Parish v. Spaulding

513 S.E.2d 391, 257 Va. 357, 1999 Va. LEXIS 31
CourtSupreme Court of Virginia
DecidedFebruary 26, 1999
DocketRecord 980913
StatusPublished
Cited by40 cases

This text of 513 S.E.2d 391 (Parish v. Spaulding) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parish v. Spaulding, 513 S.E.2d 391, 257 Va. 357, 1999 Va. LEXIS 31 (Va. 1999).

Opinions

JUSTICE KEENAN

delivered the opinion of the Court.

In this appeal of an order adjudicating issues of child custody, visitation, and support, the primary question is whether the trial court employed proper procedures in determining the merits of a custodial parent’s move from Virginia to Indiana, which was made in violation of a court order.

The Circuit Court of Prince William County entered an order in December 1995 (the 1995 custody order), awarding sole custody of Keith Douglas Parish, Jr. and Samantha N. Parish (the children) to their mother, Mary Beth Spaulding. The children’s father, Keith D. Parish, Sr., was awarded visitation rights on alternate weekends, a portion of holidays and school vacations, and four weeks during the summer. At the time the 1995 custody order was entered, both the mother and the father resided in Virginia. The order required that a party intending to change residence give 30 days’ written notice of the intended change to the court and to the other party.

The father appealed the 1995 custody order to the Court of Appeals. In July 1996, while that appeal was pending, the mother appeared before the circuit court to request a change in visitation and permission to move the children to Indiana. The circuit court ruled that it did not have jurisdiction to hear the matter due to the appeal pending in the Court of Appeals. On the same day, the mother filed another document with the circuit court, giving notice of her intent to move in 30 days and providing two “probable” addresses and a telephone number in Indiana.

The Court of Appeals later denied the mother’s request to allow the trial court to adjudicate the issues involving her move while the appeal was pending. The mother made additional unsuccessful [360]*360attempts, in July and August 1996, to obtain a modification of the father’s visitation rights and permission to move the children to Indiana. Both the circuit court and the Prince William County Juvenile and Domestic Relations District Court (juvenile court) ruled that they lacked jurisdiction to hear the mother’s petitions because no emergency existed and the Court of Appeals had denied the mother’s request. On July 26, 1996, in response to the father’s request for an injunction, the juvenile court entered an order enjoining the mother “from removing the residence of the minor children of the parties from the boundaries of the Commonwealth of Virginia, until further order of the Court.” The mother did not appeal from this order.

Despite the order, the mother moved the children to Indiana in August 1996. The Court of Appeals ultimately affirmed the 1995 custody order in an unpublished opinion. Parish v. Spaulding, Record No. 0137-96-4 (November 19, 1996).

In January 1997, the circuit court held a two-day ore tenus hearing in response to the father’s motions to modify custody and visitation. Before the hearing, the circuit court denied the father’s motion to withdraw his appeal of a juvenile court order concerning child support and, on its own motion, consolidated that appeal with the pending motions concerning custody and visitation.

At the hearing, the mother testified that her move to Indiana was necessitated by financial difficulties that occurred when her present husband lost his job in Virginia and she was due to give birth to her fourth child. The mother stated that her husband’s family lived in Indiana and offered them assistance and rent-free housing. After the move to Indiana, her husband obtained employment as a warehouse manager for a furniture store where he was still employed at the time of the hearing. The children began attending school in Indiana at the start of the 1996-97 school year.

The father testified that he lives in Prince William County with his parents and is employed as a bartender and waiter at a local steakhouse. His sister’s family also lives nearby in Prince William County. The father asked the circuit court to grant him custody of the children.

