COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia
LAURA M. KANE
v. Record No. 3168-02-2
ROBERT W. SZYMCZAK, II OPINION BY
JUDGE D. ARTHUR KELSEY
AUGUST 26, 2003
ROBERT W. SZYMCZAK, II
v. Record No. 3174-02-2
LAURA M. KANE
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Susanne L. Shilling (E. Ryan Meyer;
Shilling & Associates; E. Ryan Meyer,
P.L.L.C., on briefs), for Laura M. Kane.
John N. Clifford (Clifford & Duke, P.C., on
briefs), for Robert W. Szymczak, II.
(Karen Minter Matthews, on brief), Guardian
ad litem for infants Robert Szymczak, III
and Brian Kane Szymczak.
Laura M. Kane appeals a chancellor's order transferring
custody of her two children to their father, Robert W. Szymczak,
Kane's former husband. On appeal, Kane has preserved only one
issue for consideration: whether the chancellor failed to
comply with Code § 20-124.3's requirement that the court
"communicate to the parties the basis for the decision either
orally or in writing." Szymczak cross appeals, claiming that
the trial court erred by not awarding him attorney's fees and by
requiring him to pay the guardian ad litem fee in its entirety.
We find that the chancellor's letter opinion does not
satisfy Code § 20-124.3, and thus, we remand the case to the
trial court to comply with this statutory mandate. We also hold
that the chancellor did not abuse his discretion by refusing to
award Szymczak attorney's fees and by ordering Szymczak to pay
the guardian's fee.
I.
Kane and Szymczak are the divorced parents of two sons. In
October 1999, the Chesterfield Circuit Court granted Kane sole
custody of the boys. In April 2001, Szymczak petitioned for a
change of custody in Chesterfield Juvenile and Domestic Relations
District Court. The JDR court ordered joint legal custody with
physical custody to Szymczak. Kane appealed the JDR decision to
the Chesterfield Circuit Court in November 2001.
On July 26, 2002, the circuit court conducted an ore tenus
hearing and received testimony from Kane, Szymczak, and others.
In addition, the parties submitted thirty-nine de bene esse
depositions, numerous exhibits, and an extensive report from the
guardian ad litem. A month later, the chancellor issued a
written letter opinion. In it, the chancellor chastised both
parents for failing to "shift their priorities from
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self-interest to the interest of their children." The
chancellor also noted that Szymczak "had to be coerced" into
recognizing the "needs of the children." With this prodding,
the chancellor observed, Szymczak had "seen the light" in the
last couple of years. The court then concluded: "The Court has
considered all the dictates of § 20-124.3 of the 1950 Code of
Virginia (as amended). Further, the Court finds that there has
been a material change of circumstances that warrant the Court
considering a change in status."
On the best-interests issue, the chancellor's opinion
stated: "Based on all the factors that the Court must consider,
the Court has determined that sole legal and physical custody
should be granted to the defendant, Mr. Szymczak, with
visitation to Ms. Kane. The Court places particular emphasis on
§ 20-124.3(1), (2), (6) and (7)." The chancellor's letter
opinion, however, did not state the reasons why any of the
statutory factors (including the four of particular importance)
favored the requested change in custody.
II.
A.
In her brief on appeal, Kane lists eight questions
presented. The argument section of the brief, however,
addresses only questions one, two, and seven. Rule 5A:20
requires appellants to brief the "principles of law, the
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argument, and the authorities relating to each question
presented." Questions "unsupported by argument, authority, or
citations to the record do not merit appellate consideration."
Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239
(1992); see also Thomas v. Commonwealth, 38 Va. App. 319, 321
n.1, 563 S.E.2d 406, 407 n.1 (2002); Bennett v. Commonwealth, 35
Va. App. 442, 452, 546 S.E.2d 209, 213 (2001); Moses v.
Commonwealth, 27 Va. App. 293, 297 n.1, 498 S.E.2d 451, 453 n.1
(1998). As a result, Kane has waived appellate review of
questions three, four, five, six, and eight.
