Billy Dean Nance v. Valerie Limerick

• Court: Court of Appeals of Virginia
• Decided: October 23, 2001
• Docket: 0960012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Bumgardner and Senior Judge Hodges

BILLY DEAN NANCE MEMORANDUM OPINION * v. Record No. 0960-01-2 PER CURIAM OCTOBER 23, 2001 VALERIE LIMERICK

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG Richard J. Jamborsky, Judge Designate

(Jennifer M. Simmons; Law Offices of M. R. Reamy, on brief), for appellant. Appellant submitting on brief.

No brief for appellee.

Billy Dean Nance ("father") appeals from the decision of

the circuit court terminating his visitation rights with his

daughter. Father contends the trial court erred by admitting

evidence relating to events that occurred prior to the juvenile

and domestic relations district court ("juvenile court") order

allowing father visitation with his daughter. For the reasons

which follow, we affirm the decision of the trial court.

FACTS

"We review the evidence in the light most favorable to

[mother], the party prevailing below and grant all reasonable

inferences fairly deducible therefrom." Anderson v. Anderson,

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999). Ailyah Dawn

Nance was born to father and Valerie Limerick ("mother") on

March 13, 1995. On September 21, 1999, the juvenile court heard

evidence on father's motion to amend visitation. The court

granted father's motion and ordered one visit between father and

Ailyah every other month. Mother took Ailyah to visit father at

the correctional facility in which father is incarcerated. On

February 25, 2000, mother filed a motion to amend the earlier

visitation order, citing her daughter's nightmares following the

visit to the prison. The juvenile court granted mother's motion

and terminated father's visits. Father appealed, and the

circuit court heard the case on March 20, 2001. The parties

presented testimony relating to events that had occurred after

the September 21, 1999 order. Over father's objection, the

circuit court also heard evidence of father's abuse of mother

which had occurred in 1997. The circuit court likewise

terminated father's visitation.

ANALYSIS

Father contends that by hearing evidence of the 1997

domestic abuse, the circuit court relitigated issues that had

already been decided and ruled upon in the September 21, 1999

visitation order. Assuming without deciding that the trial

court erred in admitting the evidence, we find the error

harmless.

- 2 - "When it plainly appears from the record and the evidence given at trial that the parties have had a fair trial on the merits and substantial justice has been reached, no judgment shall be . . . reversed . . . [f]or any . . . error committed on the trial." Code § 8.01-678; see Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) ("Code § 8.01-678 applies to both civil and criminal cases."). "The burden is on the party who alleges reversible error to show that reversal is justified." D'Agnese v. D'Agnese, 22 Va. App. 147, 153, 468 S.E.2d 140, 143 (1996).

Stockdale v. Stockdale, 33 Va. App. 179, 185, 532 S.E.2d 332,

336 (2000).

"The trial court, in the interest of the children's

welfare, may modify visitation rights of a parent based upon a

change in circumstances." Fariss v. Tsapel, 3 Va. App. 439,

442, 350 S.E.2d 670, 672 (1986). "In making the determination

whether there has been a change in circumstances, the trial

court may admit testimony concerning any fact that tends to

establish the probability (or improbability) of a change in

circumstances." Id. In Fariss, the trial court admitted

evidence concerning Fariss' residence several months prior to

the initial visitation decree. We held that "[i]n the absence

of other evidence, [the] testimony regarding the conditions of

Fariss' residence prior to the entry of the initial visitation

decree was not germane to the decision whether to modify that

decree." Id. In this case, however, the court was presented

- 3 - with ample evidence separate from the 1997 abuse to support its

decision to terminate father's visitation.

Mother testified that when she took Ailyah to visit father

at the correctional center, she and father argued. When Ailyah

began to cry, father refused to allow her to go to mother and

stated, "See what your mother has done to me." Mother also

testified that shortly after the visit, Ailyah began having

nightmares. Mother took Ailyah to a therapist to help the girl

cope with the dreams. The trial court found that in light of

the changed circumstances, it was in the best interests of the

child to terminate father's visitation. Because the trial court

heard sufficient evidence of a change in circumstances to

support the termination of visitation, we find the admission of

the evidence of the prior domestic abuse harmless. Accordingly,

we affirm the decision of the trial court.

Affirmed.

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