Mary Carwley v. Harold Ford ( 2004 )

  •                              COURT OF APPEALS OF VIRGINIA
    Present: Judges Elder, Frank and Humphreys
    Argued at Richmond, Virginia
                                                                       OPINION BY
    v.     Record No. 2488-03-2                                 JUDGE ROBERT J. HUMPHREYS
                                                                        JUNE 8, 2004
                                  Melvin R. Hughes, Judge
                   Reginald M. Barley for appellant.
                   No brief or argument for appellee.
                   No brief or argument from the guardian ad litem for the minor
           Mary Crawley appeals a decision of the circuit court, awarding Harold Ford and his wife,
    Sonia Ford, legal and primary custody of Ford’s minor child. The circuit court entered its award
    based upon an alleged “agreement” between Crawley, the minor child’s maternal grandmother,
    and Ford. Crawley contends that the court erred in finding that she and Ford “reach[ed] [such]
    an agreement.” In the alternative, Crawley contends that the court erred in honoring the
    agreement, because it purportedly “violated the public policy regarding [the child’s mother’s]
    right to seek custody and visitation of her child.” Finally, Crawley argues that the court erred in
    awarding custody of the child to Ford because the court failed to find that a material change in
    circumstances had occurred since the previous custody order. Because we find that Crawley
    failed to provide an adequate record to enable us to consider her arguments on appeal, we affirm
    the judgment of the circuit court.
                                               I. Background
           On July 24, 1995, Crawley, Harold Ford and Tenielle A. Smith reached an agreement,
    after participating in court-ordered mediation, pertaining to the custody of Ford and Smith’s
    infant child. Specifically, the parties agreed that Smith and her mother (Crawley) would “have
    joint physical and joint legal custody” of the infant child, while Ford would retain the right to
    exercise “reasonable visitation” with the child. In 1999, upon Crawley’s own motion to amend
    custody, the juvenile and domestic relations (J&DR) district court granted Crawley full custody
    of the minor child.
           On February 8, 2002, Ford filed a motion with the J&DR court, requesting that custody
    of the child be “changed, amended and/or modified” to joint legal custody in Ford and Smith.
    Ford requested that a summons for the hearing on his motion be served upon both Crawley and
    Smith. After a hearing on the motion, the J&DR court ruled “custody is awarded to father and
    stepmother, Harold and Sonia Ford; reasonable visitation to maternal grandmother, Mary
    Crawley, as agreed to by parties.”
           Crawley subsequently filed a civil appeal notice, requesting a trial de novo in circuit
    court. The circuit court took evidence on the matter on November 7, 2002. The record contains
    no transcript of the proceeding, but does contain a written statement of facts in lieu thereof. The
    written statement of facts provides as follows, in pertinent part:
                   3. [Crawley] stated that [the child], age 7, had been residing with
                   her since she was brought home from the hospital in March, 1995.
                   Crawley testified that [the child] has been doing well in school.
                   Crawley presented the court with [the child’s] report cards, awards
                   and various certificates of achievement, including perfect
                   attendance and “spelling bees,” from George Mason Elementary
                   School. Crawley testified that [the child] was in Girl Scouts.
                   Crawley stated that [the child] was in good health. Crawley
                   testified that [the child] was doing well, happy with her and that it
                   was in the child’s best interest that [the child] remain with her.
                   Crawley stated that her health was good.
                   4. [Ford] stated that he was a police officer with the Richmond
                   Department of Police. Ford stated that he was married to Sonia
                   Ford. [Ford] stated that he and his wife were foster parents for
                   four (4) other children. [Ford] stated he thought that it was in [the
                   child’s] interest that he and his wife have custody of his child.
                   [Ford] stated that he did not want [the child] to have visitation with
                   [Crawley]. [Ford] stated that he disapproved of many of the
                   activities that [Crawley] . . . was teaching the child. Specifically,
                   [Ford] stated that he disapproved of his child learning to fish, make
                   cookies, sew, going to the mountains and skateland. [Ford]
                   presented to the Court an undated report, from the Broad Rock
                   Counseling & Training Associated [sic].
                   5. The court continued the trial in order to obtain a report from the
                   guardian ad litem of [the child].1
           The record next reflects that Crawley filed a motion with the circuit court, requesting that
    it reinstate the custody order of July 24, 1995. During the August 14, 2003 hearing on that
    motion, for which a transcript was prepared and included in the record on appeal, counsel for
    Crawley and Ford explained that the trial de novo had been reconvened on June 16, 2003, for
    purposes of hearing from the child’s guardian ad litem. During the June 16 proceeding,
    Crawley’s former counsel and Ford’s counsel informed the court that they had reached a “verbal
    resolution of [the] matter.” According to Ford’s counsel, Crawley’s former counsel advised the
    court that it was Crawley’s “desire to withdraw her appeal” and that an agreement had been
    reached “that involved visitation for [Crawley].” Ford’s counsel further proffered that the court
    then “questioned [Crawley] specifically and asked [Crawley] if that, in fact, was what she
    desired to do and [Crawley] responded in the affirmative.” After the child’s guardian ad litem
    indicated to the court that he agreed with the arrangement made between Crawley and Ford, the
              We note that Crawley’s current counsel prepared and filed the written statement of
    facts, attesting to the testimony presented during the November 7, 2002 hearing. Nevertheless,
    during the August 14, 2003 proceeding from which this appeal was taken, Crawley’s counsel
    acknowledged that he was not present during that proceeding, that no “record” was prepared for
    that proceeding, and that he did “not know what [the evidence] was.”
