Johnson v. Johnson

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, * Judges Elder and Annunziata
Argued at Richmond, Virginia

ANNE FRANZEN JOHNSON
OPINION BY
v. Record No. 2200-96-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 9, 1997
THOMAS ARTHUR JOHNSON

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Richard E. Crouch (John Crouch; Crouch &
Crouch, on briefs), for appellant.

James Ray Cottrell (Christopher W.
Schinstock; Gannon, Cottrell & Ward, P.C., on
brief), for appellee.

Anne F. Johnson (mother) appeals the trial court's decision

granting sole custody of Amanda Johnson (child) to Thomas A.

Johnson (father). Mother argues that the trial court erred in:

(1) finding that it had jurisdiction to modify its prior custody

order; (2) refusing to defer the exercise of jurisdiction over

the custody of Amanda to the Swedish courts; and (3) finding

mother in contempt. We hold that the trial court properly

exercised its jurisdiction and affirm.
I. BACKGROUND

Father is an attorney with the United States Department of

State, and mother is an attorney with the Swedish Ministry of

Foreign Affairs. The parents met in Switzerland and were married

*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
on December 6, 1986. Their only child was born in Switzerland on

November 11, 1987. In 1990, father was posted to Washington,

D.C. and moved to Virginia, and mother was posted to New York

City. The child split her time equally between her parents'

homes.

The parties separated on December 31, 1990. Mother first

filed for custody in New York City, but the parties agreed that

Virginia was the more appropriate forum. On February 8, 1991,

they signed a Settlement Agreement providing for joint custody

and giving the child essentially equal time with both parents.

The Circuit Court of the City of Alexandria (trial court)

incorporated this agreement into a final divorce decree dated

February 11, 1992. The terms of the custody agreement required

the child to spend two weeks with father and two weeks with

mother on an alternating basis. The trial court found that in

this "unique" situation, the child had a "fully established home

in both Virginia and in New York, with a separate set of friends,

social activities, schooling, church, and recreational activities

of the most comprehensive nature in both locations."
On June 16, 1993, father filed a petition and affidavit for

modification of the custody decree because of his concern that

mother was planning to relocate to Sweden with the child. Father

alleged that he had been advised "on competent authority by

Swedish counsel" that the only way a Virginia court could

maintain jurisdiction was to "provide for alternating but equal

2
time of no more than one school year, i.e. one year in Sweden and

one year in the United States, with the specific finding that the

Father's domicile will remain the habitual residence of the

child." (Emphasis added). Father requested the following:
That for the foregoing reasons, none of which
were contemplated at the time the last
custody decree was entered and which
constitute a substantial change in
circumstances, the best interests of the
child require that a modification decree be
entered by this Court providing, at a
minimum, that the parties alternate custodial
residences with the minor child from school
year to school year, with an equal division
of remaining time, and with appropriate
custodial visitation time while the child is
with each parent, and that a finding be made
that the Father's domicile shall be the
child's habitual residence regardless of time
which the child may be scheduled to spend
with her mother in Sweden.

On June 23, 1993, the trial court scheduled a hearing on the

merits. Pending that hearing, the trial court ordered that the

minor child's "habitual residence" was to be the residence of her

father in Virginia, and that it had continuing and exclusive

jurisdiction to decide all matters concerning the care and

custody of the child. The court also allowed mother to take the

child with her to Sweden until three days prior to the date set

for trial, but provided as follows:
That the failure of [mother] to return
to the Commonwealth of Virginia . . . with
the minor child . . . as required by the
terms of this Decree shall constitute
contempt of this Court Order and cause an
immediate vesting of sole custody of the
minor child of the parties in the Petitioner.

That [mother] is enjoined and prohibited

3
 from taking any action to change or modify
this Decree or to seek custody of the minor
child of the parties through the courts of
Sweden or any other jurisdiction except the
Circuit Court for the City of
Alexandria . . . .

Both parties and their respective counsel agreed to the terms of

the decree and endorsed the order with no objection.

