Laura M Kane v. Robert W Szymczak, II

• Court: Court of Appeals of Virginia
• Decided: August 26, 2003
• Docket: 3168022
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Kelsey Argued at Alexandria, Virginia

LAURA M. KANE

v. Record No. 3168-02-2

ROBERT W. SZYMCZAK, II OPINION BY JUDGE D. ARTHUR KELSEY AUGUST 26, 2003 ROBERT W. SZYMCZAK, II

v. Record No. 3174-02-2

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge

Susanne L. Shilling (E. Ryan Meyer; Shilling & Associates; E. Ryan Meyer, P.L.L.C., on briefs), for Laura M. Kane.

John N. Clifford (Clifford & Duke, P.C., on briefs), for Robert W. Szymczak, II.

(Karen Minter Matthews, on brief), Guardian ad litem for infants Robert Szymczak, III and Brian Kane Szymczak.

Laura M. Kane appeals a chancellor's order transferring

custody of her two children to their father, Robert W. Szymczak,

Kane's former husband. On appeal, Kane has preserved only one

issue for consideration: whether the chancellor failed to

comply with Code § 20-124.3's requirement that the court

"communicate to the parties the basis for the decision either orally or in writing." Szymczak cross appeals, claiming that

the trial court erred by not awarding him attorney's fees and by

requiring him to pay the guardian ad litem fee in its entirety.

We find that the chancellor's letter opinion does not

satisfy Code § 20-124.3, and thus, we remand the case to the

trial court to comply with this statutory mandate. We also hold

that the chancellor did not abuse his discretion by refusing to

award Szymczak attorney's fees and by ordering Szymczak to pay

the guardian's fee.

I.

Kane and Szymczak are the divorced parents of two sons. In

October 1999, the Chesterfield Circuit Court granted Kane sole

custody of the boys. In April 2001, Szymczak petitioned for a

change of custody in Chesterfield Juvenile and Domestic Relations

District Court. The JDR court ordered joint legal custody with

physical custody to Szymczak. Kane appealed the JDR decision to

the Chesterfield Circuit Court in November 2001.

On July 26, 2002, the circuit court conducted an ore tenus

hearing and received testimony from Kane, Szymczak, and others.

In addition, the parties submitted thirty-nine de bene esse

depositions, numerous exhibits, and an extensive report from the

guardian ad litem. A month later, the chancellor issued a

written letter opinion. In it, the chancellor chastised both

parents for failing to "shift their priorities from

- 2 - self-interest to the interest of their children." The

chancellor also noted that Szymczak "had to be coerced" into

recognizing the "needs of the children." With this prodding,

the chancellor observed, Szymczak had "seen the light" in the

last couple of years. The court then concluded: "The Court has

considered all the dictates of § 20-124.3 of the 1950 Code of

Virginia (as amended). Further, the Court finds that there has

been a material change of circumstances that warrant the Court

considering a change in status."

On the best-interests issue, the chancellor's opinion

stated: "Based on all the factors that the Court must consider,

the Court has determined that sole legal and physical custody

should be granted to the defendant, Mr. Szymczak, with

visitation to Ms. Kane. The Court places particular emphasis on

§ 20-124.3(1), (2), (6) and (7)." The chancellor's letter

opinion, however, did not state the reasons why any of the

statutory factors (including the four of particular importance)

favored the requested change in custody.

II.

A.

In her brief on appeal, Kane lists eight questions

presented. The argument section of the brief, however,

addresses only questions one, two, and seven. Rule 5A:20

requires appellants to brief the "principles of law, the

- 3 - argument, and the authorities relating to each question

presented." Questions "unsupported by argument, authority, or

citations to the record do not merit appellate consideration."

Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239

(1992); see also Thomas v. Commonwealth, 38 Va. App. 319, 321

n.1, 563 S.E.2d 406, 407 n.1 (2002); Bennett v. Commonwealth, 35

Va. App. 442, 452, 546 S.E.2d 209, 213 (2001); Moses v.

Commonwealth, 27 Va. App. 293, 297 n.1, 498 S.E.2d 451, 453 n.1

(1998). As a result, Kane has waived appellate review of

questions three, four, five, six, and eight.

Questions one, two, and seven redundantly contend that the

chancellor violated Code § 20-124.3, which requires a trial

court deciding a custody and visitation case to "communicate to

the parties the basis for the decision either orally or in

writing." The chancellor, Kane asserts, inadequately informed

her of the basis for his decision. We agree.

