COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
JAMES F. SCOTT
v. Record No. 0461-98-2
JEAN HALL RUTHERFOORD OPINION BY
JUDGE ROSEMARIE ANNUNZIATA
JAMES F. SCOTT JULY 6, 1999
v. Record No. 1010-98-2
JEAN HALL RUTHERFOORD
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Dixon L. Foster, Judge Designate
Sanford K. Ain (James P. Head; R. Craig
Wood; James M. Johnson; Sherman, Meehan,
Curtin & Ain; McGuire, Woods, Battle &
Boothe, on briefs), for appellant.
John K. Taggart, III (Patricia D. McGraw;
Rachel L. Rust; Tremblay & Smith, on brief),
for appellee.
In these appeals, James F. Scott ("husband") contends the
circuit court judge erred by: 1) amending nunc pro tunc a final
order more than twenty-one days after its entry; 2) exercising
jurisdiction in a matter involving custody and visitation in
violation of the Uniform Child Custody Jurisdiction Act
("UCCJA"); 3) exercising jurisdiction in a matter involving
custody and visitation in violation of the Federal Parental
Kidnapping Prevention Act ("PKPA"); 4) failing to recuse
himself; and 5) finding husband in contempt for failing to pay
an award of attorney's fees. For the reasons that follow, we
affirm the rulings of the circuit court.
I.
BACKGROUND
Husband and Jean Hall Rutherfoord ("wife") were married in
1980 and divorced in 1986 by the Circuit Court of Albemarle
County ("the circuit court"). Until 1995, the parties had joint
custody of their two children, William Scott and Meredith Scott,
born March 29, 1981 and March 23, 1983, respectively.
In August 1995, wife, together with the parties' children,
moved from Virginia to the District of Columbia. Thereafter,
the parties engaged in protracted litigation before the circuit
court over matters relating to custody, visitation, and support.
Wife petitioned for sole custody, which the court granted on a
date undisclosed by the record. In June 1996, appellant
purchased a house in the District of Columbia in order to
facilitate visitation with his children.
On November 12, 1996, the circuit court entered an order
("the November order") which gave "continued" sole custody of
the children to wife. The order also provided husband
visitation with each child, setting out a detailed schedule that
permitted visitation from 9:00 a.m. to 6:00 p.m. on specified
days, varying from month to month, until September 1997. The
order provided no visitation to husband with either child after
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September 28, 1997. In closing, the order provided, "nothing
further to be done in this cause, the same is hereby ORDERED
removed from the docket." The order was signed by counsel for
both parties, by the children's guardian ad litem, and by the
trial judge.
In April 1997, husband filed suit in the Superior Court for
the District of Columbia, allegedly to enforce the circuit
court's November order. Husband contended wife was actively
interfering with the visitation schedule provided by the
November order. Wife responded that husband was attempting to
relitigate issues adjudicated in the circuit court. Wife cited
husband's prayer for relief before the Superior Court for the
District of Columbia, which asked the court, inter alia, to
award him joint custody of his children, to establish weekly
overnight visits with the children and substantial visitation
during school breaks and summer vacations, and to appoint an
independent mental health professional to evaluate the situation
and advise the court as to the best interests of the children.
On May 30, 1997, wife moved the circuit court to strike the
language in the November order removing the case from the
court's docket and to reopen the case for the purpose of
reviewing husband's visitation rights. During a telephonic
hearing on June 5, 1997, husband objected to wife's motion to
reopen, arguing: 1) the court lost jurisdiction over the case
when the November order became final twenty-one days after its
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entry, and 2) jurisdiction over the case rested in the District
of Columbia where the parties and their children resided.
The court disagreed, stating at the hearing that the
November order was not intended to be a final order. The court
recalled that the parties agreed at the time of the November
order that the issue of visitation "was to come back up again
after a year," the parties indicating that they wanted to get
out of court and "see how [they got] along." The court noted
that, under the circumstances of the case, a permanent
visitation schedule could not be established at the time it
entered the November order and that "we said something to the
effect that it would run for one year. We had to be so precise
about every particular part, every holiday and every other time.