    court “said[, ‘][F]ine, you all prepare the Order and submit it to me.[’]”2 However, according to
    Ford’s counsel, Crawley’s former counsel contacted him a few days later and informed him that
    she was withdrawing as Crawley’s counsel because “Crawley no longer wanted to enter into the
    arrangement that [the parties] agreed upon” “in court.”
           Crawley’s new counsel argued the “representations that were made by [Crawley’s]
    former counsel were not things that she had consented to or agreed to. That she went beyond the
    scope of what she had authorized her to do.” Crawley’s counsel thus contended that there was
    no “meeting of the minds” and the parties were “at square one.”
           The circuit court responded as follows:
                   Well, the problem that I have is that the Court did take evidence in
                   this case. I heard evidence. I heard testimony from [Crawley],
                   [Ford] and perhaps [Ford’s] wife. And the case was continued in
                   order to provide an opportunity for input from the guardian who
                   was not present at that hearing.
                   When that hearing came forward or when that case was brought up
                   again, for the purpose of getting [the guardian ad litem’s] input, the
                   parties indicated that they had resolved their differences. That
                   resolution was – well, I don’t know that it was consistent with
                   what the Court would have done, but it was satisfactory because
                   the only thing left to be done at that point was to have [the
                   guardian ad litem’s] report with all of the parties present.
                   And, but for this agreement that they had, I would have heard from
                   [the guardian ad litem] and then decided the case based on the
                   evidence previously introduced. And that agreement that they
                   arrived at was consistent with the best interest of the child and [the
                   guardian ad litem] so reported and that was the end of the matter as
                   far as I’m concerned.
    Noting that “the parties ought [not] play fast and [loose] with the Court,” the circuit court
    determined that it would enter an order “consistent with the hearing on June 16th.”
              The guardian ad litem for the child advised the court that he too recalled the parties had
    reached a resolution of the matter, that he had indicated he was in favor of the agreement, and
    that the court had ordered the matter be disposed of accordingly.
           Crawley’s counsel signed the final order as “Seen and Objected To,” providing several
    grounds for her objections. This appeal followed.
                                               II. Analysis
           Crawley first contends on appeal that the circuit court erred in finding the parties reached
    an agreement concerning the custody of the child. Specifically, Crawley contends that she did
    not authorize her former counsel to enter into the agreement (under the terms stated) and that the
    terms of the agreement, as stated during the August 2003 hearing, varied from the terms of the
    final order. Thus, Crawley argues the circuit court erred in finding there was a “meeting of the
    minds” and “mutuality of assent” necessary to create an enforceable agreement.
           Crawley next contends that the circuit court erred in finding that the parties reached an
    agreement because the original agreement “illegal[ly]” purported to restrict Smith’s right to seek
    custody of her child. Although Crawley recognizes that the alleged “illegal” provision was not
    included in the court’s final order, Crawley contends the lack of that provision is further
    evidence that the parties failed to reach a valid agreement.
           Finally, Crawley contends that the circuit court erred in awarding custody to Ford,
    because the court failed to find that a material change of circumstance had occurred in order to
    support the change in the prior custody order. In particular, Crawley argues the circuit court
    “should have conducted a trial de novo of Ford and Smith’s petition for a change of custody.”
           Contrary to Crawley’s contention, we find that the limited record available here
    demonstrates that the circuit court did, indeed, conduct a trial de novo concerning Ford’s petition
    for custody.3 In fact, the court held at least two hearings in order to take evidence on the various
    petitions filed by both Ford and Crawley. Nevertheless, because counsel for the respective
    parties indicated to the circuit court that the parties had reached an agreement resolving the
    matter, the circuit court was never given the opportunity to reach the merits of the custody issue,
    beyond its determination that the purported agreement between the parties was in keeping with
    the best interests of the child.
            From this record, however, we are unable to determine whether the court erred in
    approving of the alleged agreement and/or in ultimately entering an order professing to be
    consistent with that agreement. Indeed, we are unable to reach the merits of any of Crawley’s
    remaining arguments because the record here contains no evidence relating to the alleged
    agreement. Without such evidence, we are unable to review the propriety of the circuit court’s
    factual determination that an agreement was in fact made and that it was made consistent with
    the terms reflected in the order. We are thus, likewise, unable to consider whether the alleged
    “original” terms of the agreement created an “illegal” or otherwise invalid arrangement.