At the ore tenus hearing on November 12, 1993, both parties

were represented by counsel. Claes Renstrom, a Swedish domestic

relations attorney, testified as an expert witness for father

regarding the enforceability of the parties' custody agreement by

a Swedish court. He testified that:
[t]he important thing regarding this whole
case from the Swedish point of view is the
question of whether [the child] will acquire
habitual residence, or domicile, which . . .
in . . . Swedish legal terms is called
hemvist (phonetic) in Sweden.

If she has that, and if she requires [sic]
this, and let's call it domicile, or habitual
residence, or whatever you like, . . . if she
acquires that, then it is possible for Mrs.
Johnson at every time to go to the Swedish
Court, and ask to have sole custody of the
child.

Following this hearing, the parties agreed to settle the issue of

custody and a final consent order was entered on December 28,

1993. This order modified the custody terms of the divorce
1
decree and outlined a new schedule for physical custody. The
1
Under the December 1993 modified custody agreement, the
parties were to share joint legal custody and physical custody
would alternate. Mother had physical custody from August 20,
1993 to August 19, 1995, and father's physical custody was
scheduled from August 20, 1995 to August 19, 1997. Each parent
was to have vacation visitation during the term of the other's

4
trial court also made the following findings:
[T]his Court hereby expressly finds that it
has continuing and exclusive jurisdiction to
decide all matters relating to the care and
custody of the minor child . . . ; and the
Petitioner's residence in the Commonwealth of
Virginia, United States of America, and not
Sweden, shall constitute the place of
residence for the purpose of all
adjudications of custody and visitation of
the said minor child; and, that the Courts of
Sweden as well as all other courts anyplace
in the world, shall not acquire jurisdiction
over the custody of the child by reason of
the Respondent's residence in the Country of
Sweden, . . . .
IT IS FURTHER ORDERED that neither party
shall seek modification of this Order without
prior leave of this Court and Notice to the
other party.

Mother made no objection to this order and agreed to its

provisions. Shortly thereafter, she relocated to Sweden and took

the child with her. Visitation proceeded on schedule until early

1995.

In January 1995, mother, contrary to the December 28, 1993

consent order, filed for custody in the Solna District Court of

Sweden. That court issued a "writ of summons" requiring father

to appear to "reply to the points of claim and other submissions

presented by" mother. Additionally, mother refused to cooperate

with father's upcoming Easter visitation.

On March 20, 1995, father filed in the trial court a "motion

physical custody. The agreement also set out child support
payments from father during mother's periods of physical custody
and visitation.

5
for order finding defendant in violation of custody decree and

wrongfully retaining child in violation of complainant's

custodial rights." Father alleged several violations of the

express terms of the December 1993 consent order, including the

fact that mother had instituted a court action in Sweden, that

she had attempted to invoke the jurisdiction of the Swedish court

over the custody issue, that she had refused all attempts by

father to schedule his weeks of physical custody of the child,

and that she had wrongfully retained the child.
On March 27, 1995, the trial court held a hearing on

father's motion. The hearing was continued "for the purpose of

giving [mother] the opportunity to explain her conduct, obtain

active representation of her interests, and inform the Court of

any relevant and pertinent information." Mother acknowledged

notice and requested another continuance because she could not

make travel arrangements or arrange for representation in such a

short time. On April 12, 1995, the court denied her request and

issued an order finding mother in violation of the express terms

of the December 1993 order and directing mother to relinquish

custody to father to compensate him for the time she had

wrongfully retained the child. 2
2
Two separate court systems in Sweden heard various claims
and appeals between January 1995 and May 1996. Mother first
filed for custody in Sweden in the Solna District Court on
January 25, 1995. That court dismissed her claim on April 5,
1995, holding that the child was domiciled in Virginia. Mother
appealed to the Regular Appeals Court (Svea Hovratt), which
reversed on September 7, 1995.
Father filed an application on March 14, 1995 for return of

6
 On May 9, 1996, the Swedish Supreme Administrative Court

(Regeringsratten) issued its decision finding that mother had not

illegally retained the child and that the child's "hemvist" was

in Sweden. 3 The court ruled that "[t]he requirements for

transfer of Amanda to the USA on the basis of the enforcement act

therefore do not exist. Anne Franzen Johnson's main request

should therefore be granted."