Questions one, two, and seven redundantly contend that the
chancellor violated Code § 20-124.3, which requires a trial
court deciding a custody and visitation case to "communicate to
the parties the basis for the decision either orally or in
writing." The chancellor, Kane asserts, inadequately informed
her of the basis for his decision. We agree.
Code § 20-124.3 lists various factors a trial court should
consider when deciding the "best interests" of the child in a
custody and visitation case. 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 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 statutory language
came verbatim from a recommendation by the Virginia Commission
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on Youth in its 1999 Study on Joint Custody and Visitation. See
House Doc. 24, at 20-21 (1999). The study commission made the
recommendation after becoming "acutely aware that some judges
across the state may not be clearly or adequately articulating"
the reasons for child custody decisions. Id. at 20.
To determine what level of specificity this statutory
command requires, we turn to two settled principles of statutory
construction.
First, the "words of a statute should be given 'their
common, ordinary and accepted meaning' absent a contrary intent
by the legislature." Mouberry v. Commonwealth, 39 Va. App. 576,
583, 575 S.E.2d 567, 570 (2003) (quoting Germek v. Germek, 34
Va. App. 1, 8, 537 S.E.2d 596, 600 (2000)). Black's Law
Dictionary defines "basis" as a "fundamental principle; an
underlying condition." Black's Law Dictionary 145 (7th ed.
1999) (definition no. 1). Non-legal dictionaries offer a
similar denotation. A basis includes the "supporting element,"
"foundation," "chief component," or the "essential principle."
The American Heritage Dictionary 161 (2d col. ed. 1985). These
definitions do not imply a high level of specificity. Instead,
they focus on the fundamental or predominating reason or reasons
underlying the decision.
Second, we presume that the legislature "chose, with care,"
the specific words of the statute. Simon v. Forer, 265 Va. 483,
490, 578 S.E.2d 792, 796 (2003) (citation omitted); see also
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Alger v. Commonwealth, 40 Va. App. 89, 92-93, 578 S.E.2d 51, 53
(2003). The act of choosing carefully some words necessarily
implies others are omitted with equal care. Here, the use of
the expression "basis for the decision" stands in contrast to
the better-known phrase "findings of fact and conclusions of
law." This expression has been used in many statutory contexts,
under both state 1 and federal 2 law. The latter phrase, unlike
the former, describes a comprehensive written or transcribed
narrative of all aspects of the decisionmaking process —— not
just the fundamental or predominating ones. See Interstate
1
Virginia requires "findings of fact" and "conclusions of
law" in Code § 8.01-654 (circuit court decisions on petitions
for writ of habeas corpus), § 10.1-1181.4 (final decisions of
the water quality control board), § 10.1-1310 (final decisions
of the air pollution control board), § 15.2-2314 (commissioner's
report on review of a decision of a board of zoning appeals),
§ 18.2-308 (final order by circuit court refusing to reissue
concealed weapon permit), and § 18.2-384 (decisions of a circuit
court regarding the obscenity of a book).
2
See, e.g., Fed. R. Civ. P. 52(a) (requiring the trial
court to "find the facts specially and state separately its
conclusions of law"); see also 2 U.S.C. § 1405 (administrative
and judicial dispute-resolution procedures involving
congressional complaints); 5 U.S.C. § 580 (review of arbitration
awards); 8 U.S.C. § 1421 (judicial review of naturalization
decisions); 18 U.S.C. § 3509 (court's decision to grant a
continuance in a case involving child victims and witnesses); 21
U.S.C. § 346(a) (final agency decisions regarding pesticide
chemical residues under the Food, Drug and Cosmetic Act); 28
U.S.C. § 157 (decisions of bankruptcy judges in non-core
proceedings); 28 U.S.C. § 1407 (district court panel decisions
relating to multidistrict litigation); 28 U.S.C. § 2255
(decisions in certain habeas corpus proceedings); 28 U.S.C.
§ 2645 (civil decisions of the Court of International Trade); 42
U.S.C. § 3612 (decisions of administrative law judge regarding
fair housing).
