (citation omitted)); see also
Goodhand v. Kildoo, 37 Va. App. 591, 600, 560 S.E.2d 463, 467
(2002); Joynes v. Payne, 36 Va. App. 401, 416, 551 S.E.2d 10, 17
(2001). 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. "The trial court must provide a case-specific
explanation (one that finds its contextual meaning from the
evidence before the court) of the fundamental, predominating
reason or reasons for the decision." Kane, ___ Va. App. at
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____,___ S.E.2d at ____. The statute requires "an express
communication to the parties of the basis for the decision."
Id.
At hearing, the trial court stated it needed to review the
entire file before it could issue a ruling. In his letter to
the parties, the chancellor stated that he "heard the evidence
ore tenus, reviewed the proffers by each party and the home
studies, and all other relevant evidence in this matter and in
consideration of the factors as set forth in § 20-124.3 find
that the best interests of the child are served by awarding
custody to the mother." The order provided no reasoning. The
trial judge did not sufficiently communicate to the parties the
basis of his decision to place custody of the child with mother.
Therefore, we reverse and remand this matter to the trial court
with instructions to provide an explanation in compliance with
the statute.
Regarding the objection to time limits imposed at hearing,
we find that father did not properly preserve the issue for
appeal, as no timely objection was made. Rule 5A:18 states:
"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."
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At the beginning of the hearing, the chancellor announced
that the matter was scheduled for two hours, gave each side an
hour to present their evidence, and stated, "This is what you
asked for." The chancellor's statement indicates to this Court
that the parties were in agreement that two hours were
sufficient for the hearing. Neither party raised an objection
at the time the chancellor announced the time restriction, and
neither party noted their objection on the court's order. There
were no proffers in the record as to what additional evidence
would have been presented, or how the restriction harmed
counsel's ability to present the case such that there was a due
process violation. Further, we find that neither "good cause"
nor "the ends of justice" require us to consider the issue.
On the issue of whether the chancellor erred in not
quashing mother's attorney-issued witness subpoenas, we find
without deciding whether there was error, that the decision to
allow the witness testimony was harmless. The witnesses at
issue were already in attendance at the hearing, and even if the
motion to quash had been granted, they could have testified. A
review of the transcript reveals that the parties were neither
hurt nor harmed by the testimony of the witnesses at issue.
Therefore, it plainly appears that even if the chancellor erred,
it was harmless. Code § 8.01-678; Sargent v. Commonwealth, 5
Va. App. 143, 360 S.E.2d 895 (1987).
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Accordingly, we hold that the chancellor's letter opinion
and order fail to satisfy Code § 20-124.3's requirement that the
trial court communicate to the parties the basis of the
decision. We reverse and remand this matter to the trial court
for compliance with this statutory mandate. We find that the
question on time limits was not properly preserved and that the
issue regarding attorney-issued subpoenas had no effect on the
outcome of this case. Therefore we affirm in part, reverse in
part and remand.
Affirmed in part,
reversed in part
and remanded.
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