the child under the Hague Convention. Both parties attended a
hearing on the application in the County Administrative Court
(Lansratten), which found the child's domicile to be Virginia
and, on May 19, 1995, ordered her return. Mother appealed this
order to the Administrative Appeals Court (Kammaratten), which
reversed the order on June 19, 1995. Father filed a second
application with the Lansratten, which, on October 6, 1995, again
found that the child's domicile was Virginia and ordered her
return. Mother appealed to the Kammaratten, which, on December
19, 1995, found that the child's domicile was Virginia and
ordered the child's return scheduled for December 22, 1995. The
Supreme Administrative Court (Regeringsratten) issued a stay on
the return order on December 21, 1995, and reversed the return
order on May 9, 1996, on the ground that the child's domicile was
Sweden.
3
The court explained its interpretation of the term
"habitual residence" as follows:

The term "habitual residence," which
corresponds to "hemvist," is not defined in
the Hague Convention either. In general, it
may be said that consideration of the
question of habitual residence under the
Convention is primarily a matter of making an
overall assessment of circumstances which may
be observed objectively, such as the length
of sojourn, existing social ties and other
factors of a personal or occupational nature
which may indicate a more permanent
attachment to one country or the other. In
the case of a small child, the habitual
residence of person who has custody, and
other family and social aspects, must be the
decisive factors.

7
 In July 1996, father filed a "motion for order of sole

custody to be granted complainant together with other relief."

Additionally, he filed an affidavit and a "petition for issuance

of rule to show cause." On July 3, 1996, the trial court issued

a rule to show cause against mother for contempt of the court's

custody order. In August 1996, mother filed a "motion to dismiss

or defer" in the trial court. Father filed a response and a

cross-motion for sanctions against mother. After a hearing at

which mother was represented by counsel, the trial court found

mother to be "in willful, multiple, and continuing contempt of

this Court's orders of December 28, 1993 and April 12, 1995."

The court also directed mother to produce the child, ordered

mother to pay a fine and father's attorney fees and related

costs, terminated father's child support obligation, and granted

sole and exclusive custody to father. In addition, the court

reserved jurisdiction as necessary and enjoined mother from

proceeding any further in the courts of Sweden with any aspect of

visitation or custody.
II. STANDARD OF REVIEW

In its deliberation concerning a child's welfare, including

its determination of jurisdictional and enforcement issues, the

trial court must make the child's best interests its primary

concern. See Code § 20-124.2(B). See also Farley v. Farley, 9

Va. App. 326, 327-29, 387 S.E.2d 794, 795-96 (1990). "[T]rial

courts are vested with broad discretion in making the decisions

8
necessary to guard and to foster a child's best interests."

Farley, 9 Va. App. at 328, 387 S.E.2d at 795 (citing Eichelberger

v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986)).

"A trial court's determination of matters within its discretion

is reversible on appeal only for an abuse of that discretion."

Farley, 9 Va. App. at 328, 387 S.E.2d at 795 (citing M.E.D. v.

J.P.M., 3 Va. App. 391, 398, 350 S.E.2d 215, 220 (1986)). "[W]e

view the evidence and all reasonable inferences in the light most

favorable to the prevailing party below." Lutes v. Alexander, 14

Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992) (citation

omitted). "Where a trial court makes a determination which is

adequately supported by the record, the determination must be

affirmed." Farley, 9 Va. App. at 328, 387 S.E.2d at 796.

III. JURISDICTION

Mother first argues that the trial court did not have

jurisdiction to modify the December 1993 consent decree because

the child's connections to Virginia had dissipated. In the

alternative, she contends that the trial court erred in refusing

to defer jurisdiction to the Swedish court as a more convenient

forum, as the child's new home state, or as the site of a

legitimately pending litigation. We hold that the trial court

had continuing jurisdiction to enforce its own decree, and it did

not abuse its discretion when it refused to defer jurisdiction to

the Swedish court.
Continuing Jurisdiction

9
 A Virginia trial court has continuing jurisdiction over the

modification and enforcement of its decrees.
The court may, from time to time . . . revise
and alter [its] 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 intentional
withholding of visitation of a child from the
other parent without just cause may
constitute a material change of circumstances
justifying a change of custody in the
discretion of the court.

