COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
BILLY DEAN NANCE
MEMORANDUM OPINION *
v. Record No. 0960-01-2 PER CURIAM
OCTOBER 23, 2001
VALERIE LIMERICK
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
Richard J. Jamborsky, Judge Designate
(Jennifer M. Simmons; Law Offices of M. R.
Reamy, on brief), for appellant. Appellant
submitting on brief.
No brief for appellee.
Billy Dean Nance ("father") appeals from the decision of
the circuit court terminating his visitation rights with his
daughter. Father contends the trial court erred by admitting
evidence relating to events that occurred prior to the juvenile
and domestic relations district court ("juvenile court") order
allowing father visitation with his daughter. For the reasons
which follow, we affirm the decision of the trial court.
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,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999). Ailyah Dawn
Nance was born to father and Valerie Limerick ("mother") on
March 13, 1995. On September 21, 1999, the juvenile court heard
evidence on father's motion to amend visitation. The court
granted father's motion and ordered one visit between father and
Ailyah every other month. Mother took Ailyah to visit father at
the correctional facility in which father is incarcerated. On
February 25, 2000, mother filed a motion to amend the earlier
visitation order, citing her daughter's nightmares following the
visit to the prison. The juvenile court granted mother's motion
and terminated father's visits. Father appealed, and the
circuit court heard the case on March 20, 2001. The parties
presented testimony relating to events that had occurred after
the September 21, 1999 order. Over father's objection, the
circuit court also heard evidence of father's abuse of mother
which had occurred in 1997. The circuit court likewise
terminated father's visitation.
ANALYSIS
Father contends that by hearing evidence of the 1997
domestic abuse, the circuit court relitigated issues that had
already been decided and ruled upon in the September 21, 1999
visitation order. Assuming without deciding that the trial
court erred in admitting the evidence, we find the error
harmless.
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"When it plainly appears from the
record and the evidence given at trial 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).
Stockdale v. Stockdale, 33 Va. App. 179, 185, 532 S.E.2d 332,
336 (2000).
"The trial court, in the interest of the children's
welfare, may modify visitation rights of a parent based upon a
change in circumstances." Fariss v. Tsapel, 3 Va. App. 439,
442, 350 S.E.2d 670, 672 (1986). "In making the determination
whether there has been a change in circumstances, the trial
court may admit testimony concerning any fact that tends to
establish the probability (or improbability) of a change in
circumstances." Id. In Fariss, the trial court admitted
evidence concerning Fariss' residence several months prior to
the initial visitation decree. We held that "[i]n the absence
of other evidence, [the] testimony regarding the conditions of
Fariss' residence prior to the entry of the initial visitation
decree was not germane to the decision whether to modify that
decree." Id. In this case, however, the court was presented
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with ample evidence separate from the 1997 abuse to support its
decision to terminate father's visitation.
Mother testified that when she took Ailyah to visit father
at the correctional center, she and father argued. When Ailyah
began to cry, father refused to allow her to go to mother and
stated, "See what your mother has done to me." Mother also
testified that shortly after the visit, Ailyah began having
nightmares. Mother took Ailyah to a therapist to help the girl
cope with the dreams. The trial court found that in light of
the changed circumstances, it was in the best interests of the
child to terminate father's visitation. Because the trial court
heard sufficient evidence of a change in circumstances to
support the termination of visitation, we find the admission of
the evidence of the prior domestic abuse harmless. Accordingly,
we affirm the decision of the trial court.
Affirmed.
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