Code § 20-124.3 lists various factors a trial court should

consider when deciding the "best interests" of the child in a

custody and visitation case. In its original form, the statute

did not expressly require the trial court to elaborate on its

findings or, for that matter, to provide any explanation for its

decision. In 1999, however, the General Assembly amended Code

§ 20-124.3 to direct the trial court to state the "basis for the

decision either orally or in writing." This statutory language

came verbatim from a recommendation by the Virginia Commission - 4 - on Youth in its 1999 Study on Joint Custody and Visitation. See

House Doc. 24, at 20-21 (1999). The study commission made the

recommendation after becoming "acutely aware that some judges

across the state may not be clearly or adequately articulating"

the reasons for child custody decisions. Id. at 20.

To determine what level of specificity this statutory

command requires, we turn to two settled principles of statutory

construction.

First, the "words of a statute should be given 'their

common, ordinary and accepted meaning' absent a contrary intent

by the legislature." Mouberry v. Commonwealth, 39 Va. App. 576,

583, 575 S.E.2d 567, 570 (2003) (quoting Germek v. Germek, 34

Va. App. 1, 8, 537 S.E.2d 596, 600 (2000)). Black's Law

Dictionary defines "basis" as a "fundamental principle; an

underlying condition." Black's Law Dictionary 145 (7th ed.

1999) (definition no. 1). Non-legal dictionaries offer a

similar denotation. A basis includes the "supporting element,"

"foundation," "chief component," or the "essential principle."

The American Heritage Dictionary 161 (2d col. ed. 1985). These

definitions do not imply a high level of specificity. Instead,

they focus on the fundamental or predominating reason or reasons

underlying the decision.

Second, we presume that the legislature "chose, with care,"

the specific words of the statute. Simon v. Forer, 265 Va. 483,

490, 578 S.E.2d 792, 796 (2003) (citation omitted); see also - 5 - Alger v. Commonwealth, 40 Va. App. 89, 92-93, 578 S.E.2d 51, 53

(2003). The act of choosing carefully some words necessarily

implies others are omitted with equal care. Here, the use of

the expression "basis for the decision" stands in contrast to

the better-known phrase "findings of fact and conclusions of

law." This expression has been used in many statutory contexts,

under both state 1 and federal 2 law. The latter phrase, unlike

the former, describes a comprehensive written or transcribed

narrative of all aspects of the decisionmaking process —— not

just the fundamental or predominating ones. See Interstate

1 Virginia requires "findings of fact" and "conclusions of law" in Code § 8.01-654 (circuit court decisions on petitions for writ of habeas corpus), § 10.1-1181.4 (final decisions of the water quality control board), § 10.1-1310 (final decisions of the air pollution control board), § 15.2-2314 (commissioner's report on review of a decision of a board of zoning appeals), § 18.2-308 (final order by circuit court refusing to reissue concealed weapon permit), and § 18.2-384 (decisions of a circuit court regarding the obscenity of a book). 2 See, e.g., Fed. R. Civ. P. 52(a) (requiring the trial court to "find the facts specially and state separately its conclusions of law"); see also 2 U.S.C. § 1405 (administrative and judicial dispute-resolution procedures involving congressional complaints); 5 U.S.C. § 580 (review of arbitration awards); 8 U.S.C. § 1421 (judicial review of naturalization decisions); 18 U.S.C. § 3509 (court's decision to grant a continuance in a case involving child victims and witnesses); 21 U.S.C. § 346(a) (final agency decisions regarding pesticide chemical residues under the Food, Drug and Cosmetic Act); 28 U.S.C. § 157 (decisions of bankruptcy judges in non-core proceedings); 28 U.S.C. § 1407 (district court panel decisions relating to multidistrict litigation); 28 U.S.C. § 2255 (decisions in certain habeas corpus proceedings); 28 U.S.C. § 2645 (civil decisions of the Court of International Trade); 42 U.S.C. § 3612 (decisions of administrative law judge regarding fair housing). - 6 - Circuit, Inc. v. United States, 304 U.S. 55, 56 (1938) ("A

discussion of portions of the evidence and the court's reasoning

in its opinion do not constitute the special and formal findings

by which it is the duty of the court appropriately and

specifically to determine all the issues which the case

presents.").