Code § 20-108. See also Orlandi v. Orlandi, 23 Va. App. 21, 26,

473 S.E.2d 716, 718 (1996). "The court shall have the continuing

authority and jurisdiction to make any additional orders

necessary to effectuate and enforce [custody and visitation

orders]." Code § 20-124.2.

In the instant case, the trial court's consent decree of

December 1993 set out a schedule for shared custody and several

other provisions, including an agreement that neither party would

initiate related proceedings elsewhere without the permission of

the trial court. Both parties agreed to be bound by these terms.

When mother filed for custody in Sweden in January 1995, the

Virginia trial court clearly had jurisdiction to consider this

violation and to enforce its ongoing decree.

Mother argues that the child's connections with Virginia

dissipated during the time she was in Sweden throughout 1994 and

thus rendered these provisions unenforceable. This argument

ignores the fact that the child was located in Sweden pursuant to

10
the Virginia trial court's custody schedule, which allocated

equal time to each of the parents. At no time did the child's

"residence," as agreed to by the parties, change. The mere fact

that mother received her scheduled time first under the order did

not invalidate the remainder of the agreed-upon schedule or the

other court-ordered provisions.

A party must obey an existing custody order until a

modification order supersedes it. "[T]he custody decree is

conclusive as to all issues of law and fact decided and as to the

custody determination made unless and until that determination is

modified pursuant to law." Code § 20-135. Here, mother, who had

consented to the custody order and schedule, denied father his

court-ordered visitation and refused to return the child to

Virginia, as the consent decree directed. These actions do not

support her contention that she has acted "in good faith and in

orderly fashion." Rather, they provide apt justification for the

trial court's enforcement of its decree. To hold otherwise would

allow any dissatisfied custody litigant to divest a court of its

inherent power to enforce a valid order by simply taking the

child to another jurisdiction. Such an outcome is not

contemplated by either historical analysis or statutory

authority.

Inconvenient Forum

Mother next contends that even if the trial court had

continuing jurisdiction to modify its existing custody decree, it

11
erred by failing to defer jurisdiction to Sweden as a more

convenient forum under Code § 20-130. Mother has not

demonstrated error or an abuse of discretion in the trial court's

exercise of jurisdiction over this matter.

The Uniform Child Custody Jurisdiction Act (UCCJA) is a

reflection of the public concern over the increasing numbers of

multi-jurisdictional custody battles. Although the UCCJA

explicitly applies to states and possessions of the United

States, Code § 20-125(10), "[t]he general policies of this

chapter extend to the international area." Code § 20-146. Of

particular concern is the frequency of child-snatching and

wrongful retention:
Often, the parent who loses the custody fight
is unwilling to accept the court's judgment.
The dissatisfied parents will remove the
child in an unguarded moment or fail to
return him after a visit and will seek their
luck in the court of a distant state where
they hope to find - and often do find - a
more sympathetic ear for their plea for
custody.

* * * * * * *

[T]he 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 . . . to discourage
continuing controversies over child custody;
to deter abductions and other unilateral
removals of children undertaken to obtain
custody awards; . . . 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.

12
Middleton v. Middleton, 227 Va. 82, 91, 93, 314 S.E.2d 362, 366,

367 (1984) (citation omitted) (emphasis added).

Under Code § 20-130(A), "[a] court which has jurisdiction

[to modify a decree] 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." We will

reverse the court's decision only upon a finding of abuse of

discretion. See Farley v. Farley, 9 Va. App. 326, 328, 387

S.E.2d 794, 795 (1990).
When conducting a forum non conveniens analysis, the court

shall consider if it is in the interest of the child that another

state assume jurisdiction. For this purpose, it may take into

account the following factors, among others:
1. If another state is or recently was the
child's home state;
2. If another state has a closer connection
with the child and his family or with the
child and one or more of the contestants;
3. If substantial evidence concerning the
child's present or future care, protection,
training, and personal relationships is more
readily available in another state; and
4. If the parties have agreed on another
forum which is no less appropriate.

Code § 20-130(C) (emphasis added).