But there's no way that we could have done that the next three
or four years at the time, so that was the reason that we were
going to bring the matter back up again, maybe to modify it for
a little more . . . ."
On July 18, 1997, the court entered an order reopening the
case and placing it upon the active docket. In the same order,
the court also amended its November order nunc pro tunc by
deleting the language: "And nothing further remaining to be
done in this cause, the same is hereby ORDERED removed from the
docket."
On July 22, 1997, the Superior Court for the District of
Columbia dismissed husband's suit, finding Virginia retained
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jurisdiction over the issues raised. In its order dismissing
the case, the Superior Court stated that Virginia was the more
appropriate forum to determine the custody issues, noting
[t]he issue is not simply whether the
District of Columbia may assume
jurisdiction, but whether it is in the best
interest of the parties and the children for
this forum to be utilized in light of the
November 1996 Virginia Circuit Court's
custodial order and its most recent June 5,
1997, telephonic hearing. Virginia already
has a body of information, which this
jurisdiction does not. Thus, it would
appear that Virginia has continuing
jurisdiction in this case.
On October 7, 1997, the circuit court heard argument on
husband's motion to dismiss wife's request to reinstate the
case. Husband contended the court did not have subject matter
jurisdiction because the parties were residents of the District
of Columbia and, under the PKPA and UCCJA, only the District of
Columbia had jurisdiction. The court denied husband's motion,
stating it "had the authority to enter a nunc pro tunc order"
and that it "should retain jurisdiction until we have another
hearing." On March 30, 1998, the circuit court held a scheduled
status hearing and entered a final order in this case.
II.
AMENDMENT OF THE NOVEMBER ORDER NUNC PRO TUNC
Husband contends the circuit court erred by amending the
November order nunc pro tunc more than twenty-one days after its
entry. Husband further contends the court, having removed this
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case from its docket by the terms of the November order, lacked
jurisdiction to reopen the case and reinstate it on the active
docket by order of July 18, 1997. We disagree.
Under settled law, the divorce court generally has
continuing jurisdiction to revise or alter its decree concerning
the custody and maintenance of minor children. See Code
§ 20-108; Lutes v. Alexander, 14 Va. App. 1075, 1083, 421 S.E.2d
857, 862 (1992). Code § 20-108 provides in relevant part as
follows:
The court may, from time to time after
decreeing as [to the custody or visitation
of minor children], on petition of either of
the parents, or on its own motion or upon
petition of any probation officer or
superintendent of public welfare, . . .
revise and alter such decree concerning the
care, custody, and maintenance of the
children and make a new decree concerning
the same, as the circumstances of the
parents and the benefit of the children may
require.
The court's authority to alter a previous decree and enter a new
decree "as the circumstances of the parents and the benefit of
the children may require" is unaffected by the court's prior
removal of the case from its active docket. See Code § 20-108.
Although the court unnecessarily stated that it was deleting
nunc pro tunc the language of the November order that removed
the case from its docket, the court had the authority under Code
§ 20-108 to conduct further hearings and enter a new decree
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concerning the care, custody, and maintenance of the parties'
minor children. 1
Accordingly, the trial court was not revising its order
nunc pro tunc, despite its language to that effect and,
therefore, that issue is not before us.
III.
ALLEGED VIOLATION OF UNIFORM CHILD CUSTODY JURISDICTION ACT
Husband next contends the circuit court violated the UCCJA
by continuing to exercise jurisdiction in this case after both
parties and their children had moved to the District of
Columbia.
