COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judge Duff and
Retired Judge Kulp ∗
Argued at Alexandria, Virginia
DONALD K. STOCKDALE, JR.
OPINION BY
v. Record No. 2428-99-4 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 8, 2000
PATRICIA M. STOCKDALE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge
Michael A. Ward (James R. Cottrell; Gannon,
Cottrell & Ward, P.C., on briefs), for
appellant.
Ilona Ely (Freedman) Grenadier (Dawn
Titus-Rogan; Grenadier, Simpson & Duffett,
P.C., on brief), for appellee.
Donald Stockdale ("father") appeals from the decision of
the Circuit Court of Fairfax County allowing his former wife,
Patricia M. Stockdale ("mother"), to relocate to New Jersey with
the parties' minor children. Father contends the trial court
erred by placing on father the burden of proving substantial
impairment to his relationship with the children if mother moved
them to New Jersey. For the reasons which follow, we affirm the
decision of the trial court.
∗
Retired Judge James E. Kulp took part in the consideration
of this case by designation, pursuant to Code § 17.1-400(C),
recodifying Code § 17-116.01.
FACTS
"We review the evidence in the light most favorable to
[mother], the party prevailing below and grant all reasonable
inferences fairly deducible therefrom." Anderson v. Anderson,
29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999). The parties
were married on July 1, 1989, in New Vernon, New Jersey, and
later moved to Virginia. Four children were born of the
marriage between 1990 and 1995. The parties separated on March
20, 1998, and, thereafter, mother filed a bill of complaint
seeking a fault-based divorce from father. In her bill of
complaint, mother sought custody of the children, child and
spousal support, equitable distribution of marital property, and
other relief. The trial court entered a pendente lite order
awarding mother, inter alia, custody of the children and child
and spousal support. Father filed no answer or cross-bill.
On November 3, 1998, still pending a final decree in the
matter, mother petitioned the court to permit her to move with
the children to New Jersey. Father filed no response to
mother's petition. On June 21 and 22, 1999, a hearing on
custody of the children was held. At this time, father filed a
brief opposing mother's petition for relocation. Although the
purpose of the hearing was to decide which party was to have
custody of the children, the proceedings focused primarily on
the issue of relocation, because the parties stipulated at the
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beginning of the hearing that mother's physical custody would
not be challenged.
At the conclusion of the hearing, the court granted
mother's petition for relocation and granted her sole legal and
physical custody of the children. In reaching its decision, the
court was guided by the factors set forth in Code § 20-124.3 1 for
1
Code § 20-124.3 enumerates the following factors to be
weighed in assessing the best interests of children in custody
and visitation disputes:
1. The age and physical and mental
condition of the child, giving due
consideration to the child’s changing
developmental needs;
2. The age and physical and mental
condition of each parent;
3. The relationship existing between each
parent and each child, giving due
consideration to the positive
involvement with the child's life, the
ability to accurately assess and meet
the emotional, intellectual and physical
needs of the child;
4. The needs of the child, giving due
consideration to other important
relationships of the child, including
but not limited to siblings, peers and
extended family members;
5. The role which each parent has played
and will play in the future, in the
upbringing and care of the child;
6. The propensity of each parent to
actively support the child's contact and
relationship with the other parent, the
relative willingness and demonstrated
ability of each parent to maintain a
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assessing the best interests of the children. The court found
that the children's best interests dictated that mother be
permitted to remove them to New Jersey.
On July 2, 1999, father filed a petition for
reconsideration. Father contended that, in the prior hearing,
the court had erroneously placed on him the burden of proving
that the children's relocation would not be in their best
interest. The court heard oral argument on July 23, 1999, and
took the matter under advisement. No new evidence was
introduced at the oral argument. On August 20, 1999, the court
denied father's motion to modify the court's order allowing
mother to relocate with the children. In its oral opinion, the
court stated that since the July 23, 1999 hearing it had "used
the time" to "get the legal framework straight" and that it was
close and continuing relationship with
the child, and the ability of each
parent to cooperate in and resolve
disputes regarding matters affecting the
child;
7. The reasonable preference of the child,
if the court deems the child to be of
reasonable intelligence, understanding,
age and experience to express such a
preference;
8. Any history of family abuse as that term
is defined in § 16.1-228; and
9. Such other factors as the court deems
necessary and proper to the
determination.
