Shari Sims-Bernard v. Stephen P. Bernard ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges O’Brien and Russell
Argued at Richmond, Virginia
UNPUBLISHED
SHARI SIMS-BERNARD
MEMORANDUM OPINION* BY
v. Record No. 0918-17-2 JUDGE MARY GRACE O’BRIEN
JANUARY 23, 2018
STEPHEN P. BERNARD
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Edward A. Robbins, Jr., Judge
Amanda Padula-Wilson (Parental Rights Law Center, on briefs), for appellant.
No brief or argument for appellee.
Jace M. Padden (DeFazio Bal PC, on brief), Guardian ad litem for
the infant children.
Shari Sims-Bernard (“mother”) appeals a decision denying her motion to amend custody
and visitation and awarding the guardian ad litem $11,010.85 in fees and expenses (“GAL fees”).
Finding no error, we affirm the judgment and remand for the limited purpose of awarding additional
GAL fees incurred with this appeal.
BACKGROUND
In October 2012, the Chesterfield County Circuit Court issued a final custody and visitation
order pertaining to the parties’ two daughters, born on July 17, 1998 and February 25, 2000. The
parties initially litigated these issues in connection with their divorce in 2010. The court awarded
Stephen P. Bernard (“father”) sole custody of the children and granted mother supervised visitation,
to be scheduled and monitored by the Chesterfield-Colonial Heights Department of Social Services
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(“DSS”). In its findings of fact, the court concluded that “[the mother’s] thinking and conduct as it
pertains to [father] and her daughters are not normal” and it “infer[red that mother] in fact continues
to suffer from some mental abnormalities.”
Mother appealed and asserted a number of errors, including the decision to allow DSS to set
the visitation parameters. In an unpublished opinion affirming the court’s ruling, we found that
mother waived this contention because she failed to present legal authority supporting her claim.
Sims-Bernard v. Bernard, No. 2090-12-2, 2013 Va. App. LEXIS 282, at *14-16 (Va. Ct. App. Oct.
8, 2013).
In October 2014, DSS closed the parties’ case. Mother filed a motion to amend custody and
visitation in August 2015.1 At an initial hearing on September 8, 2015, the court heard testimony
from mother’s treating psychologist and from the individual who supervised mother’s visitation.
The court then continued the hearing to November 20, 2015 and ordered an independent
psychological evaluation of mother pursuant to Code § 20-124.2(D).2
At the September 8 hearing, the court also appointed a guardian ad litem (“GAL”) for the
children, over mother’s objection. Upon his appointment, the GAL advised both parents that he
would charge an hourly rate of $275. Although the hearing was scheduled to continue on
November 20, the court removed the matter from the docket because the parties had a conflict over
the order naming a professional to conduct the independent psychological evaluation.
Instead, at mother’s request, the parties appeared before the court on November 18 to
address the issue of who should perform the independent evaluation. Mother’s counsel expressed
1
Judge Harold Burgess, Jr. entered the October 2012 final order. Judge Edward A.
Robbins, Jr. presided over the reinstated case in 2015.
2
This section provides that “[i]n any case in which custody or visitation of minor children is
at issue, whether in a circuit or district court, the court may order an independent mental health or
psychological evaluation to assist the court in its determination of the best interests of the child.”
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concern that counsel’s reputation for suing psychologists may negatively bias any court-appointed
evaluator. On January 27, 2016, after working with the parties to develop a list of potential
evaluators without a professional conflict, the court appointed Dr. Robert Archer to perform the
mental health evaluation, and ordered Dr. Edward Farber to substitute if necessary. Dr. Archer was
unavailable, and Dr. Farber declined because mother required that the evaluation be recorded.
On June 7, 2016, mother filed a motion to amend the order for a psychological evaluation.
She asserted that an evaluation she received from her own psychologist was sufficient. She also
contended that the delay in hearing her motion to amend custody and visitation violated her
constitutional due process rights. Upon review of the pleadings, the court denied mother’s motion
on July 20, 2016.
Mother filed another motion to amend on September 16, 2016. On October 7, 2016 the
court heard mother’s argument to forgo the court-ordered psychological evaluation or, in the
alternative, to appoint another evaluator. The court appointed Dr. Michelle Eabon to perform the
evaluation, who subsequently declined the appointment because of a dispute with mother over her
fee agreement.