Guided by these principles, we hold that the 1999 amendment

to Code § 20-124.3 requires the trial court to identify the

fundamental, predominating reason or reasons underlying its

decision. This level of specificity does not require the

chancellor to address all aspects of the decisionmaking process,

as one would expect from comprehensive findings of fact and

conclusions of law. Nor does the 1999 amendment require the

chancellor "to quantify or elaborate exactly what weight or

consideration it has given to each of the statutory factors."

Sullivan v. Knick, 38 Va. App. 773, 783, 568 S.E.2d 430, 435

(2002) (citation omitted); see also Goodhand v. Kildoo, 37

Va. App. 591, 600, 560 S.E.2d 463, 467 (2002); Joynes v. Payne,

36 Va. App. 401, 416, 551 S.E.2d 10, 17 (2001).

That said, the statutory command cannot be satisfied by

formulaic and generalized explanations such as "I've considered

all the factors and I rule thus and such" or "the best-interest

test generally favors this or that party." It begs the question

to say that identifying the statutory factors (either altogether

or some subset of them) is the same as communicating the "basis" - 7 - for the decision. The statutory factors merely list topical

issues for consideration. They become reasons for a particular

decision only when one knows why the factors support the

decision. To satisfy Code § 20-124.3, therefore, the trial

court must provide a case-specific explanation (one that finds

its contextual meaning from the evidence before the court) of

the fundamental, predominating reason or reasons for the

decision.

In this case, the decision at issue involves changing a

prior custody order. "The test to be met 'has two prongs:

first, has there been a change in circumstances since the most

recent custody award; second, would a change in custody be in

the best interests of the children.'" Hughes v. Hughes, 33

Va. App. 160, 165, 531 S.E.2d 654, 656 (2000), aff'd en banc, 35

Va. App. 376, 545 S.E.2d 556 (2001) (quoting Keel v. Keel, 225

Va. 606, 611, 303 S.E.2d 917, 921 (1983)).

Because the chancellor did not announce his decision from

the bench, we look to his letter opinion. In it, he makes

general remarks about both parties and their mutual antagonism.

The only comment suggesting a change of circumstances involves

the observation that, despite Szymczak's earlier disinterested

attitude, he had "seen the light" in recent years. The

chancellor then concludes: "The Court has considered all the

dictates of § 20-124.3 of the 1950 Code of Virginia (as

amended). Further, the Court finds that there has been a - 8 - material change of circumstances that warrant[s] the Court

considering a change in status." On the best-interests issue,

the chancellor's opinion repeats that he had considered "all the

factors that the Court must consider" and gave "particular

emphasis" to several of them.

Except for the metaphorical language, which we find

insufficiently communicative, the chancellor's letter opinion

does little more than simply state his decision. No "basis" for

the decision —— in terms of a fundamental, predominating reason

or reasons for it —— was communicated to the parties. The mere

mention of the statutory factors, by itself, does not

communicate why the judge ruled as he did. And, for the same

reason the formulaic remark about considering "all the factors"

falls short, so too does the caveat about some of them being

particularly important.

Szymczak argues that parties could infer the judge's

underlying reasons for his decision from the guardian's report

or from counsel's closing arguments or some other contextual

source. But that observation, even if true, proves too much.

If the parties must infer the reasons, it is probably because

the judge did not communicate them directly. An unspoken and

unwritten inference —— no matter how strong —— cannot substitute

for what the statute requires: an express communication to the

parties of the basis for the decision.

- 9 - Consequently, we hold that the chancellor's letter opinion

fails to satisfy Code § 20-124.3's requirement that the trial

court "communicate to the parties the basis for the decision

either orally or in writing." We remand this matter to the

trial court with instructions to provide an explanation in

compliance with the statute.

B.

In his cross appeal, Szymczak claims the trial court erred by

not awarding him attorney's fees and by requiring him to pay the

guardian ad litem's entire fee. We disagree.

