COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
GREGORY JUDE DeVEAU
MEMORANDUM OPINION *
v. Record No. 0915-01-4 PER CURIAM
OCTOBER 2, 2001
MUTSUMI AZEMOTO
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
(Ted Kavrukov; Kavrukov & DiJoseph, LLP, on
brief), for appellant.
(Timothy J. McGary, on brief), for appellee.
Gregory Jude DeVeau, father, appeals a decision of the trial
judge. On appeal, he argues the trial judge erred by: (1)
denying his motion to transfer jurisdiction of child custody and
visitation issues to Maryland; (2) denying a rule to show cause
finding Mutsumi Azemoto, mother, in contempt; and (3) removing the
requirement of the children's supervised visitation with mother.
Upon reviewing the record and briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the decision of the trial court. See Rule 5A:27.
BACKGROUND
Father and mother were divorced by final decree entered in
the trial court on August 10, 1995. On May 1, 1995, the trial
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
judge entered an order awarding custody of the parties' two
children to father and reserving supervised visitation with
mother. Mother had attempted to abduct one of the children to
Japan.
On August 11, 2000, father filed a motion to transfer custody
and visitation issues to Annapolis, Maryland, where he had been
residing with the children. Mother opposed the motion, and she
filed a motion to modify visitation, requesting, among other
things, that the trial judge terminate the requirement that her
visitation with the children be supervised. Father also filed a
petition for a rule to show cause, contending that mother had
failed to pay court-ordered attorney's fees and that she had
failed to timely pay court-ordered child support.
The trial judge conducted a hearing on January 25, 2001
concerning all of the motions. On March 9, 2001, the trial judge
entered an order ruling on the issues. The trial judge lifted the
restriction of the children's supervised visitation with mother.
The trial judge also refused to find mother in contempt and denied
father's motion to transfer the case to Maryland. Father appeals
these rulings.
MOTION TO TRANSFER JURISDICTION
Under the former Uniform Child Custody Jurisdiction Act
(UCCJA), 1 "[a] court which has jurisdiction [to modify a decree]
1
On July 1, 2001, the legislature repealed the UCCJA and
enacted the Uniform Child Custody Jurisdiction and Enforcement
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may decline to exercise its jurisdiction . . . if it finds that it
is an inconvenient forum . . . and that a court of another state
is a more appropriate forum." Code § 20-130(A). We will reverse
a trial court's decision whether to exercise its jurisdiction only
upon a finding of abuse of discretion. See Johnson v. Johnson, 26
Va. App. 135, 147, 493 S.E.2d 668, 673 (1997).
Father has not demonstrated abuse of discretion on the part
of the trial judge in exercising jurisdiction over this matter.
Although father and the children have lived in Maryland since June
1998, Virginia was the home state of the children at the start of
the proceedings. In addition, mother continues to be domiciled in
Virginia. The Virginia courts have ruled on visitation matters
involving these parties since 1995. Indeed, in her ruling, the
trial judge commented that the file in this case is the biggest
file of any case in the Fairfax County Circuit Court.
Furthermore, the trial judge indicated that she lacked
authority to transfer the case to Maryland because there was no
pending matter concerning these parties in a Maryland court. In
addition, father's motion requested only that the case be
transferred to "Annapolis, Maryland" without further
identification of the appropriate court. "[B]efore the trial
court should defer jurisdiction to another forum, it should know
Act. Code §§ 20-146.1 through 20-146.38. This case involves
the former UCCJA as it was in effect at the time of the
proceeding.
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the identity of that forum." Mubarak v. Mubarak, 14 Va. App. 616,
622, 420 S.E.2d 225, 228 (1992). The trial judge further stated
that if "something" was filed in Maryland, then she would confer
with a Maryland judge about which state would be the most
appropriate forum. See Code § 20-130(D).
Moreover, information regarding the issues involved in this
matter, whether mother was in contempt of court and whether mother
should be allowed unsupervised visitation with the children, was
more readily available in Virginia, mother's residence. While the
children's residence in Maryland may merit a future determination
that Virginia is an inconvenient forum, we cannot say the trial
judge abused her discretion in this instance by refusing to make
that determination prior to ruling on father's rule to show cause
for violations of existing court orders and on mother's motion for
unsupervised visitation. Therefore, the Virginia trial court had
jurisdiction under former Code § 20-126(A)(1)(i).