            The appellate courts of this Commonwealth
                    [h]ave many times pointed out that on appeal the judgment of the
                    lower court is presumed to be correct and the burden is on the
                    appellant to present to us a sufficient record from which we can
                    determine whether the lower court has erred in the respect
                    complained of. If the appellant fails to do this, the judgment will
                    be affirmed.
    Justis v. Young, 
    202 Va. 631
    , 632, 
    119 S.E.2d 255
    , 256-57 (1961); see also Lawrence v. Nelson,
    200 Va. 597
    , 598-99, 
    106 S.E.2d 618
    , 620 (1959) (“An appellant who seeks the reversal of a
              Smith did not appeal the J&DR court’s award of custody to Ford and thus, was not a
    party to the initial proceedings in circuit court. For that reason, Smith was also not a party to the
    alleged agreement. Although Crawley raised this as an issue before the circuit court, Crawley
    does not raise Smith’s absence as an issue in her brief on appeal. We, thus, do not further
    address the issue.
    decree on the ground that it is contrary to the law and the evidence has the primary responsibility
    of presenting to this court, as a part of the printed record, the evidence introduced in the lower
    court, or so much thereof as is necessary and sufficient for us to give full consideration to the
    assignment of error.”); Twardy v. Twardy, 
    14 Va. App. 651
    , 658, 
    419 S.E.2d 848
    , 852 (1992).
           The record in this case consists of no evidence concerning the error complained of -
    namely, the circuit court’s determination that Crawley agreed to a resolution of that matter
    pursuant to the terms reflected in the court’s final order. There are no documents in the record
    purporting to reference the terms or circumstances of the alleged agreement. Further, the written
    statement of facts provided on appeal reflects only testimony that was given concerning the
    evidentiary aspects of Ford’s motion to amend custody. It contains no information concerning
    the alleged agreement.
           Finally, the sole transcript that appears in the record consists only of disputed proffers of
    counsel and statements made by the trial court pertaining to its memory of the proceedings
    during which the agreement was allegedly reached. Such proffers and statements do not
    constitute evidence from which this Court can make a determination as to whether the trial court
    erred in reaching its judgment.
           First, the statements at issue were not offers of proof – because the record does not reflect
    that the trial court refused the admission of the evidence at issue. See Whittaker v.
    217 Va. 966
    , 968, 
    234 S.E.2d 79
    , 81 (1977) (“[W]hen testimony is rejected
    before it is delivered, an appellate court has no basis for adjudication [of that issue] unless the
    record reflects a proper proffer.”). Even if they were, standing alone, these statements could not
    provide us with a sufficient record on appeal from which we could review the propriety of the
    circuit court’s factual determination. See id.; Lowery v. Commonwealth, 
    9 Va. App. 304
    , 308,
    387 S.E.2d 508
    , 510 (1990) (noting “the proffer [is] necessary only to provide a complete record
    for appeal” (emphasis added)).
           Moreover, these statements did not amount to stipulations, judicial admissions or even
    evidentiary admissions. See Lane v. Lane, 
    32 Va. App. 125
    , 129, 
    526 S.E.2d 773
    , 775 (2000)
    (“The Virginia Supreme Court has defined stipulation to mean ‘an agreement between counsel
    respecting business before a court.’” (quoting Burke v. Gale, 
    193 Va. 130
    , 137, 
    67 S.E.2d 917
    920 (1951)) (emphasis added)); Charles E. Friend, The Law of Evidence in Virginia, § 18-37, at
    839 (6th ed. 2003) (“‘Judicial admissions’ are concessions made by a party during the course of
    litigation which bind the party and prevent contrary evidence from being introduced.” (emphasis
    added)); Id. (“‘Evidential admissions,’ also called ‘extra-judicial admissions,’ are statements
    made outside the scope of the court proceedings. These are admissible in evidence, but are not
    binding or conclusive.” (emphasis added)).
           “A proffer is not evidence, ipso facto.” United States v. Reed, 
    114 F.3d 1067
    , 1070 (10th
    Cir. 1997). Without such evidence, or a proper record of the proceeding during which the
    agreement was made, this Court simply cannot conduct an examination of the circumstances in
    order to determine whether the trial court erred in its recollection and finding that Crawley
    consented to the agreement to resolve the case, pursuant to the terms stated in the court’s final
    order.4 Justis, 202 Va. at 632, 119 S.E.2d at 256-57.
           For these reasons, we affirm the judgment of the circuit court.
              We note that Crawley’s counsel accurately points out that the terms reflected in the
    order vary from those stated by Ford’s counsel during the August 14, 2003 proceeding.
    Nevertheless, because we have no evidence or record reflecting the actual terms of the original
    agreement, we find that we cannot review the propriety of the circuit court’s determination that
    the final order accurately reflected those terms.