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"now satisfied . . . that the burden of proof [on the issue of
relocation] is on the moving party. It's on the [mother] to
prove that the move to New Jersey would be in the best interests
of the children." The court further found that, "[h]aving
determined that the burden is on the [mother] as the moving
party to prove what's in the best interests of the children
. . . the [mother] has carried that burden by a preponderance of
the evidence, which is the standard." The court further stated
that it "was particularly influenced [in allowing mother to
relocate with the children] by the factors in [Code §] 20-124.3"
and that among these, the relationship between the children and
each parent, the needs of the children, and the role each parent
has played in the children's lives were particularly important
in deciding the case. Accordingly, the court again authorized
mother to take the children to New Jersey.
The court also found that
the husband has not proven by a
preponderance of the evidence that the
benefits of a beneficial relationship
between himself and the children would be
substantially impaired if the children were
moved to New Jersey. . . . I can't say,
given the testimony I have on this record,
that the relationship would be substantially
impaired. . . . [A]ccording to what I see in
the case law, that's the standard . . . .
That is his burden on that particular issue,
and I find that he has not proven by a
preponderance of the evidence that there
would be substantial impairment.
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It is this statement which forms the basis of father's claim of
error.
An order embodying the trial court's ruling was entered on
September 16, 1999. A final decree of divorce was entered on
November 19, 1999, incorporating the September 16, 1999 order.
This appeal followed.
ANALYSIS
"A court may forbid a custodial parent from removing a
child from the state without the court's permission, or it may
permit the child to be removed from the state." Scinaldi v.
Scinaldi, 2 Va. App. 571, 573, 347 S.E.2d 149, 150 (1986)
(citations omitted). "[I]n a court's decision as to the
propriety of relocating the children . . . 'the welfare of the
children is of primary and paramount importance.'" Parish v.
Spaulding, 26 Va. App. 566, 572, 496 S.E.2d 91, 94 (1998),
aff'd, 257 Va. 357, 513 S.E.2d 391 (1999).
"In every judicial proceeding . . . the 'burden of proof'
is allocated." City of Hopewell v. Tirpak, 28 Va. App. 100,
113, 502 S.E.2d 161, 167 (1998).
The phrase "burden of proof" refers to two
related but distinct concepts: (1) the
"burden of production," which is the
obligation to make a prima facie case, i.e.,
to introduce evidence sufficient as a matter
of law to enable a rational fact finder to
find that a particular proposition of fact
is true and (2) the "burden of persuasion,"
which is the obligation to introduce
evidence that actually persuades the fact
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finder, to the requisite degree of belief,
that a particular proposition of fact is
true.
Id. at 113-14, 502 S.E.2d at 167-68 (internal citations
omitted). The burdens of production and persuasion are
generally allocated to the party seeking to disturb the status
quo. See id. at 114, 502 S.E.2d at 168. "In accordance with
our prior decisions, the moving party bears the burden of
proof." Bostick v. Bostick-Bennett, 23 Va. App. 527, 535, 478
S.E.2d 319, 323 (1996).
In the present case, father contends the trial court erred
by imposing upon him the burden of persuasion on a particular
issue, viz. whether his relationship with his children would be
"substantially impaired" by allowing mother to move them to New
Jersey. He argues that mother, as the moving party, had the
burden to prove that the relocation would not substantially
impair that relationship. We agree.
As we stated in Bostick, "the moving party bears the burden
of proof." 23 Va. App. at 535, 478 S.E.2d at 323. The trial
court generally agreed with this principle, stating, "I am . . .
satisfied . . . that the burden of proof is on the moving party.
It's on the [mother] to prove that the move to New Jersey would
be in the best interests of the children." Mother, therefore,
bore the "burden of proof," i.e. the burdens of production and
persuasion.
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However, as father points out, the court also stated that
it found
the [father] has not proven by a
preponderance of the evidence that the
benefits of a beneficial relationship
between himself and the children would be
substantially impaired if the children were
moved to New Jersey. . . . According to what
I see in the case law, that's the standard
he has to [satisfy]. That is his burden on
that particular issue, and I find that he
has not proven by a preponderance of the
evidence that there would be substantial
impairment.