RULE TO SHOW CAUSE
By court order entered on June 28, 1995, mother was ordered
to pay father $47,837 for his attorney's fees. Mother did not pay
the attorney's fees. Father filed a petition for a rule to show
cause. On September 18, 2000, another trial judge of the Fairfax
County Circuit Court issued the rule to show cause. However,
prior to the hearing on the rule, the trial judge in this matter
ruled that because there had been a standing order in the case
that no motions in this case were to be docketed without her prior
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approval, the previous rule was set aside. The trial judge then
heard evidence concerning father's rule to show cause at the
January 25, 2001 hearing.
Father contends the trial judge erred in not proceeding on
the rule to show cause issued by the other trial judge. However,
a trial court has "inherent authority to administer cases on its
docket." Yarbrough v. Commonwealth, 258 Va. 347, 356, 519 S.E.2d
602, 605 (1999), aff'd, ___ Va. ___, ___ S.E.2d ___ (2001).
Because father's rule was heard by the trial judge who was
familiar with the case, we cannot say the trial judge erred in
hearing the evidence on the rule to show cause.
Evidence was presented that father discharged his attorney's
fees in bankruptcy proceedings. Moreover, mother presented
evidence that she had financial difficulties. The trial judge
ruled that mother's failure to pay father's attorney's fees was
not contemptuous.
"On appellate review of this issue, we may reverse the ruling
of the trial court only if we find that it abused its discretion.
A trial court may hold a[n] . . . obligor in contempt for failure
to pay where such failure is based on unwillingness, not
inability, to pay." Barnhill v. Brooks, 15 Va. App. 696, 704, 427
S.E.2d 209, 215 (1993). We cannot conclude, based on the evidence
in this record, that the trial judge abused her discretion.
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UNSUPERVISED VISITATION
A party seeking to modify an existing
custody order bears the burden of proving
that a change in circumstances has occurred
since the last custody determination and
that the circumstances warrant a change of
custody to promote the children's best
interests. In deciding whether to modify a
custody order, the trial court's paramount
concern must be the children's best
interests. However, the trial court has
broad discretion in determining what
promotes the children's best interests.
Brown v. Brown, 30 Va. App. 532, 537-38, 518 S.E.2d 336, 338
(1999) (citations omitted).
The requirement of supervised visitation with mother was
imposed in June 1995. Thus, the requirement had been in effect
for almost six years. The trial judge found that since 1995, the
mother and the children had formed stronger ties to the community.
After mother attempted to abduct one of the children, the trial
court required mother to surrender her passport to the court.
Since that time, mother had twice retrieved her passport from the
court and traveled to Japan without incident. Upon her return
from Japan, mother then returned her passport to the trial court.
Mother is employed in the area and has improved her ability to
speak English.
Father presented testimony from Dr. Victor Elian that mother
still presented a flight risk. However, Dr. Elian admitted that
he had had no contact with mother since January 1996, and he met
with mother once in 1995. The trial judge specifically found that
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these factors called into question the weight she gave his opinion
testimony. "In determining the weight to be given the testimony
of an expert witness, the fact finder may consider the basis for
the expert's opinion." Street v. Street, 25 Va. App. 380, 387,
488 S.E.2d 665, 668-69 (1997) (en banc). The trial judge found
that mother presented no future risk for abducting the children.
The trial judge also indicated she accepted the testimony of
Dr. Verna M. Fields, a clinical and forensic psychologist, who had
had contact with mother about every ten days from 1995 until the
date of the hearing. Dr. Fields opined that mother presented no
flight risk because mother had established "roots" in Virginia and
had established herself in a professional career. Dr. Fields also
opined that it is detrimental to the children to have continued
supervised visitation with mother because it "sets up a very false
situation" and is a "barrier" to spontaneity between mother and
the children.
The trial judge further found that father had exhibited
"inappropriate" behavior in front of the children as a result of
the difficulties of the supervision requirement. In addition,
mother testified that the few unsupervised visits she had had with
the children were "more comfortable" and "free," resulting in more
conversation between her and the children.
The trial judge ruled that the supervision requirement had
"been the source of ongoing difficulties between the parties" and
had proved to be "very cumbersome, very expensive," and, after six
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years, "detrimental to the children." The trial judge ordered
that the visitation schedule would remain unchanged, but the
requirement for supervision would be lifted for a period of six
months. After that time, the parties would return for a "status
review" to determine if changes are necessary. Based on this
record, we cannot say that the trial judge abused her discretion
in this ruling.
Accordingly, the decision of the trial judge is summarily
affirmed.
Affirmed.
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