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Circuit, Inc. v. United States, 304 U.S. 55, 56 (1938) ("A
discussion of portions of the evidence and the court's reasoning
in its opinion do not constitute the special and formal findings
by which it is the duty of the court appropriately and
specifically to determine all the issues which the case
presents.").
Guided by these principles, we hold that the 1999 amendment
to 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."
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).
That said, the statutory command cannot be satisfied by
formulaic and generalized explanations such as "I've considered
all the factors and I rule thus and such" or "the best-interest
test generally favors this or that party." It begs the question
to say that identifying the statutory factors (either altogether
or some subset of them) is the same as communicating the "basis"
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for the decision. The statutory factors merely list topical
issues for consideration. They become reasons for a particular
decision only when one knows why the factors support the
decision. To satisfy Code § 20-124.3, therefore, 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.
In this case, the decision at issue involves changing a
prior custody order. "The test to be met 'has two prongs:
first, has there been a change in circumstances since the most
recent custody award; second, would a change in custody be in
the best interests of the children.'" Hughes v. Hughes, 33
Va. App. 160, 165, 531 S.E.2d 654, 656 (2000), aff'd en banc, 35
Va. App. 376, 545 S.E.2d 556 (2001) (quoting Keel v. Keel, 225
Va. 606, 611, 303 S.E.2d 917, 921 (1983)).
Because the chancellor did not announce his decision from
the bench, we look to his letter opinion. In it, he makes
general remarks about both parties and their mutual antagonism.
The only comment suggesting a change of circumstances involves
the observation that, despite Szymczak's earlier disinterested
attitude, he had "seen the light" in recent years. The
chancellor then concludes: "The Court has considered all the
dictates of § 20-124.3 of the 1950 Code of Virginia (as
amended). Further, the Court finds that there has been a
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material change of circumstances that warrant[s] the Court
considering a change in status." On the best-interests issue,
the chancellor's opinion repeats that he had considered "all the
factors that the Court must consider" and gave "particular
emphasis" to several of them.
Except for the metaphorical language, which we find
insufficiently communicative, the chancellor's letter opinion
does little more than simply state his decision. No "basis" for
the decision —— in terms of a fundamental, predominating reason
or reasons for it —— was communicated to the parties. The mere
mention of the statutory factors, by itself, does not
communicate why the judge ruled as he did. And, for the same
reason the formulaic remark about considering "all the factors"
falls short, so too does the caveat about some of them being
particularly important.
Szymczak argues that parties could infer the judge's
underlying reasons for his decision from the guardian's report
or from counsel's closing arguments or some other contextual
source. But that observation, even if true, proves too much.
If the parties must infer the reasons, it is probably because
the judge did not communicate them directly. An unspoken and
unwritten inference —— no matter how strong —— cannot substitute
for what the statute requires: an express communication to the
parties of the basis for the decision.
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Consequently, we hold that the chancellor's letter opinion
fails to satisfy Code § 20-124.3's requirement that the trial
court "communicate to the parties the basis for the decision
either orally or in writing." We remand this matter to the
trial court with instructions to provide an explanation in
compliance with the statute.
B.
In his cross appeal, Szymczak claims the trial court erred by
not awarding him attorney's fees and by requiring him to pay the
guardian ad litem's entire fee. We disagree.
Whether to award attorney's fees "is a matter submitted to
the sound discretion of the trial court and is reviewable on
appeal only for an abuse of discretion." Northcutt v. Northcutt,
39 Va. App. 192, 199-200, 571 S.E.2d 912, 916 (2002) (quoting
Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987))
(internal quotation marks omitted). The decision to apportion
guardian fees between both parties or to one party alone also
involves a matter within the chancellor's discretion. See, e.g.,
Infant C. v. Boy Scouts of America, 239 Va. 572, 584, 391 S.E.2d
322, 329 (1990) (noting that a chancellor "may" allocate guardian
fees "based upon the final result"); Verrocchio v. Verrocchio, 16
Va. App. 314, 322, 429 S.E.2d 482, 487 (1993) ("Indivisible from
the power of appointment is the associated power equitably to
apportion the fees and expenses of the guardian ad litem as costs
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to the parties."). Because each case presents its own unique set
of equities, principles of appellate review steer clear of
inflexible rules and focus instead on "reasonableness under all
the circumstances." Joynes, 36 Va. App. at 429, 551 S.E.2d at 24.