(Emphasis added). The trial court apparently derived from
Scinaldi the view that father was required to prove by a
preponderance of the evidence that a "substantial impairment" of
his relationship with the children would result from their
removal from Virginia. See 2 Va. App. at 575, 347 S.E.2d at
151. Scinaldi imposes no such burden. Indeed, the allocation
of the burden of proof was not at issue in that case. Rather,
Scinaldi turned upon multiple factors, chiefly the trial court's
failure to address the best interests of the children and the
insufficiency of the evidence on the issue. See id. at 574, 347
S.E.2d at 151. In this case, the trial court erroneously ruled
that father was required to prove "by a preponderance of the
evidence that there would be substantial impairment" to his
relationship with the children.
We find the court's error harmless, however. "When it
plainly appears from the record and the evidence given at trial
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that the parties have had a fair trial on the merits and
substantial justice has been reached, no judgment shall be . . .
reversed . . . [f]or any . . . error committed on the trial."
Code § 8.01-678; see Lavinder v. Commonwealth, 12 Va. App. 1003,
1005, 407 S.E.2d 910, 911 (1991) (en banc) ("Code § 8.01-678
applies to both civil and criminal cases."). "The burden is on
the party who alleges reversible error to show that reversal is
justified." D'Agnese v. D'Agnese, 22 Va. App. 147, 153, 468
S.E.2d 140, 143 (1996).
[W]here a burdened party has presented
evidence [sufficient to establish a prima
facie case], the burden of proof is no
longer relevant and the fact finder must
decide which party prevails based on the
weight of the evidence. In such a
situation, a misallocation of the burden of
proof will be considered harmless error.
Erie Ins. Co./Erie Ins. Exchange v. Flood, 649 A.2d 736, 740
(Pa. Commw. Ct. 1994) (citations omitted); see Great Coastal
Exp., Inc. v. Ellington, 230 Va. 142, 155, 334 S.E.2d 846, 855
(1985) (trial court error regarding burden of proof was harmless
because fact finder necessarily found that plaintiff had carried
its burden); J. B. King & Co. v. C. W. Hancock & Sons, 114 Va.
596, 606, 77 S.E. 510, 514 (1913) (even had trial court
misallocated burden of proof, it would have been harmless
because evidence left no doubt that plaintiff carried its burden
of proof, there being no testimony in the case except its own
and that of its witnesses).
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The trial court found that mother met her burden of proving
that removal of the children to New Jersey would serve their
best interests. In particular, the court cited evidence of the
quality of the schools in the community to which she planned to
move; the generally good environment the community would
provide; the nature of the relationship between the children and
each parent, including the fact that mother was the primary
caregiver for the children; the children's needs, given their
young ages; the improvement of mother's ability to provide for
the children financially that would result from the relocation;
and the role each parent has played and would continue to play
in the children's lives. The court found that, on balance,
mother "carried [her] burden by a preponderance of the evidence,
which is the standard. It's whatever's over 50 percent. And
. . . I believe that she . . . prove[d] that" the relocation
would serve the best interests of the children. "The decree of
the [c]hancellor determining questions of fact on conflicting
evidence ore tenus has the weight of a jury verdict, and will be
permitted to stand unless plainly wrong or without evidence to
support it." Carpenter v. Carpenter, 220 Va. 299, 302, 257
S.E.2d 845, 848 (1979). Thus, because mother established her
prima facie case, the court's error in placing an affirmative
burden of proof on father was harmless.
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Moreover, father presented no evidence to controvert the
mother's evidence that his relationship with the children would
not be substantially impaired. Indeed, father presented no
evidence at all. See Redford v. Booker, 166 Va. 561, 569-70,
185 S.E. 879, 883 (1936) (Once "[a] prima facie case is made out
. . . the burden then rests upon the [opposing party] to produce
evidence if [the prima facie case] is to be overcome."). The
court, therefore, had only mother's evidence upon which to rely
in deciding the case, and that evidence clearly supported the
court's decision. Thus, it plainly appears from the record that
the court's error of law occurred after mother had met her
burden of production to establish a prima facie case. "In such
a situation, misallocation of the burden of proof will be
considered harmless error." Flood, 649 A.2d at 740.
For the reasons stated, we affirm the trial court's
decision.
Affirmed.
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