Elaine Anne Musser v. David Robert Musser

• Court: Court of Appeals of Virginia
• Decided: May 30, 1995
• Docket: 2389944
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Koontz, Bray and Senior Judge Hodges

ELAINE ANNE MUSSER

v. Record No. 2389-94-4 MEMORANDUM OPINION * PER CURIAM DAVID ROBERT MUSSER MAY 30, 1995

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY F. Bruce Bach, Judge (Gregory L. Murphy; Paul L. Mengel, III; Murphy, McGettigan, Richards & West, on brief), for appellant.

(Roy J. Baldwin; Anna Hamrick, on brief), for appellee.

Elaine Anne Musser (mother) appeals the decision of the

circuit court finding her guilty of contempt and deciding other

issues. Mother raises the following issues on appeal: (1)

whether, under the Uniform Child Custody Jurisdiction Act

(UCCJA), the Virginia trial court should have declined to

exercise jurisdiction; (2) whether the trial court lacked

jurisdiction because the matter had not been reinstated in the

circuit court; and (3) whether the trial court abused its

discretion in finding mother in contempt of court. 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.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Jurisdictional Challenges

Mother has not demonstrated error or an abuse of discretion

on the part of the trial court in exercising jurisdiction over

this matter. While mother and the children have lived in

California since 1986, Virginia was the home state of the

children at the start of the proceedings. David Robert Musser

(father) continues to be domiciled in Virginia. The Virginia

courts have ruled on visitation motions throughout the

intervening period. Therefore, the Virginia circuit court had 1 jurisdiction under the provisions of the UCCJA. Code

§ 20-126(A)(1)(i).

Under Code § 20-130, "[a] court which has jurisdiction . . .

may decline to exercise its jurisdiction . . . if it finds that

is an inconvenient forum . . . and that a court of another state

is a more appropriate forum." Code § 20-130(A). However, the

statute also provides that [b]efore determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.

Code § 20-130(D). "[B]efore the trial court should defer

jurisdiction to another forum, it should know the identity of

1 The Virginia codification of the UCCJA is found at Code §§ 20-125 through 20-146.

2 that forum." Mubarak v. Mubarak, 14 Va. App. 616, 622, 420

S.E.2d 225, 228 (1992).

The trial court indicated it was not opposed to considering

a motion to transfer jurisdiction to the California courts.

However, such a suggestion does not warrant the conclusion that

jurisdiction was not properly before the circuit court. While

the children's residence in California may merit a future

determination that Virginia is an inconvenient forum, we cannot

say the trial court abused its discretion in this instance by

refusing to make that determination prior to ruling on father's

rule to show cause for violations of existing court orders. Similarly, we find unpersuasive mother's contention that the

circuit court lacked concurrent jurisdiction with the district

court until father filed a motion to reinstate the matter in the

circuit court. A circuit court that transfers any matters to the juvenile and domestic relations district court pursuant to Code § 20-79(c) retains the power, in its discretion, to exercise its continuing jurisdiction over those matters. Statutes should not be construed in a manner that "would . . . enervate [and] impede . . . the administration of the . . . laws of the State."

Crabtree v. Crabtree, 17 Va. App. 81, 87, 435 S.E.2d 883, 887 (1993) (citation omitted, emphasis added). Therefore, the

transfer to the district court did not affect the retention of

jurisdiction by the circuit court.

Finding of Contempt

3 Mother asserts that the trial court erred by failing to rule

on her pending motion to reconsider. The written statement of

facts indicates, however, that the motion was "ostensibly denied

by the failure of the Court to rule on it." Mother also asserts

that the evidence was insufficient to support the trial court's

finding of contempt.

On appeal, we view the evidence and all reasonable

inferences in the light most favorable to father as the party

prevailing below. "Where, as here, the court hears the evidence

ore tenus, its finding is entitled to great weight and will not

be disturbed on appeal unless plainly wrong or without evidence

to support it." Martin v. Pittsylvania County Dep't of Social

Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). The trial

court, as the finder of fact, was entitled to determine "[t]he

weight which should be given to evidence and whether the

testimony of a witness is credible." Bridgeman v. Commonwealth,

3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).

Based upon the parties' testimony and supporting documents,

including affidavits by the parties' children, the trial court

found mother had refused to allow father to exercise his

previously-ordered visitation rights over the Thanksgiving and

Christmas holidays in 1993. We cannot say this determination was

plainly wrong or without evidence to support it.

Accordingly, the decision of the circuit court is summarily

affirmed.

4 Affirmed.