Gregory Jude DeVeau v. Mutsumi Azemoto

• Court: Court of Appeals of Virginia
• Decided: October 2, 2001
• Docket: 0915014
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Senior Judge Overton

GREGORY JUDE DeVEAU MEMORANDUM OPINION * v. Record No. 0915-01-4 PER CURIAM OCTOBER 2, 2001 MUTSUMI AZEMOTO

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Jane Marum Roush, Judge

(Ted Kavrukov; Kavrukov & DiJoseph, LLP, on brief), for appellant.

(Timothy J. McGary, on brief), for appellee.

Gregory Jude DeVeau, father, appeals a decision of the trial

judge. On appeal, he argues the trial judge erred by: (1)

denying his motion to transfer jurisdiction of child custody and

visitation issues to Maryland; (2) denying a rule to show cause

finding Mutsumi Azemoto, mother, in contempt; and (3) removing the

requirement of the children's supervised visitation with mother.

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. See Rule 5A:27.

BACKGROUND

Father and mother were divorced by final decree entered in

the trial court on August 10, 1995. On May 1, 1995, the trial

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. judge entered an order awarding custody of the parties' two

children to father and reserving supervised visitation with

mother. Mother had attempted to abduct one of the children to

Japan.

On August 11, 2000, father filed a motion to transfer custody

and visitation issues to Annapolis, Maryland, where he had been

residing with the children. Mother opposed the motion, and she

filed a motion to modify visitation, requesting, among other

things, that the trial judge terminate the requirement that her

visitation with the children be supervised. Father also filed a

petition for a rule to show cause, contending that mother had

failed to pay court-ordered attorney's fees and that she had

failed to timely pay court-ordered child support.

The trial judge conducted a hearing on January 25, 2001

concerning all of the motions. On March 9, 2001, the trial judge

entered an order ruling on the issues. The trial judge lifted the

restriction of the children's supervised visitation with mother.

The trial judge also refused to find mother in contempt and denied

father's motion to transfer the case to Maryland. Father appeals

these rulings.

MOTION TO TRANSFER JURISDICTION

Under the former Uniform Child Custody Jurisdiction Act

(UCCJA), 1 "[a] court which has jurisdiction [to modify a decree]

1 On July 1, 2001, the legislature repealed the UCCJA and enacted the Uniform Child Custody Jurisdiction and Enforcement

- 2 - 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." Code § 20-130(A). We will reverse

a trial court's decision whether to exercise its jurisdiction only

upon a finding of abuse of discretion. See Johnson v. Johnson, 26

Va. App. 135, 147, 493 S.E.2d 668, 673 (1997).

Father has not demonstrated abuse of discretion on the part

of the trial judge in exercising jurisdiction over this matter.

Although father and the children have lived in Maryland since June

1998, Virginia was the home state of the children at the start of

the proceedings. In addition, mother continues to be domiciled in

Virginia. The Virginia courts have ruled on visitation matters

involving these parties since 1995. Indeed, in her ruling, the

trial judge commented that the file in this case is the biggest

file of any case in the Fairfax County Circuit Court.

Furthermore, the trial judge indicated that she lacked

authority to transfer the case to Maryland because there was no

pending matter concerning these parties in a Maryland court. In

addition, father's motion requested only that the case be

transferred to "Annapolis, Maryland" without further

identification of the appropriate court. "[B]efore the trial

court should defer jurisdiction to another forum, it should know

Act. Code §§ 20-146.1 through 20-146.38. This case involves the former UCCJA as it was in effect at the time of the proceeding.

- 3 - the identity of that forum." Mubarak v. Mubarak, 14 Va. App. 616,

622, 420 S.E.2d 225, 228 (1992). The trial judge further stated

that if "something" was filed in Maryland, then she would confer

with a Maryland judge about which state would be the most

appropriate forum. See Code § 20-130(D).

Moreover, information regarding the issues involved in this

matter, whether mother was in contempt of court and whether mother

should be allowed unsupervised visitation with the children, was

more readily available in Virginia, mother's residence. While the

children's residence in Maryland may merit a future determination

that Virginia is an inconvenient forum, we cannot say the trial

judge abused her 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 and on mother's motion for

unsupervised visitation. Therefore, the Virginia trial court had

jurisdiction under former Code § 20-126(A)(1)(i).

