COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, Beales and Alston
Argued at Richmond, Virginia
COLLEEN BETH HIGGINS
MEMORANDUM OPINION BY
v. Record No. 1965-16-2 JUDGE ROSSIE D. ALSTON, JR.
NOVEMBER 28, 2017
LAURIE JOHN PEARCE
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L.A. Harris, Jr., Judge
Amanda Padula-Wilson (Parental Rights Law Center, on briefs),
for appellant.
(Laurie John Pearce, on brief), pro se.
Lauren A. Caudill (Jacobs, Caudill & Gill, on brief), Guardian ad
litem for the minor child.
Colleen Higgins (“appellant”) appeals the decision of the Circuit Court of Henrico
County (“trial court”), awarding sole physical and legal custody of the parties’ minor child to
Laurie Pearce (“appellee”), and argues that the trial court committed constitutional and
procedural error by denying her the right to a fair trial, requiring reversal and remand for a new
trial. We find that the trial court did not err and affirm.
BACKGROUND1
Z.H. is a minor child, parented jointly by the parties up until their separation in 2015. In
late 2015, custody and visitation proceedings began in the Juvenile and Domestic Relations
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
On appeal, appellant raises allegations of constitutional and procedural error in the trial
court, but does not assert that the trial court incorrectly considered the factors enumerated in
Code § 20-124.3. Thus, we include only the facts relevant to appellant’s assignments of error.
District Court of Henrico County (JDR court), and the parties agreed to a temporary custody and
visitation schedule pending an adjudicatory hearing. After the adjudicatory hearing, the JDR
court ordered joint legal custody between the parties but primary physical custody with appellee.
In February 2016, appellant appealed to the trial court. The parties initially set the case for a
one-day trial, a lengthier period of time than the hearing in the JDR court. In August 2016,
approximately one month before the trial date, appellant filed and argued a continuance motion,
requesting two days to present the case. The trial court stated that it would only approve a
continuance if both parties agreed to follow a temporary custody and visitation plan based on the
guardian ad litem’s (“GAL”) recommendations. The parties did not agree, and trial commenced
in September 2016, during which appellant repeatedly renewed her continuance request. During
the trial, the trial court frequently reminded the parties how much time each had remaining to
present its case. Both parties sought primary physical custody of the child. At the conclusion of
the parties’ evidence, the trial court awarded sole legal and physical custody to appellee. This
appeal followed.
ANALYSIS
I. Appellant Received a Full and Fair De Novo Trial
In appellant’s first assignment of error, she argues that the trial court erred by limiting her
time to present her evidence and by hampering her ability to cross-examine appellee, denying
appellant her constitutional due process right to a full and fair de novo trial. We disagree.
This issue presents purely legal questions of statutory and constitutional interpretation
that we review de novo. Copeland v. Todd, 282 Va. 183, 193, 715 S.E.2d 11, 16 (2011).
Appellant begins by stating the statutory standard by which the circuit courts entertain
appeals from the juvenile courts, but provides no specific allegation that the trial court
misapplied it here. Code § 16.1-296(A) states: “[f]rom any final order or judgment of the
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juvenile court affecting the rights or interests of any person coming within its jurisdiction, an
appeal may be taken to the circuit court within 10 days from the entry of a final judgment, order
or conviction and shall be heard de novo.”
Appellant relies on Andrews v. Flowers, 51 Va. App. 404, 413, 658 S.E.2d 355, 359
(2008) (quoting Fairfax Cty. Dep’t of Family Servs. v. D.N. and S.N., 29 Va. App. 400, 406, 512
S.E.2d 830, 832-33 (1999)), which states that “[a] de novo hearing means a trial anew, with the
burden of proof remaining upon the party with whom it rested in the juvenile court.” Here, the
record reflects that appellant received a new trial in the trial court, that all necessary parties were
present, and that evidence was presented in the trial court without any influence from the JDR
court. Notably, appellant did not direct the Court to anything within the record to purportedly
show that the trial was not de novo. Thus, appellant’s claim that the trial court did not properly
conduct a de novo trial under the statute is without merit.
Appellant next argues that she was denied her right to due process because the trial court
did not allow her sufficient time to present her evidence. The Fourteenth Amendment to the
United States Constitution provides that no state “shall . . . deprive any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1. “The relationship between
a parent and child is a constitutionally protected liberty interest under the Due Process Clause of
the Fourteenth Amendment.” L.F. v. Breit, 285 Va. 163, 182, 736 S.E.2d 711, 721 (2013)
(quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). The Supreme Court of Virginia has held
that “[a] day in court, an opportunity to be heard, is an integral part of due process of law,
everywhere recognized.” Moore v. Smith, 177 Va. 621, 626, 15 S.E.2d 48, 49 (1941). “Absent
clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal
with a presumption that the law was correctly applied to the facts.” Yarborough v.
Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977).
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In support of this claim, appellant cites numerous cases but relies primarily on Gregory v.
Martin, No. 0431-14-3, 2014 Va. App. LEXIS 312 (Va. Ct. App. Sept. 16, 2014). However,
Gregory is inapplicable because there, the trial court did not hear any evidence or make any
findings regarding the statutory requirements for an adoption. Id. at *10. Therefore, this Court
held that the mother’s due process rights were violated when the trial court denied her motion for
visitation. Id. at *10-11.
Here, in contrast, appellant called multiple witnesses and presented an abundance of
evidence to the trial court. Recognizing the principle of the presumption of regularity, we
assume that the trial court considered appellant’s evidence when rendering its custody and
visitation determination. The record also reflects that the trial court properly considered the
statutory factors in Code § 20-124.3 in reaching its decision. The trial court properly adjudicated
custody and visitation, and therefore, did not deprive appellant of her right to due process.
Finally, appellant argues that the trial court erred by denying her the right to
cross-examine appellee. Virginia has recognized a fundamental right to cross-examination on a
matter relevant to the litigation. Campbell v. Campbell, 49 Va. App. 498, 504, 642 S.E.2d 769,
772 (2007). Code § 8.01-401(A) provides that “[a] party called to testify for another, having an
adverse interest, may be examined by such other party according to the rules applicable to
cross-examination.” We are mindful that “the latitude permissible in cross-examination of
witnesses is largely within the sound discretion of the trial court.” Basham v. Terry, 199 Va.
817, 824, 102 S.E.2d 285, 290 (1958). “Yet cross-examination on a matter relevant to the
litigation and put in issue by an adversary’s witness during a judicial investigation is not a
privilege but an absolute right.” Id. (quoting 20 Michie’s Jurisprudence Witnesses § 36).
The trial court limited the amount of time each party had to present its case because the
parties themselves had set the trial for one day. Both parties were aware of the time constraints,
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and were repeatedly advised by the trial court to determine the best use of their time. While
appellant argues that she did not have sufficient time to thoroughly cross-examine appellee, the
record shows that the trial court gave her additional time beyond what she was originally
allotted. Appellant asserts that the trial court informed her that “it would be limiting
[appellant’s] cross-examination of [appellee’s] witnesses,” but that is not an accurate
representation of what occurred. Rather, the trial court frequently apprised appellant of her
overall time budget, stating, for example, “the way you use your time is certainly up to you. I’m
just trying to help you . . . [y]ou’ve got 15 minutes left . . . like every other decision we need to
make the decisions of what’s important or not.”
Appellant relies on Campbell v. Campbell, 49 Va. App. 498, 642 S.E.2d 769, for the
principle that the trial court improperly prohibited the presentation of her case. In Campbell,
however, the trial court had entirely prohibited the husband from cross-examining two material
witnesses due to the depletion of his allocated time. See id. at 505, 642 S.E.2d at 773. Because
those witnesses testified on material issues, the trial court had abused its discretion by not
allowing any cross-examination. Id. Here, the trial court provided appellant with substantial
latitude to cross-examine appellee, even though her allotted time had already expired. Appellant
correctly points out that the right to cross-examine witnesses on material issues is fundamental,
but that does not require trial courts to not require adherence to the schedule the parties agreed to
or completely defer to the litigants’ trial prerogatives, for that would nullify the authority and
responsibility of trial courts to facilitate and control their proceedings. See Basham, 199 Va. at
824, 102 S.E.2d at 290. The trial court in Campbell “abused its discretion by its arbitrary refusal
to allow any cross-examination whatsoever.” Campbell, 49 Va. App. at 505, 642 S.E.2d at 773
(emphasis added). That scenario is not present here.
Accordingly, the trial court did not violate appellant’s constitutional right to a fair trial.
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II. The Trial Court Did Not Violate Appellant’s Constitutional Rights as a Parent
In her second assignment of error, appellant argues that the trial court violated appellant’s
constitutional rights as a parent, relying on much of the same reasoning as in her first assignment
of error. We disagree.
Again, we are confronted with a question of constitutional interpretation that we review
de novo. Copeland, 282 Va. at 193, 715 S.E.2d at 16.