Under the UCCJA, a court having competence to decide child
custody matters has jurisdiction to modify a child custody
determination if:
1. This Commonwealth (i) is the home state
of the child at the time of the commencement
of the proceeding, or (ii) had been the
child's home state within six months before
the commencement of the proceeding . . . ;
or
2. It is in the best interest of the child
that a court of this Commonwealth assume
jurisdiction because (i) the child and his
parents, or the child and at least one
contestant, have a significant connection
with this Commonwealth, and (ii) there is
available in this Commonwealth substantial
evidence concerning the child's present or
future care, protection, training, and
personal relationships; or
1
The court's jurisdiction under Code § 20-108, however, is
further subject to the requirements of the UCCJA and PKPA, which
we address below.
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3. The child is physically present in this
Commonwealth and (i) the child has been
abandoned, or (ii) it is necessary in an
emergency to protect the child because he
has been subjected or threatened with
mistreatment or abuse or is otherwise
neglected or dependent; or
4. (i) It appears that no other state would
have jurisdiction under prerequisites
substantially in accordance with subdivision
1, 2, or 3 of this subsection, or another
state has declined to exercise jurisdiction
on the ground that this Commonwealth is a
more appropriate forum to determine the
custody of the child, and (ii) it is in the
best interests of the child that this court
assume jurisdiction.
Code § 20-126(A).
Husband contends that none of the four above-referenced
circumstances existed in this case to confer jurisdiction upon
the circuit court once it had entered its November order. We
disagree and find that the court properly exercised jurisdiction
under Code § 20-126(A)(2) and (4).
The Virginia Supreme Court stated in Middleton v. Middleton
that, like the Model Act upon which it was based, the Virginia
UCCJA was
enacted to avoid jurisdictional competition
and conflict with courts of other states in
matters of child custody; to promote
cooperation with courts of other states so
that a custody decree is rendered in a state
which can best decide the issue in the
interest of the child; to assure that
litigation over the custody of a child
ordinarily occurs in the state that is most
closely connected with the child and his
family and where significant evidence
concerning his case, protection, training
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and personal relationships is most readily
available; to assure that the courts of this
state decline the exercise of jurisdiction
when the child and his family have a closer
connection with another state; to discourage
continuing controversies over child custody;
to deter abductions and other unilateral
removals of children undertaken to obtain
custody awards; to facilitate the
enforcement of foreign custody orders and to
avoid relitigating foreign custody decisions
in this state so far as possible; and to
promote the exchange of information and
other forms of mutual assistance between
courts of this state and those of other
states concerned with the same child.
227 Va. 82, 93, 314 S.E.2d 362, 367 (1984).
The record plainly reveals the Superior Court for the
District of Columbia declined to exercise jurisdiction over this
case on the ground that Virginia "has continuing jurisdiction."
In doing so, the Superior Court considered whether its exercise
of jurisdiction would be in the best interests of the parties'
children "in light of the [circuit court's] November 1996 . . .
custodial order and its most recent June 5, 1997, telephonic
hearing," in which the circuit court clarified that it intended
to revisit the issue of visitation after the schedule
established by the November order expired. The Superior Court
also cited the substantial body of evidence the circuit court
had accumulated in adjudicating the issues of custody and
visitation.
We accordingly find that the circuit court properly
modified the November order pursuant to Code § 20-126(A)(4).
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Under this provision, a Virginia court may exercise jurisdiction
when another state has declined to do so and its exercise of
jurisdiction is in the best interests of the children at issue.
It is undisputed that the circuit court had jurisdiction over
the parties' custody proceeding following wife's move to the
District of Columbia in August 1995. As we earlier determined,
under Code § 20-108 the circuit court retained continuing
jurisdiction to amend its decree upon the entry of the November
order. Subsequently, the Superior Court for the District of
Columbia declined jurisdiction, finding Virginia was the more
appropriate forum, that Virginia's jurisdiction was continuing,
and that it was in the best interest of the children to have the
matter adjudicated in Virginia. Finally, we note that the
Superior Court's decision to decline exercising jurisdiction
over this matter is consistent with one of the purposes of the
UCCJA, which seeks to avoid the relitigation of foreign custody
decisions. As reflected by the record, husband sought to raise
in his pleading before the Superior Court issues determined
approximately five months earlier by the Virginia circuit court,
including the custody of the children and the visitation to
which husband was entitled.
