COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Felton and McClanahan Argued at Alexandria, Virginia
MARK MERRITT, SR. AND JAYNE MERRITT MEMORANDUM OPINION* BY v. Record No. 2003-03-4 JUDGE WALTER S. FELTON, JR. SEPTEMBER 7, 2004 SANDRA-JOY GRAY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Dennis J. Smith, Judge
William B. Reichhardt (Colleen C. Sweeney; William B. Reichhardt & Associates, on briefs), for appellant.
Sandra L. Havrilak (Thomas P. Sotelo; The Havrilak Law Firm, P.C., on brief), for appellee.
Mark Merritt, Sr. and Jayne Merritt (parents) appeal the judgment of the trial court
denying their petition to modify a 1995 consent order governing visitation between their son
(child) and Sandra-Joy Gray, his maternal grandmother (grandmother). On appeal, the parents
contend that the trial court erred in finding that there had been no material change in
circumstances sufficient to warrant modification of the existing consent order; in failing to
require grandmother to make a showing that actual harm would occur to the child without
visitation with her; and that its denial of the petition for modification infringed on their
constitutionally protected liberty interests as fit parents to determine the best interests of their
child regarding his visitation with grandmother. For the following reasons, we affirm the
judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND
On appeal, we review the evidence in the light most favorable to grandmother, the
prevailing party below, granting to her all reasonable inferences fairly deducible therefrom. See
Bottoms v. Bottoms, 249 Va. 410, 414, 457 S.E.2d 102, 105 (1995). The parents are the
biological father and adoptive mother of the child, born in September 1991. The child’s
biological mother died in December 1992 after a prolonged illness. Father remarried, and his
new wife adopted the child in April 1994. Three additional children were born to father and the
child’s adoptive mother.
Grandmother was present at the child’s birth and spent significant time with him in the
first year of his life. Following the death of the child’s biological mother, father did not allow
grandmother to visit with the child for some eleven months. From November 1993 through
August 1994, father allowed grandmother to visit with the child on only two occasions, both of
which were structured and monitored. In August 1994, grandmother filed a petition seeking
visitation with her grandson. In January 1995, around the time father relocated with his family to
Nashville, Tennessee, the parties entered into an Agreed Order in the juvenile and domestic
relations district court incorporating their agreement that visitation of the child with grandmother
was in the child’s best interests. The court order fixed specific dates of visitation on two
designated weekends. It also provided for a period of continuous visitation for two designated
weeks. Additionally, grandmother was granted reasonable telephone visitation with the child.
The consent order provided that: “Although the last definite time for visitation is January 1996,
the parties shall do what is reasonable and necessary to continue a similar visitation schedule as
the circumstances dictate beyond January 1996.”
In March 1997 parents and child returned to Northern Virginia to reside. Grandmother
continuously resided in Northern Virginia during these proceedings. From 1995 until 2001,
-2- visitation continued between grandmother and child pursuant to the 1995 consent order without
any reported difficulties. In April 2001, parents sent a letter to grandmother stating that they
wanted more authority over visitation and desired to reduce the child’s visits with her. After that
event, the relationship of the parties went from cordial to “cool to almost hostile.”
In May 2001, father filed a petition to modify the 1995 consent order in the juvenile and
domestic relations district court. He asserted in his petition that material changes in
circumstances had occurred since the 1995 consent order was entered which warranted its
modification. The petition asserted “[a]t the time of the original order, [the child] was a toddler.
[The child] is now an active 9-year-old with various school and family obligations, friends,
summer camps and interests in other activities. The parties are experiencing difficulty with
scheduling mutually convenient times for visitation.” Father requested, “that he be able to
determine grandparent visitation consistent with his son’s best interests.” He specifically
requested that he be given the right to determine the visitation schedule.
On February 20, 2002, the juvenile and domestic relations district court denied father’s
petition, finding that the reasons given by father did not constitute a “material” change in
circumstances. Noting “that both parties agree that visitation by the grandmother is in the best
interests of the grandson and should continue,” the court then modified the 1995 consent order to
grant to grandmother twelve days of visitation per year, including “one extended period of up to
seven days.” It provided that “[t]he remaining time may be divided in any manner acceptable to
the parties.” Grandmother was again granted telephone visitation with child, and father was
“directed to do what is reasonable to facilitate such visits.” Father appealed the denial of his
petition to modify the 1995 order to the circuit court.
