COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
SHARON HATHAWAY FORREST
v. Record No. 2256-94-4 MEMORANDUM OPINION *
PER CURIAM
GREGORY LAWRENCE RUHLIN JULY 18, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jack B. Stevens, Judge
(Sharon Hathaway Forrest, pro se, on briefs).
(Andrew G. Lawrence, on brief), for appellee.
Amicus Curiae: (Steven Allen Forrest, on brief), for
appellant.
Sharon Hathaway Forrest (mother) appeals the decision of the
Circuit Court of Fairfax County (trial court) denying her motion
to transfer this matter to the Juvenile and Domestic Relations
District Court of the City of Norfolk and resolving other issues.
Mother was granted a divorce from Gregory Lawrence Ruhlin
(father) by the trial court in 1993. At the time this matter was
heard by the trial court, mother lived in Norfolk with her new
husband and had custody of the parties' six children.
Mother raises the following issues on appeal: (1) whether
the trial court had authority to order mother's new husband to
refrain from making derogatory comments about father; (2) whether
the trial court erred by denying mother an additional hearing;
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(3) whether the trial court's refusal to transfer this matter was
in the children's best interests; and (4) whether the trial court
was permitted by statute to prohibit derogatory statements. 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. Rule 5A:27.
On review, we consider the evidence in the
light most favorable to the party prevailing
in the trial court. Where the trial court's
decision is based upon an ore tenus hearing,
its determination will not be disturbed on
appeal unless it is plainly wrong or without
evidence in the record to support it.
Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28,
30 (1989).
I. Authority Over Mother's Husband
"'In Virginia, we have established the rule that the welfare
of the infant is the primary, paramount, and controlling
consideration of the court in all controversies between parents
over the custody of their minor children. All other matters are
subordinate.'" Verrocchio v. Verrocchio, 16 Va. App. 314, 318,
429 S.E.2d 482, 484 (1993) (citation omitted). Moreover, "[i]n
matters of a child's welfare, trial courts are vested with broad
discretion in making the decisions necessary to guard and to
foster a child's best interests." Farley v. Farley, 9 Va. App.
326, 328, 387 S.E.2d 794, 795 (1990).
We reject mother's contention that the trial court did not
have authority to require mother's husband to refrain from making
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derogatory comments about father in the presence of the children.
Mother's husband had testified as a witness, was present in
court, and was subject to the court's authority. There is no
question mother's husband had sufficient notice, as the trial
court spoke directly to mother's husband and ordered him to avoid
making any comments about father in the presence of the children.
See Rollins v. Commonwealth, 211 Va. 438, 441, 177 S.E.2d 639,
642 (1970). This is not an instance where due process requires
the joinder of a party, and Code § 8.01-7, relied upon by mother,
is not applicable.
In exercising its authority to promote the best interests of
the children, a trial court may impose restrictions which affect
non-parties. See, e.g., Carrico v. Blevins, 12 Va. App. 47,
49-51, 402 S.E.2d 235, 237 (1991) (mother who lived with her
boyfriend was barred from having overnight visitors of opposite
sex when son visited). Moreover, the trial court had authority
to review and modify custody of the children if mother and her
husband failed to comply with the court's order.
II. Additional Hearing
"After a court has concluded an evidentiary hearing, 'during
which each party had ample opportunity to present evidence, it
[is] within the court's discretion to refuse to take further
evidence on this subject.'" Holmes v. Holmes, 7 Va. App. 472,
480, 375 S.E.2d 387, 392 (1988) (citation omitted). Contrary to
mother's characterizations, we find no evidence that there were
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improper ex parte communications or that mother was prevented
from presenting evidence to the court. Mother received a copy of
father's letter to the court concerning the use of "respite
providers" to supervise father's visitation. Mother then filed a
memorandum in response to the proposed split fee arrangement.
The trial court had mother's arguments before it when it denied
mother's requested arrangement. We cannot say the trial court
abused its discretion when it entered the order without
conducting an additional hearing.
III. Denial of Transfer
Code § 20-79(c) allows, but does not require, the transfer
of a matter concerning the care and custody of minor children
from the circuit court to "any juvenile and domestic relations
district court within the Commonwealth that constitutes a more
appropriate forum." Transfer, therefore, is expressly left to
the discretion of the trial court. The trial court noted that it
was refusing to transfer the matter to the Juvenile and Domestic
Relations District Court of the City of Norfolk because "[t]he
case was tried here, and this Court has . . . been supervising
this matter since the beginning."
We cannot say the trial court abused its discretion by
retaining jurisdiction over a matter which had begun in the
Fairfax County courts and over which the trial judge had presided
for numerous hearings.
IV. Derogatory Statements
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Mother argues that the trial court erred when it ordered
mother to refrain from making derogatory statements about father,
because there was no evidence mother had made derogatory
statements. Mother also argues that the Virginia Code does not
authorize such a prohibition.
There was evidence to support the conclusion that mother had
made negative comments about father to the children. For
instance, while the eldest daughter testified that mother had
never said anything against father, the daughter also testified
that mother had said father was dangerous. Moreover, in
furtherance of the children's best interests, the trial court was
authorized to order mother to refrain from making derogatory
comments, regardless whether such comments had been made in the
past. Therefore, the trial court was acting within its statutory
and discretionary authority in ordering mother to refrain from
making derogatory comments about father in the presence of the
children.
Accordingly, the decision of the trial court is summarily
affirmed.
Affirmed.
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