We also find no merit in husband's argument that, in the
absence of continuing jurisdiction in Virginia, the circuit
court cannot exercise jurisdiction based solely on the Superior
Court's refusal to assume jurisdiction on forum non conveniens
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grounds. The Commentary to § 6 of the Model UCCJA, promulgated
by the National Conference of Commissioners on Uniform State
Laws and codified in Virginia at Code § 20-129, makes clear
that, even if Virginia lacked continuing jurisdiction, it would
not be improper for one of its courts to adjudicate a matter if
it constituted the most convenient forum.
When the courts of more than one state
have jurisdiction [under Code § 20-126]
. . . , priority in time determines which
court will proceed with the action, but the
application of the inconvenient forum
principle of [Code § 20-130] may result in
the handling of the case by the other court.
While jurisdiction need not be yielded
. . . if the other court would not have
jurisdiction under the criteria of the Act,
the policy against simultaneous custody
proceedings is so strong that it might in a
particular circumstance be appropriate to
leave the case to the other court even under
such circumstances.
Unif. Child Custody Jurisdiction Act § 6, 9 U.L.A. 219,
commentary at 220 (1988) (emphasis added).
Finally, we find that the circuit court's exercise of
jurisdiction was proper under Code § 20-126(A)(2), which permits
the court to modify its November order based on the significant
connection husband and the children maintain with the
Commonwealth and on the presence of substantial evidence
pertaining to the children's present and future personal
relationships. Upon wife's move to the District of Columbia in
August 1995, the parties engaged in proceedings concerning the
custody and visitation of their children for approximately
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fifteen months before the circuit court's entry of the November
order establishing a temporary visitation schedule. During
these proceedings in which the court held numerous hearings,
heard testimony from both parties, and spoke with the children,
a significant body of evidence was developed for the court's
consideration. The children's guardian ad litem, a resident of
Virginia, represented the children throughout the proceedings.
Furthermore, notwithstanding husband's purchase of a house and
his purported residency in the District of Columbia, the record
also reveals that husband continued to own a residence and
business in Virginia. In short, the record shows that the
children and husband "have a significant connection with this
Commonwealth" and that "there is available in this Commonwealth
substantial evidence concerning [their] present or future care,
protection, training, and personal relationships." Code
§ 20-126(A)(2). Thus, the circuit court's exercise of
jurisdiction was not improper under the UCCJA.
IV.
ALLEGED VIOLATION OF THE PARENTAL KIDNAPPING PREVENTION ACT
The husband further contends that the circuit court's
exercise of jurisdiction violated the PKPA. See 28 U.S.C.
§ 1738A. We find the mandates of the PKPA have no bearing on
the issues raised in this case.
The PKPA was enacted in support of the same goals and
policies that underlie the UCCJA. See Thompson v. Thompson, 484
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U.S. 174, 177 (1988) ("[O]ne of the chief purposes of the PKPA
is to 'avoid jurisdictional competition and conflict between
State courts.'" (quoting Pub. L. 96-611, 94 Stat. 3569,
§ 7(c)(5), note following 28 U.S.C. § 1738A)). However, for the
purposes of this case, one important distinction exists. Unlike
the UCCJA, which attempts to avoid the exercise of jurisdiction
by multiple states over a single custody matter by providing a
forum with jurisdiction to decide the case, the PKPA "only
addresses whether another state's order is entitled to full
faith and credit." Megan Clark, A Proposal to End
Jurisdictional Competition in Parent/Non-Parent Interstate Child
Custody Cases, 28 Ind. L. Rev. 65, 90 (1994). See Thompson, 484
U.S. at 181, 183 ("[T]he principal problem Congress was seeking
to remedy was the inapplicability of full faith and credit
requirements to custody determinations. . . . The sponsors and
supporters of the Act continually indicated that the purpose of
the PKPA was to provide for nationwide enforcement of custody
orders made in accordance with the terms of the UCCJA. . . .