RULE TO SHOW CAUSE

By court order entered on June 28, 1995, mother was ordered

to pay father $47,837 for his attorney's fees. Mother did not pay

the attorney's fees. Father filed a petition for a rule to show

cause. On September 18, 2000, another trial judge of the Fairfax

County Circuit Court issued the rule to show cause. However,

prior to the hearing on the rule, the trial judge in this matter

ruled that because there had been a standing order in the case

that no motions in this case were to be docketed without her prior

- 4 - approval, the previous rule was set aside. The trial judge then

heard evidence concerning father's rule to show cause at the

January 25, 2001 hearing.

Father contends the trial judge erred in not proceeding on

the rule to show cause issued by the other trial judge. However,

a trial court has "inherent authority to administer cases on its

docket." Yarbrough v. Commonwealth, 258 Va. 347, 356, 519 S.E.2d

602, 605 (1999), aff'd, ___ Va. ___, ___ S.E.2d ___ (2001).

Because father's rule was heard by the trial judge who was

familiar with the case, we cannot say the trial judge erred in

hearing the evidence on the rule to show cause.

Evidence was presented that father discharged his attorney's

fees in bankruptcy proceedings. Moreover, mother presented

evidence that she had financial difficulties. The trial judge

ruled that mother's failure to pay father's attorney's fees was

not contemptuous.

"On appellate review of this issue, we may reverse the ruling

of the trial court only if we find that it abused its discretion.

A trial court may hold a[n] . . . obligor in contempt for failure

to pay where such failure is based on unwillingness, not

inability, to pay." Barnhill v. Brooks, 15 Va. App. 696, 704, 427

S.E.2d 209, 215 (1993). We cannot conclude, based on the evidence

in this record, that the trial judge abused her discretion.

- 5 - UNSUPERVISED VISITATION

A party seeking to modify an existing custody order bears the burden of proving that a change in circumstances has occurred since the last custody determination and that the circumstances warrant a change of custody to promote the children's best interests. In deciding whether to modify a custody order, the trial court's paramount concern must be the children's best interests. However, the trial court has broad discretion in determining what promotes the children's best interests.

Brown v. Brown, 30 Va. App. 532, 537-38, 518 S.E.2d 336, 338

(1999) (citations omitted).

The requirement of supervised visitation with mother was

imposed in June 1995. Thus, the requirement had been in effect

for almost six years. The trial judge found that since 1995, the

mother and the children had formed stronger ties to the community.

After mother attempted to abduct one of the children, the trial

court required mother to surrender her passport to the court.

Since that time, mother had twice retrieved her passport from the

court and traveled to Japan without incident. Upon her return

from Japan, mother then returned her passport to the trial court.

Mother is employed in the area and has improved her ability to

speak English.

Father presented testimony from Dr. Victor Elian that mother

still presented a flight risk. However, Dr. Elian admitted that

he had had no contact with mother since January 1996, and he met

with mother once in 1995. The trial judge specifically found that

- 6 - these factors called into question the weight she gave his opinion

testimony. "In determining the weight to be given the testimony

of an expert witness, the fact finder may consider the basis for

the expert's opinion." Street v. Street, 25 Va. App. 380, 387,

488 S.E.2d 665, 668-69 (1997) (en banc). The trial judge found

that mother presented no future risk for abducting the children.

The trial judge also indicated she accepted the testimony of

Dr. Verna M. Fields, a clinical and forensic psychologist, who had

had contact with mother about every ten days from 1995 until the

date of the hearing. Dr. Fields opined that mother presented no

flight risk because mother had established "roots" in Virginia and

had established herself in a professional career. Dr. Fields also

opined that it is detrimental to the children to have continued

supervised visitation with mother because it "sets up a very false

situation" and is a "barrier" to spontaneity between mother and

the children.

The trial judge further found that father had exhibited

"inappropriate" behavior in front of the children as a result of

the difficulties of the supervision requirement. In addition,

mother testified that the few unsupervised visits she had had with

the children were "more comfortable" and "free," resulting in more

conversation between her and the children.

The trial judge ruled that the supervision requirement had

"been the source of ongoing difficulties between the parties" and

had proved to be "very cumbersome, very expensive," and, after six

- 7 - years, "detrimental to the children." The trial judge ordered

that the visitation schedule would remain unchanged, but the

requirement for supervision would be lifted for a period of six

months. After that time, the parties would return for a "status

review" to determine if changes are necessary. Based on this

record, we cannot say that the trial judge abused her discretion

in this ruling.

Accordingly, the decision of the trial judge is summarily

affirmed.

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