Applying these factors, we find the trial court did not err

in refusing to decline jurisdiction under the facts of this case.

Virginia was and is the child's home state by agreement. Under

the consent decree, father's residence in Virginia was the

child's "place of residence for the purpose of all adjudications

13
of custody and visitation." The parties agreed to this place of

residence designation in anticipation of the child's stay in

Sweden. The child was to have equal time in both homes. But for

mother's wrongful retention, the child would have been returned

to Virginia. While the most recent evidence concerning the

child's care was in Sweden, pursuant to the terms of the December

1993 consent decree, the evidence concerning the child's future

care would develop in Virginia. Finally, and of equal

importance, the parties formally agreed that they intended that

"Virginia shall be the only forum for adjudication of custody

. . . matters."
Also relevant to the inquiry is the evidence in the record

that the Swedish court system differs significantly from our own

in matters of child custody. Father's expert testified that

Swedish courts do not grant joint custody and that "since there

is no statute in the Swedish law [requiring recognition of

foreign custody orders,] foreign custody decisions cannot in

principle have any effect in Sweden whatsoever." Additionally,

in the instant case the Swedish appellate courts have refused to

give comity to custody orders from the Virginia trial court. 4

This case differs from Middleton where the Supreme Court was "not

4
"[T]he legal basis for recognizing the law of another
country is the doctrine of comity . . . [which is] a rule of
voluntary consent . . . defined as a courtesy or a willingness to
grant a privilege, not as a matter of right but out of deference,
respect, and good will." In re S.M., 938 S.W.2d 910, 918-19
(Mo. App. 1997) (citations omitted).

14
reluctant to endorse an international deferral to the courts of

England because 'Virginia's jurisprudence is deeply rooted in

. . . the English system of justice.'" 227 Va. at 94, 314 S.E.2d

at 368 (quoting Oehl v. Oehl, 221 Va. 618, 623, 272 S.E.2d 441,

444 (1980)).

Additionally, we "cannot overlook the child snatching aspect

of the case." Middleton, 227 Va. at 95, 314 S.E.2d at 369.

Although mother had rightful custody in Sweden for a period of

time, her subsequent wrongful retention equates with child

snatching. Id. In Middleton, the father, in violation of a

visitation agreement, refused to return his children. Id. Here

mother violated a custody agreement by wrongfully retaining her

child after her period of physical custody concluded. In both

cases, the violating parent gained "a tactical advantage by his

conduct." Id. If we require the trial court to decline

jurisdiction, "it will tend to encourage such conduct in the

future, contrary to one of the principal purposes of the UCCJA."
Id. at 96, 314 S.E.2d at 369. Based on the factors enumerated

in the UCCJA and the trial court's clear continuing jurisdiction

to modify its initial consent decree, we cannot say that the

trial court abused its discretion in refusing to defer

jurisdiction to the Swedish court as a more convenient forum.

Mother also argues that the trial court should have deferred

jurisdiction because Sweden was the child's new home state. 5
5
Under the UCCJA, a child's home state is "the state in
which the child immediately preceding the time involved lived

15
Home state status is but one factor to consider in the forum non

conveniens analysis. It is not determinative. In light of

mother's agreement to designate Virginia as the proper forum for

adjudication of custody matters and for making the initial

determination of whether to defer, mother fails to establish an

abuse of discretion.

In the instant case, during the time immediately preceding

both the divorce decree and the consent decree of December 1993,

the child spent short periods alternatively with each parent,

resulting in an equal division of her time between Virginia and

New York. At that time, the child had no single home state under

the UCCJA definition. The trial court and the parties agreed

that Virginia would be the child's home state, or habitual

residence, for the purposes of all custody determinations, and

that the parties would seek leave of that court before initiating

custody proceedings elsewhere. This agreement became part of the

December 1993 consent decree, a court order endorsed by both

parties. Mother never objected to nor appealed either
6
provision.
with his parents, a parent, a person acting as parent, for at
least six consecutive months. . . . Periods of temporary absence
of any of the named persons are counted as part of the six-month
or other period." Code § 20-125.
6
Under the general law provisions governing venue and
inconvenient forum questions, and to which this issue may be
analogized, we note that party agreements have historically been
accorded great weight. See Code § 8.01-265. Venue can be
conferred by consent or waiver. See Lester v. Rose, 130 S.E.2d
80 (1963).