Congress' chief aim in enacting the PKPA was to extend the
requirements of the Full Faith and Credit Clause to custody
determinations . . . .").
Here, the enforcement or modification of an out-of-state
court order regarding custody or visitation was not in issue
before the circuit court. Instead, the circuit court was asked
to address and modify its own previous order. Under these
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facts, the full faith and credit clause is irrelevant. As a
result, the PKPA is also irrelevant.
Accordingly, we find the circuit court's exercise of
continuing jurisdiction over the custody and visitation issues
presented by the parties subsequent to the November order did
not violate any provision of the PKPA.
V.
COURT'S FAILURE TO RECUSE ITSELF
On December 8, 1997, husband moved the trial judge to
recuse himself or transfer the case to the Superior Court for
the District of Columbia. No testimony was received in
conjunction with the allegations. Instead, husband filed two
affidavits over wife's objection. Graeme Baxter's affidavit
stated she overheard the trial judge make unkind remarks about
husband to the court reporter and bailiff while she waited in
the courtroom before testifying at a hearing on October 30,
1997. According to Baxter, the judge stated that "the problem
with this case is that [husband] has gone about this the wrong
way because he is too rich," that "[husband] bought his way onto
the board of one of the children's schools," and that "all of
[husband's] money could not help him to have a relationship with
his children." Baxter also alleged the judge made these remarks
with a tone that indicated "strong animosity" toward husband.
Husband, by affidavit, also alleged the judge's wife had asked
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one of husband's former neighbors to "get the Garden Club girls
to rally round [wife]" regarding the parties' dispute.
At a hearing on December 9, 1997, husband asserted that,
based on the judge's alleged statements, he had lost faith in
the judge's ability to act impartially, contending that his
perception of bias required the judge to recuse himself or
transfer the case to the District of Columbia. In rebuttal,
wife's counsel proffered that he had contacted the court
reporter, who could not verify that such statements had been
made. The statement allegedly made by the judge's wife to
husband's former neighbor was denied by the neighbor. 2 Wife also
raised hearsay objections to husband's use of the affidavits. 3
Addressing husband's allegations from the bench, the judge
stated he held no feelings of animosity toward him and did not
believe recusal was "necessary or appropriate . . . at this
time." The judge entered an order denying husband's motion on
2
The denial was submitted by the proffer of wife's counsel.
3
The court did not expressly rule on this objection but
stated from the bench:
I don't think it's incumbent upon the Court
to sit here and answer these affidavits or
these allegations that are made in these
affidavits. I, quite frankly, would think
that the person would be brought here to
testify before the Court as to what was said
or wasn't said, rather than an affidavit, so
that somebody can have an opportunity to find
out, you know, cross-examine. However, maybe
this is the proper way to proceed. I don't
know. I suppose it is.
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the same day. We find no error in the judge's denial of
husband's motion to recuse.
Decisions regarding a judge's impartiality are to be made
by the judge in the exercise of his or her discretion and will
be reversed on appeal only upon a finding that the court abused
its discretion in deciding the question. See Davis v.
Commonwealth, 21 Va. App. 587, 591, 466 S.E.2d 741, 743 (1996).
In the exercise of such discretion, "a judge must not only
consider his or her true state of impartiality, but also the
public's perception of his or her fairness, so that public
confidence in the integrity of the judicial system is
maintained." Buchanan v. Buchanan, 14 Va. App. 53, 55, 415
S.E.2d 237, 238 (1992).
In this case, husband's claim of bias is without evidence
to support it. Under Virginia law, unless subject to a hearsay
exception, affidavits are generally not admissible as evidence.