Whether to award attorney's fees "is a matter submitted to

the sound discretion of the trial court and is reviewable on

appeal only for an abuse of discretion." Northcutt v. Northcutt,

39 Va. App. 192, 199-200, 571 S.E.2d 912, 916 (2002) (quoting

Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987))

(internal quotation marks omitted). The decision to apportion

guardian fees between both parties or to one party alone also

involves a matter within the chancellor's discretion. See, e.g.,

Infant C. v. Boy Scouts of America, 239 Va. 572, 584, 391 S.E.2d

322, 329 (1990) (noting that a chancellor "may" allocate guardian

fees "based upon the final result"); Verrocchio v. Verrocchio, 16

Va. App. 314, 322, 429 S.E.2d 482, 487 (1993) ("Indivisible from

the power of appointment is the associated power equitably to

apportion the fees and expenses of the guardian ad litem as costs

- 10 - to the parties."). Because each case presents its own unique set

of equities, principles of appellate review steer clear of

inflexible rules and focus instead on "reasonableness under all

the circumstances." Joynes, 36 Va. App. at 429, 551 S.E.2d at 24.

In our opinion, the chancellor did not abuse his discretion

by denying Szymczak's request for attorney's fees. The record of

this case demonstrates a level of rancor and discord thankfully

rare in our courts. The legal fees alone tend to show this.

Szymczak spent over $90,000 at the trial court level; Kane's fees

exceeded $42,000. The record contains examples of sarcastic and

prolix briefs, speaking objections and coaching during

depositions, protracted procedural contests, and petty discovery

disputes. While Szymczak claims Kane bears all of the blame, we

cannot say the chancellor abused his discretion by finding that

both parties contributed to this regrettable state of affairs and

by ruling that neither party should be awarded attorney's fees.

We also find no abuse of discretion in the chancellor's

decision to assess the cost of the guardian ad litem's fee against

Szymczak. The guardian was appointed by the JDR court to

investigate Szymczak's allegations of changed circumstances and to

provide a recommendation on his request that custody of both boys

be transferred to him. After the guardian provided a favorable

recommendation to Szymczak in the JDR court, the chancellor

reappointed the guardian for the de novo circuit court appeal. In

his letter opinion, the chancellor observed that Kane had "worked - 11 - hard in the early years of child rearing with almost no support

from the father." The chancellor, however, found that Szymczak

changed his ways and demonstrated his fitness to receive full

custody. In making out his case, Szymczak relied on the

guardian's extensive investigation and report. Kane, on the other

hand, disputed the guardian's recommendations and claims on appeal

that the guardian took an adversarial role in the proceedings.

The issue before us is not whether we find that the equities

favor one or the other party, but whether the chancellor abused

his discretion in finding that the equities favored the imposition

of the guardian's fee on Szymczak. While the chancellor could

have divided the guardian's fees between the parties, Verrocchio,

16 Va. App. at 322, 429 S.E.2d at 487, he also had the discretion

not to. Under the circumstances of this case, we find no abuse of

that discretion.

III.

We hold that the chancellor's letter opinion fails to satisfy

Code § 20-124.3's requirement that the trial court "communicate"

to the parties the "basis of the decision." We remand this matter

to the trial court for compliance with this statutory mandate. We

find no abuse of discretion in the chancellor's denial of

- 12 - Szymczak's request for attorney's fees or his assessment of the

guardian's fees against Szymczak. 3

Affirmed in part and remanded.

3 We deny Szymczak's motion to dismiss Kane's appeal for allegedly violating Rule 5A:25, finding the assertion of prejudice insufficient to warrant such a remedy, but we nonetheless order Kane to reimburse Szymczak for the $2,035 advanced during the process of preparing the appellate appendix. See Rule 5A:25(f). We also grant Szymczak's motion seeking reimbursement from Kane of the $105 cost of including Dr. Sellman's transcript in the appendix. Id. We deny (i) Kane's and Szymczak's respective requests for attorney's fees on appeal, finding that neither party has demonstrated that the other's position on appeal is unreasonable under all the circumstances; (ii) Kane's motion to dismiss Szymczak's appeal pursuant to Rule 5A:8(b), finding her allegation of prejudice insufficient to warrant dismissal; (iii) Szymczak's requests for sanctions and attorney's fees under Code § 8.01-271.1, finding that he failed to demonstrate that Kane asserted an argument not "well grounded" in fact or law or for some "improper purpose," id.; and (iv) Kane's "Motion to Remand Support Case To The Circuit Court," on the ground that allegations of unresolved issues in a final appealable order, under the circumstances of this case, cannot be addressed by segmenting those issues for a partial remand. - 13 - Bumgardner, J., dissenting.

I dissent from the holding that the trial court failed to

communicate the basis of its decision. In the context in which

it was written to the attorneys of record, I find it complied

with the minimum demanded by Code § 20-124.3.

- 14 -