COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Senior Judge Cole
THOMAS J. GOUDREAU
MEMORANDUM OPINION * BY
v. Record No. 1036-00-4 PER CURIAM
DECEMBER 12, 2000
KATHERINE LYNN GOUDREAU
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Judge
(Carl P. Horton, on brief), for appellant.
(James Ray Cottrell; Christopher W.
Schinstock; Gannon, Cottrell & Ward, P.C., on
brief), for appellee.
Thomas J. Goudreau (father) appeals from an order of the
Fairfax County Circuit Court adjudicating a motion for restraining
order and sanctions filed by Katherine Lynn Goudreau (mother).
Father contends the circuit court erred by 1) refusing to grant
him a continuance; 2) addressing issues beyond the scope of
mother's motion and demonstrating animus toward father; 3)
granting partial relief to mother; and 4) making an award of
attorney's fees to mother. Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the judgment of the
circuit court. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
On June 29, 1999, the circuit court entered an order that
permitted mother to relocate to Utah with the couple's two
children and awarded mother sole custody of the boys. Mother
subsequently filed a motion for restraining order and sanctions
wherein she contended that father was sending her harassing
emails, interfering with her authority as the children's sole
custodian, and engaging in unsolicited and unwanted communications
with mother's attorney and with third parties regarding the
couple's children. Mother asked the court to enjoin father from
sending unsolicited communications to her or any third party,
including her attorney, regarding the children, with limited
exceptions. She moved the court to prohibit father from taking
the children to any medical care provider except in cases of
emergency. Mother also asked for an award of attorney's fees and
costs connected with pursuing the motion.
The February 25, 2000 hearing on mother's motion was
scheduled for thirty minutes. Father moved for a continuance on
the ground that he needed more time to review a collection of
emails he had sent that mother had compiled into an exhibit book.
Father further asserted that he wanted to depose the doctor with
whom mother alleged father was having inappropriate
communications. The court denied the motion, finding that thirty
minutes would suffice for the hearing and that mother, who was
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living in Utah, would face a hardship at having to return to
Virginia for another hearing.
One of the issues addressed during mother's subsequent
testimony was father's opposition to one of the children
undergoing an adenoid tonsillectomy. Mother stated that this
procedure had been recommended by a physician and that she had
advised father of this on January 10, 2000. She testified that at
a January 20, 2000 hearing, the court had indicated that, as sole
custodian, it was ultimately mother's decision whether the child
would undergo the surgery. Nevertheless, at father's request,
mother sought a second opinion. The second physician also
recommended the surgery. Mother subsequently learned that, while
the child was visiting father in Virginia, father took him to a
local physician for another opinion on the proposed surgery. This
consultation was undertaken without mother's knowledge or consent.
Mother testified regarding conversations she had with the
children's physician pertaining to communications between the
physician and father. The trial court ruled, however, that it was
not receiving this testimony for the substance of the reported
contacts.
Mother submitted into evidence a notebook containing emails
and other written communications sent by father to her and various
third parties.
Father denied harassing or receiving any complaints from
healthcare providers regarding his communications with them. On
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cross-examination, father agreed that he would no longer contact
counsel for mother directly unless he was proceeding pro se.
The circuit court found that father had "engaged in a
vendetta with his former wife, characterized by sending
accusative, sarcastic, bullying, and otherwise wholly
inappropriate E-mails, which strongly suggest that he is
emotionally incapable of participating in a constructive
consultation with his ex-wife in the best interests of his
children." Nevertheless, the court refused to prohibit father
from communicating with mother via email. The court also refused
to prohibit father from communicating with doctors and school
officials regarding the couple's children.
The court did enjoin father from communicating directly with
mother's attorney. And the court found that father had violated
the court's order granting mother sole custody of the children by
unilaterally obtaining a second medical opinion regarding the one
son's proposed adenoid tonsillectomy.
The court awarded legal fees to mother, the amount of which
was litigated at a separate hearing.
II.
"The decision to grant a continuance is within the sound
discretion of the trial court and its ruling will be overturned
only 'if it is plainly erroneous and upon a showing of abuse of
discretion and resulting prejudice to the movant.'" Ohlen v.
Shively, 16 Va. App. 419, 422, 430 S.E.2d 559, 560 (1993)
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(quoting Mills v. Mills, 232 Va. 94, 96, 348 S.E.2d 250, 252
(1986)).
Mother filed her motion for a restraining order on February
8, 2000, and father was put on notice that his communications
with the children's physicians would be at issue. There is
nothing in the record indicating that father made any effort to
depose any witnesses prior to the February 25 hearing.
Moreover, father has failed to establish how he was prejudiced
by the court's ruling. Mother was not able to present any
evidence that father was harassing medical providers and, other
than requesting the opportunity to depose witnesses, father did
not advise the court that he had any additional evidence he
wanted to present. Accordingly, the trial court did not abuse
its discretion when it refused to continue the matter.
III.
Father contends the court erred by going beyond the scope
of mother's motion and asserts the court demonstrated an animus
toward him. In his exceptions to the court's order, father did
not assert that the court had taken any action beyond the scope
of that requested by mother. Father did state that mother's
exhibits "taken one at a time, do not justify the Court's
reaction against [father]."
Although the court expressed a belief that father was
acting inappropriately in his relationship with mother, the
court did not impose any limits on father's communications with
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mother, school officials, or medical care providers. Father's
assertion that the court let its passions dictate its decision
is without support in the record. In addition to the fact that
the court did not grant any relief beyond that requested in
mother's motion, father did not state this particular objection
to the circuit court and thus failed to preserve it for appeal.
See Rule 5A:18.
IV.
Father contends the court erred in granting partial relief
to mother. The only relief the court granted mother was
enjoining father from directly contacting mother's attorney.
Father had agreed during the hearing that he would no longer
engage in this behavior. Accordingly, this assignment of error
is without merit.
V.
"An award of attorney's fees is a matter submitted to the
trial court's sound discretion and is reviewable on appeal only
for an abuse of discretion." Graves v. Graves, 4 Va. App. 326,
333, 357 S.E.2d 554, 558 (1987).
The court found that father violated the order awarding
mother sole custody of the couple's children by unilaterally
seeking a second medical opinion for the one son's proposed
tonsillectomy. And father waited until near the end of the
hearing before he agreed to stop sending unsolicited faxes to
mother's attorney. Finally, while the court denied mother much
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of the relief she sought, it found merit in mother's claims that
father's communications with her and others were occasionally of
a harassing nature. Under the circumstances, we cannot state
that the trial court abused its discretion in awarding mother
attorney's fees. 1
Mother has requested an award of attorney's fees for
defending this appeal. Upon consideration of the entire record
in this case, we hold that she is entitled to a reasonable
amount of additional attorney's fees, and we remand for an award
of further costs and counsel fees incurred in this appeal. See
O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98 (1996).
For the foregoing reasons, the judgment of the circuit
court is affirmed, and the matter is remanded for an award of
costs and fees.
Affirmed and remanded.
1
Mother moved to dismiss the appeal on the ground that
father failed to file the transcript from the April 21, 2000
hearing, where the circuit court accepted evidence regarding the
amount of attorney's fees to which mother was entitled. On
appeal, father challenges the court's decision to award
attorney's fees, but not the amount awarded. Accordingly, the
April 21 transcript is not necessary to adjudicate the appeal,
and mother's motion to dismiss is denied.
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