Tamara Silvius v. Steve Silvius ( 2005 )

  •                                 COURT OF APPEALS OF VIRGINIA
    Present: Judges Bumgardner, Clements and McClanahan
    Argued at Richmond, Virginia
                                                                  MEMORANDUM OPINION* BY
    v.      Record No. 1466-04-2                               JUDGE RUDOLPH BUMGARDNER, III
                                                                        JULY 26, 2005
                                   Horace A. Revercomb, III, Judge
                      (Tucker L. Henley; Blackburn, Conte, Schilling & Click, P.C., on
                      brief), for appellant. Appellant submitting on brief.
                      Mark A. Murphy (J. Bruce Strickland; Murphy & Strickland, on
                      brief), for appellee.
                      No brief or argument by Katherine B. Hancock, Guardian ad litem
                      for the infant children.
            Tamara Silvius asserts the trial court lacked jurisdiction to restrict her use of alcohol and
    tobacco during visitation with her two children. She also maintains the evidence was insufficient
    to justify the restrictions on visitation.
            In March 2000, the circuit court decreed joint custody with physical custody to the father.
    In May 2002, the mother moved for a change of custody and visitation. She appealed the
    juvenile and domestic relations district court decision. The circuit court fixed specific times and
    dates for visitation and continued earlier restrictions on the mother’s use of alcohol and tobacco
    during visitation. Specifically, it prohibited her from consuming alcohol twenty-four hours
    before visitation or permitting anyone to use alcohol in the presence of the children. It also
                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    prohibited her from smoking in the presence of the children or smoking in her residence during
              The trial court clearly had jurisdiction to hear this case. “Jurisdiction is ‘the power to
    adjudicate a case upon the merits and dispose of it as justice may require.’” In Re:
    Commonwealth’s Attorney, 
    265 Va. 313
    , 317, 
    576 S.E.2d 458
    , 461 (2003) (citations omitted).1
    The mother effectively concedes the trial court had jurisdiction by basing her argument on
    Eichelberger v. Eichelberger, 
    2 Va. App. 409
    345 S.E.2d 10
     (1986). Eichelberger accepted the
    circuit court’s statutory power to adjudicate visitation rights of a non-custodial parent. It held the
    exercise of that authority was a matter of judicial discretion and the welfare of the children was
    the paramount consideration. Id. at 412, 345 S.E.2d at 12. There is no merit in the assertion that
    the trial court lacked jurisdiction in this case.
              The record clearly supports the trial court’s exercise of its discretion by restricting the
    mother’s use of alcohol and tobacco during visitation. We view the evidence in the light most
    favorable to the prevailing party. Petry v. Petry, 
    41 Va. App. 782
    , 785-86, 
    589 S.E.2d 458
    , 460
              The mother drank alcohol around the children and permitted others to drink with the
    children present. She continuously violated an earlier court order forbidding her to smoke in
    front of the children. On one occasion the mother taped a plastic sheet between the front and
    back seats of her car so she could smoke while driving with the children. The father testified that
    her smoking endangered the health and welfare of the children. The guardian ad litem found the
    mother’s house filthy and cluttered with beer cans and bottles. Broken glass, jagged metal
             In this case, the mother invoked the jurisdiction of the trial court by initiating these
    proceedings to change previously decreed custody and visitation. In addition, the record does
    not reflect the mother ever presented the issues and arguments to the trial court. Rule 5A:18.
    scraps, and debris made entry dangerous. She reviewed the mother’s alcohol and smoking habits
    and concluded the previously ordered restrictions on alcohol and tobacco use were appropriate.2
           The trial court found the mother’s history and background of smoking and abusing
    alcohol constituted a harm to the health and well-being of her children. The evidence permitted
    that finding. Restricting that threat during visitation was a reasonable exercise of the authority to
    adjudicate the visitation rights of the mother. Accordingly, we affirm.
               The trial court also interviewed the children in camera.
    McClanahan, J., concurring.
           I concur with the decision to affirm the trial court, but on different grounds. Mother has
    not provided a record from which I can consider the merits of her arguments. Rule 5A:8(b)
    states, “When the appellant fails to ensure that the record contains transcripts or a written
    statement of facts necessary to permit resolution of appellate issues, any assignments of error
    affected by such omission shall not be considered.” See also Lawrence v. Nelson, 
    200 Va. 597
    106 S.E.2d 618
    , 620 (1959) (“An appellant who seeks the reversal of a 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).
           Mother has not met her burden to provide us with a record from which we can
    substantiate her claim of error. “In the absence thereof, we will not consider the point.” Jenkins
    v. Winchester Dep’t of Soc. Servs., 
    12 Va. App. 1178
    , 1185, 
    409 S.E.2d 16
    , 20 (1991) (citation
    omitted). Mother made no argument at this Court’s hearing. Mother did not file a transcript of
    the trial court proceedings, nor did she file a statement of facts. The Court has been provided
    only father’s objection to the statement of facts, which the trial judge signed as the statement of
    facts. At this Court’s hearing, even father’s counsel acknowledged that father’s objection to the
    statement of facts was an inadequate substitute for a statement of facts.3 Mother did not have the
    trial court’s in camera interview with the children recorded. In fact, she agreed to no recording
             “We may act only upon facts contained in the record.” Smith v. Commonwealth, 
    16 Va. App. 630
    , 635, 
    432 S.E.2d 2
    , 6 (1991) (citing Riddick v. Commonwealth, 
    135 Va. 724
    , 726,
    115 S.E. 523
    , 524 (1923)). “The importance of the record is obvious, for it is axiomatic that an
    appellate court’s review of the case is limited to the record on appeal.” Turner v.
    2 Va. App. 96
    , 99, 
    341 S.E.2d 400
    , 402 (1986).
    of the interview. 4 Without a transcript of the trial court’s in camera interview, we must also
    presume that the interview supported the trial court’s findings and conclusions. See Addison v.
    210 Va. 104
    , 111, 
    168 S.E.2d 281
    , 286 (1969) (citing Portewig v. Ryder, 
    208 Va. 791
    160 S.E.2d 789
    , 792 (1968)); see also Goodhand v. Kildoo, 
    37 Va. App. 591
    , 599, 
    560 S.E.2d 463
    , 466 (2002).5
           This Court has “‘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.’”
    Crawley v. Ford, 
    43 Va. App. 308
    , 315, 
    597 S.E.2d 264
    , 268 (2004) (quoting Justis v. Young,
    202 Va. 631
    , 632, 
    119 S.E.2d 255
    , 256-57 (1961)). “‘If the appellant fails to do this, the
    judgment will be affirmed.’” Id. I would, therefore, affirm the trial court based on the
    presumption that the trial court’s judgment is correct without a sufficient record to consider the
    alleged errors.
              Code § 20-124.2:1 provides, “In any proceeding in a court of record to determine
    custody or visitation, when the court conducts an in camera interview of a minor child whose
    custody or visitation is at issue without the presence of the parties or their counsel, a record of
    the interview shall be prepared, unless the parties otherwise agree.”
            See e.g., Waddell v. Waddell, 
    2004 Ala. Civ
    . App. LEXIS 726, *8 (Ala. Civ. App.
    2004); Reuter v. Neese, 
    586 So. 2d 232
    , 235 (Ala. Civ. App. 1991); Dreyer v. Smith, 
    592 S.E.2d 594
    , 596-97 (N.C. App. 2004); Turner v. Turner, 
    739 S.W.2d 779
    , 780 (Tenn. App. 1986).