Mary Louise O'Brien v. Robert John Riggins

• Court: Court of Appeals of Virginia
• Decided: December 12, 2000
• Docket: 2421994
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judge Annunziata, Senior Judges Duff and Hodges Argued at Alexandria, Virginia

MARY LOUISE O'BRIEN MEMORANDUM OPINION * BY v. Record No. 2421-99-4 JUDGE CHARLES H. DUFF DECEMBER 12, 2000 ROBERT JOHN RIGGINS

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Kathleen H. MacKay, Judge

Elizabeth D. Teare (Surovell, Jackson, Colten & Dugan, P.C., on briefs), for appellant.

Jerry M. Phillips (Phillips, Beckwith, Hall & Chase, on brief), for appellee.

Mary Louise O'Brien appeals the decision of the circuit court

finding her in civil contempt for relocating to Kansas with the

parties' children. O'Brien contends that the trial court erred in

finding (1) her guilty of civil contempt; and (2) that it had the

authority to order her to pay prospective transportation costs for

the visitation of the parties' children to their father, Robert

John Riggins. For the reasons stated below, we find that the

trial court abused its discretion in finding O'Brien guilty of

civil contempt.

The parties are familiar with the record in this case, and we

recite only those facts necessary to explain our decision.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. O'Brien and Riggins were divorced in 1991. By agreement of

the parties, as memorialized in the final decree of divorce,

O'Brien had physical custody of the parties' four minor children,

and Riggins had joint legal custody as well as liberal visitation

rights. The parties agreed that, in the event the parties were

unable to reach an agreement concerning the children's education

and religion, O'Brien was entitled to make the final decision.

O'Brien was originally from Kansas. Following a vacation to

Kansas and her mother's unexpected death in the summer of 1994,

O'Brien and her new husband decided to relocate from the

Washington, D.C., area to Kansas. The trial court found that

O'Brien did not discuss the pending move with Riggins, who found

out about the move through the parties' children less than a month

before the move occurred.

"Willful disobedience to any lawful . . . order of court is

contempt and . . . punishable as such." Board of Supervisors v.

Bazile, 195 Va. 739, 745, 80 S.E.2d 566, 571 (1954). "A trial

court 'has the authority to hold [an] offending party in contempt

for acting in bad faith or for willful disobedience of its

order.'" Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d

666, 669 (1991) (citation omitted). Whether to grant a motion for

contempt is a matter left to the discretion of the trial court

which will not be reversed on appeal in the absence of an abuse of

that discretion. See Wells v. Wells, 12 Va. App. 31, 36, 401

S.E.2d 891, 894 (1991).

- 2 - Code § 20-124.5, which requires the trial court to include in

its orders as a condition of custody or visitation "a requirement

that thirty days' advance written notice be given to the court and

the other party by any party intending to relocate and of any

intended change of address, unless the court, for good cause

shown, orders otherwise," was enacted in 1994, well after the

parties entered into their custody agreement and after entry of

their final decree of divorce. Nowhere in the parties' divorce

decree is there a requirement that the parties notify or seek

approval of the trial court or each other prior to any planned

relocation.

While the visitation schedule set out in the order would

obviously be unworkable following a move out of state, O'Brien did

not violate any express provision of the parties' final decree of

divorce by relocating to Kansas. Therefore, because there was no

willful disobedience of any existing decree for which a finding of

civil contempt was appropriate, the trial court abused its

discretion by finding O'Brien in contempt.

Our decision on the first issue renders moot O'Brien's

challenge to the court's authority to impose prospective

transportation costs as a remedy for the civil contempt. We

therefore decline to address that issue further.

Accordingly, the decision of the circuit court is reversed.

Reversed.

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