See Neal v. Commonwealth, 15 Va. App. 416, 421-22, 425 S.E.2d
521, 524-25 (1992); Charles E. Friend, The Law of Evidence in
Virginia § 18-28 (4th ed. 1993). "'When evidence apparently
inadmissible is offered for a limited purpose, the party making
the offer has the burden of making clear to the court his or her
theory of admissibility.'" Neal, 15 Va. App. at 422, 425 S.E.2d
at 525 (quoting State v. Davis, 269 N.W.2d 434, 442 (Iowa
1978)). Other than the statements presented by affidavit, no
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evidence in support of husband's allegations of bias was
presented.
Even assuming the court admitted the affidavits
notwithstanding their hearsay nature, we find no abuse of
discretion in the court's denial of husband's motion to recuse.
Nothing in the record indicates that any bias actually affected
the proceedings. See Buchanan, 14 Va. App. at 56, 415 S.E.2d at
238. Moreover, "'courts are practically unanimous in the view
that neither the forming or expressing of an opinion upon a
matter or issue which may come before him in a latter proceeding
disqualifies a judge in a subsequent matter." Id. at 55, 415
S.E.2d at 238. Finally, contrary to husband's argument, it is
the public's perception of bias, not a litigant's personal
perception, that a judge must consider when determining whether
recusal is necessary to preserve the integrity of the judicial
system. See id. We find no abuse of discretion in the trial
judge's assessment of his own impartiality and in his refusal to
recuse himself based on husband's personal perception of bias.
V.
FINDING OF CONTEMPT
At the hearing on December 9, 1997, wife informed the court
of a bill for approximately $15,000 in attorney's fees and asked
that she be awarded the full amount, rather than seventy-five
percent of her fees as the court had done in the past. In
support of her request, wife cited three new lawsuits filed by
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husband against her and her inability to pay her current legal
fees. Husband objected to wife's request.
The court decided to alter its previous award of fees and
ordered husband to pay eighty percent of wife's fees, amounting
to $12,905.38, within thirty days. The court offered no reasons
for its decision, stating, "I think [the fees] ought to be
altered a little bit, but we're not going to alter it a whole
lot. I think it ought to be eighty percent and twenty percent."
Husband immediately noted an objection without stating his
grounds. On the court's order, husband wrote his objections
above counsel's signature; these objections were based on the
court's lack of jurisdiction and the court's failure to grant
his motion to recuse.
On January 21, 1998, wife filed a Petition for Order to
Show Cause why husband should not be held in contempt for
failing to pay her attorney's fees. The court issued an Order
to Show Cause and, on January 23, 1998, heard argument.
On January 30, 1998, the court entered a decree finding
husband in contempt, but permitting husband to purge the
contempt if he paid the fees or was legally relieved of the
necessity to do so. Husband subsequently filed an irrevocable
letter of credit in an amount sufficient to cover the attorney's
fees.
Husband asserts two grounds upon which the court allegedly
erred in finding him in contempt. Husband first argues the
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court's order to pay wife's attorney's fees was void because the
court, for reasons already discussed above, did not have
jurisdiction. See Lating v. Commonwealth, 205 Va. 511, 513, 137
S.E.2d 896, 898 (1964) ("[T]he disobedience of a void order is
not contempt."). On the grounds stated earlier, we find this
argument to be without merit.
Husband also contends the court erred in entering its order
to pay attorney's fees without an evidentiary hearing or
competent testimony to determine whether its award was
reasonable. Because husband did not raise an objection on this
ground before the circuit court, Rule 5A:18 bars husband from
raising this claim for the first time on appeal. See Rule
5A:18; Lee v. Lee, 12 Va. App. 512, 517, 404 S.E.2d 736, 738
(1991) (en banc). Furthermore, having examined the issue raised
herein, we find no reason to invoke any exception to the general
applicability of Rule 5A:18.
For the reasons stated, we affirm the decisions of the
circuit court.
Affirmed.
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