In July 2002, while the appeal was pending, grandmother filed a Motion to Enforce the
February 20, 2002 visitation order, asserting that father had failed to provide visitation as
-3- provided in the order, and seeking its enforcement. When grandmother’s motion to enforce was
filed, parents and the child were on their summer vacation out of state. On August 9, 2002, the
trial court entered a consent order establishing agreed dates for the extended visitation prior to
the start of school.1
In September 2002, father filed a Motion for Summary Judgment urging that the holdings
in Troxel v. Granville, 530 U.S. 57 (2000), and Williams v. Williams, 256 Va. 19, 501 S.E.2d
417 (1998), announced after the entry of the 1995 consent order, required the court to enter
summary judgment for father, granting to him exclusive authority to determine any visitation of
child with grandmother. In October 2002, the trial court denied the Motion for Summary
Judgment.
In January 2003, grandmother filed a Motion to Dismiss the Appeal or in the Alternative
that she be granted increased and liberal visitation, including one extended period from Friday
afternoon to Sunday afternoon each month; two (2) three (3) day long winter weekends from
Friday afternoon to Monday afternoon; and two consecutive weeks of uninterrupted visitation
over summer. In March 2003, grandmother filed an additional Motion to Enforce, asserting that
she had been allowed a total of only two days of visitation in 2003, and noting that father had
offered a shortened weekend visitation to which she did not agree and that father had not been
willing to set other visitation times. On March 14, 2003, the trial court entered a consent order
establishing a weekend visitation period for a designated Saturday morning to Sunday afternoon.
On March 14, 2003, the trial court denied grandmother’s Motion to Dismiss for Improper Joinder
and entered its order joining the child’s adoptive mother as a necessary party.
1 The entry of the consent order averted the necessity of parents and child to return to Virginia from their family vacation.
-4- On April 15, 2003, the trial court heard evidence ore tenus on the parents’ petition for
modification. The record reflects that the parents are caring and loving parents and
unquestionably fit. The child is described as a healthy, well-adjusted child, who exhibits no
behavioral problems and has not required any mental health counseling. His visits with his
grandmother are reported as being warm and enjoyed by the child.
On May 30, 2003,2 the trial court ruled that the parents had failed to prove that there had
been a material change in circumstances sufficient to warrant modification of the 1995 consent
order. The trial court found that the parties had continuously agreed that it was in the best
interests of the child to have visitation with his maternal grandmother, and that agreement was
included in each of the several consent orders establishing visitation. In his petition to modify
the 1995 consent order, father did not challenge that it was in the child’s best interests to visit
with his grandmother. On each occasion the court entered a consent order establishing specific
periods for visitation during the pendency of the appeal, it had not been asked to adjudicate if
visitation should take place, only when it would occur. The trial court noted that there had been
no interference by the court with the parents’ constitutionally protected liberty interest to
determine whether visitation was in the child’s best interest, as they had agreed that it was. It
found that because the child’s parents agreed that visitation was in the child’s best interests and it
found that there had been no material change in circumstances sufficient to modify the 1995
consent order, there was no requirement for it to determine whether actual harm would result to
the child if continued visitation with his grandmother did not occur. See, e.g., Troxel, 530 U.S.
at 65; Williams, 256 Va. at 21-22, 501 S.E.2d at 418.
The trial court noted that in the 1995 consent order father “waived” the right to raise the
child “without restriction,” albeit in a limited way and only as to the agreement to permit the
2 The court’s written order incorporating its decision was entered on July 11, 2003. -5- child to visit with his grandmother. It noted that the “waiver” could not be deemed to be
permanent, but could be reviewed in the appropriate circumstances. It also concluded that the
1995 consent order was not a temporary order expiring when the last established visitation period
was completed, but that it was a continuing order with visitation to be agreed by the parties, and
subject to modification by the court on a showing that a material change in circumstances had
occurred. See Code § 20-124.2(E). It declined to establish a future schedule of visitation,
having concluded that there had been no material change of circumstances sufficient to warrant
modification of the 1995 consent order, leaving to the parties the responsibility to schedule
visitation.
ANALYSIS
I.
The primary question before the trial court was whether the petitioners met the burden of
proving that there had been a material change of circumstances sufficient to warrant modification
of the 1995 consent order which established visitation of the child with his grandmother. Prior to
the court entering the Agreed Order in 1995, father agreed that it was in the child’s best interest
to have visitation with his maternal grandmother. Throughout these proceedings parents have
not contested that visitation of the child with his grandmother continues to be in his best
interests. The only dispute between the parties has been when the visitation should occur, not if
it should occur.
The record reflects that there has been an ongoing and significant strained relationship
between parents and grandmother, causing them to rely on the court to bring them together to
establish visitation periods. Each party blames the other for the inability to establish agreed
visitation times. Grandmother insists that parents refuse to set times for the visitation, often
-6- refuse to return her phone calls or to facilitate telephone conversations between the child and her
and that without her turning to the court to establish visitation, there would be none.