In our opinion, the chancellor did not abuse his discretion
by denying Szymczak's request for attorney's fees. The record of
this case demonstrates a level of rancor and discord thankfully
rare in our courts. The legal fees alone tend to show this.
Szymczak spent over $90,000 at the trial court level; Kane's fees
exceeded $42,000. The record contains examples of sarcastic and
prolix briefs, speaking objections and coaching during
depositions, protracted procedural contests, and petty discovery
disputes. While Szymczak claims Kane bears all of the blame, we
cannot say the chancellor abused his discretion by finding that
both parties contributed to this regrettable state of affairs and
by ruling that neither party should be awarded attorney's fees.
We also find no abuse of discretion in the chancellor's
decision to assess the cost of the guardian ad litem's fee against
Szymczak. The guardian was appointed by the JDR court to
investigate Szymczak's allegations of changed circumstances and to
provide a recommendation on his request that custody of both boys
be transferred to him. After the guardian provided a favorable
recommendation to Szymczak in the JDR court, the chancellor
reappointed the guardian for the de novo circuit court appeal. In
his letter opinion, the chancellor observed that Kane had "worked
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hard in the early years of child rearing with almost no support
from the father." The chancellor, however, found that Szymczak
changed his ways and demonstrated his fitness to receive full
custody. In making out his case, Szymczak relied on the
guardian's extensive investigation and report. Kane, on the other
hand, disputed the guardian's recommendations and claims on appeal
that the guardian took an adversarial role in the proceedings.
The issue before us is not whether we find that the equities
favor one or the other party, but whether the chancellor abused
his discretion in finding that the equities favored the imposition
of the guardian's fee on Szymczak. While the chancellor could
have divided the guardian's fees between the parties, Verrocchio,
16 Va. App. at 322, 429 S.E.2d at 487, he also had the discretion
not to. Under the circumstances of this case, we find no abuse of
that discretion.
III.
We hold that the chancellor's letter opinion fails to satisfy
Code § 20-124.3's requirement that the trial court "communicate"
to the parties the "basis of the decision." We remand this matter
to the trial court for compliance with this statutory mandate. We
find no abuse of discretion in the chancellor's denial of
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Szymczak's request for attorney's fees or his assessment of the
guardian's fees against Szymczak. 3
Affirmed in part and
remanded.
3
We deny Szymczak's motion to dismiss Kane's appeal for
allegedly violating Rule 5A:25, finding the assertion of prejudice
insufficient to warrant such a remedy, but we nonetheless order
Kane to reimburse Szymczak for the $2,035 advanced during the
process of preparing the appellate appendix. See Rule 5A:25(f).
We also grant Szymczak's motion seeking reimbursement from Kane of
the $105 cost of including Dr. Sellman's transcript in the
appendix. Id. We deny (i) Kane's and Szymczak's respective
requests for attorney's fees on appeal, finding that neither party
has demonstrated that the other's position on appeal is
unreasonable under all the circumstances; (ii) Kane's motion to
dismiss Szymczak's appeal pursuant to Rule 5A:8(b), finding her
allegation of prejudice insufficient to warrant dismissal; (iii)
Szymczak's requests for sanctions and attorney's fees under Code
§ 8.01-271.1, finding that he failed to demonstrate that Kane
asserted an argument not "well grounded" in fact or law or for
some "improper purpose," id.; and (iv) Kane's "Motion to Remand
Support Case To The Circuit Court," on the ground that allegations
of unresolved issues in a final appealable order, under the
circumstances of this case, cannot be addressed by segmenting
those issues for a partial remand.
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Bumgardner, J., dissenting.
I dissent from the holding that the trial court failed to
communicate the basis of its decision. In the context in which
it was written to the attorneys of record, I find it complied
with the minimum demanded by Code § 20-124.3.
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