16
 We find unpersuasive her present contention that the child's

presence in Sweden throughout 1994 supports a determination that

Sweden has become the appropriate forum as the child's new "home

state." Virginia was the child's home state at the beginning of

the proceedings, and father continues to reside in Virginia.

Mother did not avail herself of the opportunity to appear before

the trial court to argue a change in circumstances justifying the

designation of an alternate home state. The original agreement

incorporated in the trial court's order contemplated that the

trial court would consider deferral after a hearing.

Consequently, mother is still bound by the trial court's

determination of habitual residence and the procedural

precondition to which she agreed. See Code § 20-130(C)(4). The

trial court did not abuse its discretion in recognizing Virginia

as the appropriate forum and refusing to defer to the Swedish

court. 7
7
The record contains multiple references to the Hague
Convention on the Civil Aspects of International Child Abduction.
The Hague Convention provides a forum for discussion and
resolution of issues surrounding international child abduction
and wrongful retention, and the United States and Sweden are both
signatories. Mother is the Swedish Ministry of Foreign Affairs
representative to the Hague Convention for these issues. She
argues that the Hague Convention does not apply in this case
because she did not wrongfully retain the child. Her government
has apparently adopted a supporting position: that a child's
custody may be litigated wherever the child resides. The United
States State Department has disagreed with this position on
policy grounds. The Hague Convention has not drafted a
controlling definition of habitual residence.
Resolution of this international disagreement is not
necessary to our present decision. Mother appeals the issue of
jurisdiction solely under the UCCJA, and we find Virginia law
sufficient to enable us to reach a conclusion on these grounds.

17
 Mother's final contention is that the trial court should

have deferred jurisdiction to Sweden because a new proceeding was

pending in Sweden. Code § 20-129 states that a court
shall not exercise its jurisdiction . . . if
at the time of filing the petition a
proceeding concerning the custody of the
child was pending in a court of another state
exercising jurisdiction substantially in
conformity with this chapter.

This contention is without merit. 8 The "priority in time" aspect

of the UCCJA rests within the Commonwealth while the ongoing

custody order remains in effect. Mother cannot circumvent the

law by simply filing a new petition in Sweden.
The Swedish court based its jurisdiction solely on the

child's presence in Sweden. However, by its very nature, the

trial court's order contemplated an ongoing custody arrangement,

and the "[p]hysical presence of the child, while desirable, is

not a prerequisite for jurisdiction to determine [her] custody."

Code § 20-126(C). The agreement had specific provisions

outlining the schedule for alternating physical custody, summer

and vacation visitation, travel arrangements, and schooling. The

child's presence in Sweden until January 25, 1995 was pursuant to

a valid Virginia order, and the child's continuing presence after

January 25, 1995 was the result of mother's wrongful retention of
8
This case is distinguishable from the situation in D'Agnese
v. D'Agnese, 22 Va. App. 147, 156, 468 S.E.2d 140, 144 (1996),
where the court found "that the Illinois court had obtained
emergency jurisdiction," because the mother took the children out
of state to protect them from abuse. There is no emergency
exception applicable here.