The parents contend that when the parties entered into the 1995 consent order, it was
premised on their working together to facilitate visitation. Parents argue that grandmother
refused to agree to mediation3 with a person selected by father to help resolve their difficulties in
establishing agreed periods of visitation. They also argue that when grandmother does not agree
with the periods of visitation they establish to accommodate the child’s increased activities and
his involvement with his siblings and the intact family’s activities, she insists on instituting legal
proceedings to meet her demands for different times thereby creating added tension to an already
strained relationship.
“The court, in the exercise of its sound discretion, may alter or change . . . the terms of
visitation when subsequent events render such action appropriate.” Eichelberger v. Eichelberger,
2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986)). The decision whether to modify an existing
visitation order, after taking evidence ore tenus, is entitled to great weight and will not be
disturbed unless plainly wrong or without evidence to support it. See Venable v. Venable, 2
Va. App. 178, 186, 342 S.E.2d 646, 651 (1986). We will reverse the judgment of the trial court
only upon a showing that the court abused that discretion. Farley v. Farley, 9 Va. App. 326,
327-28, 387 S.E.2d 794, 795 (1990).
A party seeking to modify a visitation consent order bears the burden of proving that a
material change of circumstances has occurred since the entry of the consent order and that a
change in visitation would be in the best interests of the child. See Code § 20-108; see also
3 See Code § 20-124.2(A), which provides in part: “mediation shall be used as an alternative to litigation where appropriate.” -7- Fariss v. Tsapel, 3 Va. App. 439, 442, 350 S.E.2d 670, 672 (1986) (citing Keel v. Keel, 225 Va.
606, 611-12, 303 S.E.2d 917, 921 (1983)); see also Ingram v.Knippers, 72 P.3d 17 (Okla. 2003)
(holding mother bore burden to show that a change in circumstances adversely affected the best
interest of the child and that welfare of the child would have been improved by modification of
the initial order). “Whether a change in circumstances exists is a factual finding that will not be
disturbed on appeal if the finding is supported by credible evidence.” Visikides v. Derr, 3
Va. App. 69, 70, 348 S.E.2d 40, 41 (1986) (citation omitted).
To show that a material change in circumstances had occurred, parents asserted that the
child, age four when the 1995 consent order was entered, was now twelve years old. They assert
that when the consent order was entered, the child was in Tennessee and grandmother was in
Northern Virginia and that the visitation was structured in blocks of time to accommodate that
distance. Parents testified that after the family had returned to Northern Virginia, grandmother
increased her demands for visitation. They assert that the child was involved in a growing list of
activities, thereby limiting the time he was able to spend with his maternal grandmother and that
he now has three siblings and four other grandparents who occupy increasing amounts of his
time as part of his intact family.
The trial court found that the time the child spent visiting with grandmother was not of a
degree to conflict with his increased activities. It noted that grandmother accommodated the
child’s increased activities when those scheduled activities occurred when the child visited her,
noting specifically that she took the child to his scheduled football practices, and accommodated
his scouting trips when they occurred during her visitation periods. The trial court also found
that the family’s return to Northern Virginia where grandmother resided did not make visitation
more difficult. While it concluded from the evidence that circumstances had changed since the
entry of the Agreed Order in 1995, it found that those changes were not “material changes in
-8- circumstances, which would warrant modification of the existing Court order.” We conclude
that the trial court did not err in finding that the changes in circumstances were not sufficient to
warrant modification of the 1995 Agreed Order governing visitation and that there is credible
evidence in the record to support its decision.
II.
The parents also argue that the trial court erred in not applying an “actual harm” analysis
required by Williams, 256 Va. 19, 501 S.E.2d 417, in determining whether continued visitation
with grandmother by child was in his best interest. In Williams, the Supreme Court held that a
court may not interfere in the parent-child relationship by ordering visitation with a non-parent
over the parent’s objection, absent a showing of “actual harm to the child’s health or welfare
without such visitation.” Id. at 22, 501 S.E.2d at 418 (involving court-ordered visitation for the
grandparents pursuant to Code § 20-124.2 over both parents’ objections) (citation omitted). The
trial court found that parents and grandmother had entered into an agreement, made part of the
1995 Agreed Order,4 resolving the matter of visitation with his grandmother to be in the child’s
“best interest.” There is no assertion by parents in this proceeding that continued visitation is not
in the child’s best interest. The record reflects that the child is well-adjusted, bright, and has a
loving and close relationship with his grandmother.