Appellant asserts that the trial court violated her right to due process by granting sole
legal and physical custody to appellee because it removed appellant’s right to parent her
children. We recognize that the relationship between a parent and child is a constitutionally
protected liberty interest under the Due Process Clause of the Fourteenth Amendment. See
Troxel, 530 U.S. at 65 (citing Prince v. Massachusetts, 321 U.S. 158 (1944); Pierce v. Society of
Sisters, 268 U.S. 510, 534-45 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). However,
“[i]n matters of custody, visitation, and related child care issues, the court’s paramount concern
is always the best interests of the child.” Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d
794, 795 (1990).
Appellant cites to Stanley v. Illinois, 405 U.S. 645 (1972), wherein the Supreme Court of
the United States wrote:
[t]he State’s interest in caring for Stanley’s children is de minimis if
Stanley is shown to be a fit father. It insists on presuming rather than
proving Stanley’s unfitness solely because it is more convenient to
presume than to prove. Under the Due Process Clause that advantage is
insufficient to justify refusing a father a hearing when the issue at stake
is the dismemberment of his family.
Id. at 657-58. However, Stanley is inapplicable because it involved an unwed biological father
who was never accorded legal-parent status under state law. Id. at 649. In contrast, Virginia law
has made appellant a legal parent, this proceeding in no way removed that status from her, and
the trial court afforded her a hearing on the question of whether she would have physical custody
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or visitation. The trial court determined that legal and physical custody should be granted to
appellee pursuant to the factors within Code § 20-124.3. In her brief, appellant repeatedly states
that her parental rights were terminated, however, no Code § 16.1-283 hearing occurred in either
the JDR court or the trial court, so the trial court never considered that disposition. This was a
custody and visitation dispute between parents in which appellant was awarded specific
visitation rights, thus allowing her to spend time with her child, a result that would not occur in a
termination proceeding. The trial court correctly focused on the best interests of the minor child
in rendering its decision, and did not violate appellant’s due process rights.
Appellant next argues that the trial court violated the Equal Protection Clause by
improperly determining custody based on the best interests of the child standard. The Fourteenth
Amendment of the United States Constitution provides, in pertinent part, that “no state shall
make or enforce any law which shall . . . deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1. “Absent clear evidence to the contrary in
the record, the judgment of a trial court comes to us on appeal with a presumption that the law
was correctly applied to the facts.” Yarborough, 217 Va. at 978, 234 S.E.2d at 291.
Appellant relies on Quilloin v. Walcott, 434 U.S. 246 (1978), in asserting that the trial
court violated her equal protection rights by awarding custody to appellee. Quilloin involved a
biological father who, like Peter Stanley, had been denied legal-parent status altogether. Id. at
249 (“the mother is the only recognized parent”). The Supreme Court of the United States
affirmed the denial of the father’s efforts. In dicta, the Court stated:
We have little doubt that the Due Process Clause would be
offended “[i]f a State were to attempt to force the breakup of a
natural family, over the objections of the parents and their children,
without some showing of unfitness and for the sole reason that to
do so was thought to be in the children’s best interest.”
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Id. at 255 (quoting Smith v. Organization of Foster Families, 431 U.S. 816, 862-63 (1977)
(Stewart, J., concurring in judgment)). Appellant relies on Quilloin’s reference to “the children’s
best interest” in attempting to analogize the standard applied in this case. However, Quilloin is
inapplicable because it concerned adoption, hence a permanent termination of parental rights.
When a trial court determines custody and visitation disputes between parents, it is axiomatic
that it must consider the best interests of the child. See Griffin v. Griffin, 41 Va. App. 77, 83,
581 S.E.2d 899, 902 (2003). Here, the trial court considered the best interests of this child and
determined that appellee should have full legal and physical custody.
Furthermore, we previously addressed this issue in Wiencko v. Takayama, 62 Va. App.
217, 228, 745 S.E.2d 168, 173 (2013), in which we held that a trial court did not violate the
Equal Protection Clause in granting custody of the children to the mother rather than to the
father. We noted that the trial court had carefully weighed the evidence and based its decision on
the individual facts of the case and the factors listed in the statute. Id. at 229, 745 S.E.2d at 174.
The same is true in this case, where the trial court reviewed the evidence and awarded custody to
appellee.
Appellant has not persuaded us that the trial court’s custody determination violated her
constitutional rights as a parent, either under the Due Process Clause or the Equal Protection
Clause. Therefore, we affirm the trial court’s ruling.
III. The Trial Court Did Not Abdicate Its Authority to the GAL
In her final assignment of error, appellant argues that the trial court erred when it denied
appellant’s continuance motion and that it abdicated its judicial authority to the GAL. We
disagree.
The decision to grant a motion for continuance is within the sound
discretion of the trial court and must be considered in view of the
circumstances unique to each case. The trial court’s ruling on a motion
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for continuance will be rejected on appeal only upon a showing of abuse
of discretion and resulting prejudice to the movant.
Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007).
The Virginia Supreme Court has established a two-pronged test for determining whether a trial
court’s denial of a continuance request is reversible error. See Lebedun v. Commonwealth, 27
Va. App. 697, 712-13, 501 S.E.2d 427, 434 (1998). We may reverse a trial court’s denial of a
continuance motion only if it appears from the record that: (1) the court abused its discretion and
(2) the movant was prejudiced by the court’s decision. Id.
The trial court thus possesses substantial discretion when considering whether to grant or
deny a continuance motion. See Haugen, 274 Va. at 34, 645 S.E.2d at 265. In this case, nothing
indicates that the trial court abused its discretion; it entertained argument by both parties and
determined that a continuance was not warranted. Appellant did not point to sufficient evidence
within the record showing that she was prejudiced by the trial court’s decision or that the trial
court acted unreasonably. Thus, the trial court’s denial of the continuance motion was not an
abuse of discretion.
Additionally, the record does not support appellant’s contention that the trial court
abdicated its judicial authority to the GAL. When the trial court heard argument on the
continuance motion, it stated that it would not grant a continuance unless both parties agreed to
follow the custody and visitation plan formulated by the GAL in the interim until trial. Trial
courts are expected to consider the recommendations of the GAL. See Bottoms v. Bottoms, 249
Va. 410, 420, 457 S.E.2d 102, 108 (1995).
Appellant posits that this case involves the same issues presented in Reilly v. Reilly, No.
1369-15-2, 2016 Va. App. LEXIS 343, at *15-17 (Va. Ct. App. Dec. 13, 2016), in which this
Court specifically condemned a trial court’s improper reliance on a GAL. In Reilly, the trial
court entered a custody order stating that “[s]upervision can be altered IN WRITING by the
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Guardian ad Litem based on Mother’s strict compliance with the conditions and other provisions
set forth in this Order.” Id. at *16. The Court recognized that this language allowed the GAL to
amend custody and visitation without any notice to the trial court and without a hearing or ruling
from the trial court. Id. at *16-17. There, the GAL possessed independent authority to gauge
whether or not the mother complied with the order. Id. Here, we are unable to find that the GAL
had the same independent authority to control custody and visitation as was the case in Reilly,
but even if it had, any error would have been harmless because the trial court rendered the final
custody and visitation adjudication at the conclusion of the de novo trial.
In her brief, appellant highlights the trial court’s characterization that visitation would
continue “as outlined by the [GAL].” Appellant asserts that this amounts “to allowing the [GAL]
to determine visitation.” We disagree. A trial court does not abdicate its authority by merely
ordering the parties to consider a GAL’s recommendations or plan. This case differs
significantly from Reilly because at no point did the trial court ever indicate, explicitly or
implicitly, that the GAL could unilaterally amend the conditions of custody and visitation based
solely on the GAL’s determination of compliance. The routine language utilized by the trial
court pending trial does not in any respect rise to the level of an abdication of judicial authority.
As such, the trial court did not err in denying the continuance motion or by requiring the
parties to comply with the GAL’s plan, pending the upcoming trial and the trial court’s decision
at trial on custody and visitation.
IV. Attorney’s Fees and Costs on Appeal
Both parties seek an award of attorney’s fees and costs on appeal. We deny both
requests.
The rationale for the appellate court being the proper forum to
determine the propriety of an award of attorney’s fees for efforts
expended on appeal is clear. The appellate court has the
opportunity to view the record in its entirety and determine
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whether the appeal is frivolous or whether other reasons exist for
requiring additional payment.
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Upon
consideration of the entire record on appeal, we find that neither party’s position was so
unreasonable as to entitle the other party to an award of attorney’s fees incurred in this appeal.
See Estate of Hackler v. Hackler, 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004) (“[W]e find
the litigation addressed appropriate and substantial issues and that [appellee did not] generate[]
unnecessary delay or expense in pursuit of [his] interests.”). We also decline to award either
party additional payment for preparation of this appeal. For these reasons, we deny both parties’
requests for an award of attorney’s fees and costs on appeal.
CONCLUSION
For the foregoing reasons, we are unpersuaded by appellant’s arguments and hold that the
trial court did not err. The trial court properly conducted a fair and de novo trial, and reasonably
acted within its discretion in electing to deny appellant’s continuance motion. Furthermore, the
trial court did not abdicate its judicial authority by requiring the parties to conform to the GAL’s
recommendations on custody and visitation. Accordingly, the judgment of the Circuit Court of
Henrico County is affirmed.
Affirmed.
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Colleen Beth Higgins v. Laurie John Pearce
Combined Opinion