The court found that there had been significant changes in circumstances since the 1995 order concerning custody and visitation. After evaluating each of the factors listed in Code § 20-124.3, the court determined that the mother should retain sole custody of the children. The court also ruled that the mother’s move to Indiana was in the best interests of the children. The court stated:

[361]*361First of all, the move to Indiana offered economic stability in the sense that [the mother] found herself in economic distress. It offered an opportunity to live in Indiana in a home that was rent-free, not unlike the same situation [the father] lives in here in Virginia. Number 2, it offers economic stability, in that the [mother] was in fact unemployed and the [mother’s] new husband lost his job in Virginia and needed to move to find full employment and so moved to Indiana. It offered some economic stability based on the fact that the [father] in this case was not paying child support as ordered by the Court. Number four, in terms of an educational opportunity, it offered the [mother] an opportunity, together with her new husband, for additional schooling. Number 5, in terms of educational opportunities for the children, the transfer of the children was made in the summertime so as not to interfere with the schooling of the children and did not, in fact, interfere with that schooling. Number 6, it offered some emotional stability to the children. [The new husband] was allowed to return and address the issues of visitation and child support that he had outstanding in Indiana. And that offered some stability to their family environment.

The court then modified the father’s visitation with the children based on the distance between the children’s new home in Indiana and the father’s home in Virginia. The court also ordered an increase in child support based on the father’s income and the needs of the children.

The father appealed the trial court’s order to the Court of Appeals, which affirmed the trial court’s judgment. Parish v. Spaulding, 26 Va. App. 566, 496 S.E.2d 91 (1998). This appeal followed.

The father argues on appeal that the Court of Appeals erred in affirming the trial court’s judgment, because the trial court failed to conduct a hearing as required by this Court’s holding in Carpenter v. Carpenter, 220 Va. 299, 257 S.E.2d 845 (1979). He contends that, as a result, he suffered a denial of due process.1 We disagree with the father’s argument.

We first observe that this assignment of error contests only the procedure employed by the trial court, rather than the substance [362]*362of the court’s determination.2 In the trial court, the father agreed that the court lacked jurisdiction to hold a hearing prior to the mother’s move because the custody order was under review by the Court of Appeals. See Greene v. Greene, 223 Va. 210, 212, 288 S.E.2d 447, 448 (1982). Since the father agreed with the trial court’s ruling on this issue, we will address only his argument that the trial court denied him due process in its conduct of the proceedings after the move had occurred.

In Gray v. Gray, 228 Va.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rebecca B. Hill v. John R. DeMott
Court of Appeals of Virginia, 2021
Guy R. Joubert v. Courtney R. Herbert
Court of Appeals of Virginia, 2020
Jung Sun Park v. Daniel Minkyo Chong
Court of Appeals of Virginia, 2019
Christopher T. Takacs v. Heather L. Takacs
Court of Appeals of Virginia, 2016
Sarah Caitlin Anderson v. Aaron Anderson
Court of Appeals of Virginia, 2013
Sherrie Morgan v. Renee Kifus and David Chowaniec
Court of Appeals of Virginia, 2011
Sharon Ruth Tucker v. John Harrison Clarke
Court of Appeals of Virginia, 2011
Timothy M. Barrett v. Valerie Jill Rhudy Barrett
Court of Appeals of Virginia, 2011
Jayne Herrel v. Timothy J. Herrel
Court of Appeals of Virginia, 2010
Gary D. McDougall v. Janet E. McDougall
Court of Appeals of Virginia, 2010
Jean Frances Krusell v. SaAd Abdulrazzak Al-Rayes
Court of Appeals of Virginia, 2009
Elizabeth A. Haring v. Michael J. Hackmer
Court of Appeals of Virginia, 2009
Douglas B. Harding, Jr. v. Sara K. Harding
Court of Appeals of Virginia, 2009
Judd v. Judd
673 S.E.2d 913 (Court of Appeals of Virginia, 2009)
Scott E. Zinn v. Michelle L. Zinn
Court of Appeals of Virginia, 2006
Philip Surles v. Kristan Mayer and Marty Cullen, Jr.
628 S.E.2d 563 (Court of Appeals of Virginia, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
513 S.E.2d 391, 257 Va. 357, 1999 Va. LEXIS 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parish-v-spaulding-va-1999.