Because the trial court found that no material changes in circumstances had occurred to
warrant modifying the consent order, including that continuing visitation was in the best interests
of the child, it was not necessary for it to apply the “actual harm” test in determining whether to
modify the 1995 Agreed Order.
4 “A consent decree is a contract or agreement between the parties to the suit, entered of record in the cause with the consent of the court, and is binding unless secured by fraud or mistake.” Orlandi v. Orlandi, 23 Va. App. 21, 26, 473 S.E.2d 716, 719 (1996). -9- III.
The parents also argue that the trial court erred in ruling that they had permanently
“waived their constitutional rights” as a result of entering into the 1995 consent order. Parents
have a fundamental liberty interest to determine how to raise their children, and we presume that
fit parents act in their children’s best interest. Troxel, 530 U.S. at 65; Williams, 256 Va. at
21-22, 501 S.E.2d at 418. And a court may not interfere in the parent-child relationship by
ordering visitation with a non-parent over the parent’s objection absent a showing of “actual
harm to the child’s health or welfare without such visitation.” Williams, 256 Va. at 22, 501
S.E.2d at 418 (citation omitted). Here, the parents, unquestionably fit parents, entered into the
Agreed Order in March of 1995 that not only permitted visitation but also announced their
agreement that such visitation was in the best interests of their child. Troxel and Williams each
concerned parental objections to awarding initial visitation to a grandparent or non-parent. Here,
the parents never voiced opposition to visitation occurring.
We find no indication in the record that the trial court ruled that parents’ consent to the
entry of the 1995 Agreed Order, granting to grandmother limited visitation with the child,
divested them permanently of their constitutionally protected interests in the care and control of
their child. The trial court noted in its decision that, “upon an appropriate showing of
circumstances the presumption would be reinstated and, therefore, it would be in the parents’
right to make the unilateral and automatize [sic] decision with respect to the care, custody, and
control of the child.” See Wilson v. McGlinchey, 811 N.E.2d 526 (N.Y. May 13, 2004)
(terminating visitation of child with grandparents, initially permitted pursuant to consent order
between grandparents and parents, as not being in best interests of child where there was
increasing tension and hostility between the parties over visitation resulting from parents’ refusal
to agree to visitation and grandparents employing threats of further court action to “bully”
- 10 - parents into acceding to grandparents’ demand for visitation); see also Ingram, 72 P.3d at 22; In
re custody of C.M., 74 P.3d 342 (Colo. Ct. App. 2002).
The parents also assert that the 1995 consent order and the subsequent consent orders
denied them the right to determine the visitation schedule for their child. In Troxel, the United
States Supreme Court noted:
[I]n an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision [governing visitation] becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.
520 U.S. at 70 (emphasis added).
There is no showing in the record before us that the trial court failed to “accord at least
some special weight” to the parents’ determination of visitation periods when those decisions
were presented to it. As we noted above, parents voluntarily “waived” their parental rights to a
limited degree by asking the court to assist in the establishment of times of visitation when the
parties were unable to agree. As the trial court noted in announcing its decision from the bench,
the parents could not reduce the consent order to “a sham” by de facto refusing to agree to any
times for visitation.
Both the 1995 and the February 2002 orders provided flexibility to the parents in
scheduling visitation between the child and grandmother. The 1995 order required the parties
“to do that which is reasonable and necessary to continue a similar visitation schedule as the
circumstances dictate.” The February 2002 order did not provide specific dates or times when
the visitation was to occur. The consent order provided only for the number of days to be set
aside for visitation, twelve days out of a possible 365 days, and of those twelve days there was to
be one extended continuous visit for a period of seven days. The remaining time was to be
- 11 - allocated “in any manner acceptable to the parties.” Nothing in the language of the visitation
orders prevented the parents from determining the schedule for visitation consistent with the
child’s best interest. Moreover, the record does not reveal that grandmother unreasonably
impeded the parents’ efforts to schedule visitation or that the busy schedule of the active young
child was in any way impaired by the visits. In fact, grandmother accommodated the child’s
increased activity schedule when he was visiting with her.
CONCLUSION
We conclude from the record before us, that the trial court did not err in finding that the
parents failed to demonstrate a material change in circumstances sufficient to warrant
modification of the 1995 consent order; that the court was not required to apply an “actual harm”
analysis where the parents did not contest that it was in the child’s best interests to visit with his
grandmother; and that the trial court did not err in concluding that the parents waived their
constitutional rights to a limited degree when they entered into a consent order agreeing that their
child’s visitation with his grandmother was in his best interests. Accordingly, we affirm the
Affirmed.
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