18
the child in defiance of the trial court's order. Wrongful

retention does not confer "jurisdiction substantially in

conformity with this chapter" and would not effectuate the

requirements of Code § 20-129. Moreover, since the Swedish court

refused to grant comity to the trial court's order, requiring the

trial court to defer jurisdiction would be unreasonable and would

undermine the purposes of the UCCJA. 9

IV. CONTEMPT
Mother also asserts that the trial court erred in finding

her in contempt and granting sole custody to father in August

1996. Mother argues that her actions did not rise to the level

of contempt because she did not abduct the child, but sought only

modification of the trial court's December 1993 order. She

contends that "[t]he fact that she violated an order of the

Circuit Court prohibiting her from doing this is hardly

9
Mother also argues that the trial court erred in finding
that she had waived her right to seek modification of the custody
agreement in a foreign court. Mother signed a consent decree in
which she agreed that "Virginia shall be the only forum for the
adjudication of custody or visitation matters . . . now or in the
future;" and "neither party shall seek modification of this Order
without prior leave of this Court." A consent decree "is a
contract or agreement between the parties to the suit . . . and
is binding unless secured by fraud or mistake." Orlandi v.
Orlandi, 23 Va. App. 21, 26, 473 S.E.2d 716, 719 (1996) (citation
omitted). Mother has not alleged either fraud or mistake in this
case. Consequently, she is bound by the provisions of the decree
which she dislikes, just as she was entitled to the benefit of
the provisions granting her child support payments and the first
term of physical custody. Under the decree, mother did not waive
her right to any modification in a foreign court; she merely
agreed she would not do what she did -- go to a Swedish court
without obtaining prior leave from the trial court.

19
controlling" and that an objective examination, "free from

clamorous invective and confusing onslaughts of character

assassination," supports her position. She further argues that

she should not be held in contempt for her failure to relinquish

custody or respond to the trial court's order to show cause

because she "could not come here without being liable to . . .

federal felony prosecution" and she "would be a victim of [the

Parental Kidnapping Prevention Act, 18 U.S.C. § 1204] the instant

she set foot on these shores." We find no merit in either claim.

The fact that mother chose to act in a manner that may give rise

to criminal charges does not shield her contumacious behavior. 10

The trial court's authority to enforce its consent decree

includes the ability "to punish as contempt of court any willful

failure of a party to comply with the provisions of the order."

Code § 20-124.2. "A trial court has the authority to hold an

offending party in contempt for acting in bad faith or for

willful disobedience of its order." Alexander v. Alexander, 12

Va. App. 691, 696, 406 S.E.2d 666, 669 (1991) (citation omitted).

"It is true that the inability of an alleged contemner, without
fault on [her] part, to render obedience to an order of court, is

a good defense to a charge of contempt." Laing v. Commonwealth,

10
The underlying policy of Virginia's felony parental
abduction statute, Code § 18.2-49.1, is similar to that of the
Parental Kidnapping Prevention Act, 28 U.S.C.A. § 1738A. See
Foster-Zahid v. Commonwealth, 23 Va. App. 430, 437, 477 S.E.2d
759, 762 (1996) (mother convicted of felony parental abduction
under Code § 18.2-49.1).

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205 Va. 511, 514, 137 S.E.2d 896, 899 (1964) (citations omitted)

(emphasis added). "But where an alleged contemner has

voluntarily and contumaciously brought on [her]self disability to

obey an order, [s]he cannot avail [her]self of a plea of

inability to obey as a defense to the charge of contempt." Id.

at 515, 137 S.E.2d at 899.

Mother has demonstrated a willful and continuing failure to

comply with the trial court's orders of December 1993 and April

1995, provisions she agreed to and used to her advantage.

Further, she continues to deny father contact and wrongfully

retains the child. If she disagreed with the procedural

precondition that she obtain leave of court before initiating

modification proceedings elsewhere, or disagreed with any other

terms of the December 1993 order, her available remedies included

refusing to sign the consent decree and appeal. Instead, she

used the agreement to remove the child from the United States.

Her refusal to comply with terms to which she agreed and her

disregard for the trial court's authority define contumacious

behavior.
Mother's contention that fear of a federal kidnapping

prosecution excuses her failure to appear and shields her from a

finding of contempt has no merit. Her own behavior placed her in

that position. Mother has disregarded the trial court's orders

of December 1993 and April 1995 and continues to do so. "When

one shows by [her] conduct a deliberate and studied effort to

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disobey a valid order of a court, [s]he subjects [her]self to

punishment for contempt." Laing, 205 Va. at 515, 137 S.E.2d at

899.

For the foregoing reasons, we affirm the trial court's

August 9, 1996 change of custody, finding of contempt, imposition

of fines, and award of father's costs and fees. Additionally, we

remand for an award of further costs and counsel fees incurred by

father in this appeal. See O'Loughlin v. O'Loughlin, 23 Va. App.

690, 479 S.E.2d 98 (1996).
Affirmed and remanded.

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