James F. Scott v. Jean Hall Rutherfoord

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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