Mother filed a third request to proceed to trial without an independent mental health
evaluation and a motion to certify an interlocutory appeal pursuant to Code § 8.01- 670.1.
Following a March 29, 2017 hearing, the court once again denied mother’s request to rescind the
order for an independent psychological evaluation. Additionally, the court declined to certify the
matter for an interlocutory appeal due to father’s lack of agreement that a review was in the parties’
best interest, as required by statute.3 At that hearing, mother elected to rest her case without
3
Code § 8.01-670.1 provides, in relevant part, that a party seeking interlocutory review must
obtain the circuit court’s certification that “the court and the parties agree it is in the parties’ best
interest to seek an interlocutory appeal.” (Emphasis added).
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presenting additional evidence, and the court denied her motion to amend custody and visitation of
her minor daughter.4
Subsequently, the GAL filed a bill for fees and expenses totaling $11,260.85. The court
reviewed the GAL’s seven-page itemization of his forty hours of work on the case. The court also
reviewed and considered mother’s motion and supporting memorandum to reduce the GAL fees.
The court denied mother’s request to hold a hearing regarding the GAL fees, because it “already
permitted all parties an opportunity to be heard on this issue via post-trial submissions and those
submissions were considered prior to the [c]ourt’s ruling.”
The court awarded $11,010.85 in GAL fees and ordered mother to pay $10,010.85. In
making its determination, the court found that mother’s “procedural contests, petty disputes and
prolix pleadings concerning [the psychological evaluation] issue together speak to a litigation course
premised upon something other than the timely resolution of the matters in dispute and the best
interests of [the] children.”
On appeal, mother asserts the following assignments of error:
1. The Circuit court erred when it denied Mother her
constitutional due process right to a prompt trial.
2. The Circuit court erred when it a) found that the Circuit
court’s October 16, 2012 order abdicating its duty to
determine custody and visitation was not void or void ab
initio, and therefore found that it did not have to amend its
order allowing third parties to determine Mother’s custody
and visitation and dismissed the petition to amend the order
allowing third parties to make custody and visitation
determinations.
3. The Circuit court erred when it refused to hold a hearing
regarding guardian ad litem fees and then awarded guardian
ad litem fees in excess of $158 when those fees a) are in
excess of what is mandated by Virginia Code §§16.1-267,
19.2-163 and the Virginia Supreme Court Chart of
4
The court had already dismissed mother’s motion to amend custody and visitation of the
older child in July, when the child turned eighteen.
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Allowances and/or b) are [an] unconstitutional undue burden
to Mother just to have her day in court in order to protect her
fundamental right to parent her children.
DISCUSSION
I. Mother’s Due Process Right to a Prompt Trial
Although mother concedes that the court had the authority and discretion to order an
independent psychological evaluation pursuant to Code § 20-124.2(D), she argues that her
constitutional due process right to a prompt trial was violated when the court required the evaluation
before addressing her motion to amend custody and visitation. Because mother’s contention
involves constitutional and statutory interpretation, it presents questions of law that we review de
novo. Copeland v. Todd, 282 Va. 183, 193, 715 S.E.2d 11, 16 (2011).
The Supreme Court has recognized that “the interest of parents in the care, custody, and
control of their children . . . is perhaps the oldest of the fundamental liberty interests.” Troxel v.
Granville, 530 U.S. 57, 65 (2000). However, ‘“in any child custody decision, the lodestar for the
court is the best interest of the child,’ . . . and the due process rights of the parents must be tempered
by this guiding principle.” Haase v. Haase, 20 Va. App. 671, 681, 460 S.E.2d 585, 589-90 (1995)
(quoting Smith v. Pond, 5 Va. App. 161, 163, 360 S.E.2d 885, 886 (1987)). In fact, although “the
legal rights of the parent should be respected in custody proceedings . . . [w]here the interest of the
child demands it, the rights of the father and mother may be disregarded.” Forbes v. Haney, 204
Va. 712, 716, 133 S.E.2d 533, 536 (1963).
Code § 20-124.2(D) expressly authorizes a court deciding custody or visitation to “order an
independent mental health or psychological evaluation to assist the court in its determination of the
best interests of the child.” Here, the court had reason, based on findings in the October 2012 order,
to require an independent evaluation of mother’s mental health before determining if a change of
custody or visitation was in the children’s best interests. Mother incorrectly asserts that her “due
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process constitutional right to a prompt adjudication was superior to the trial court’s rights to
appoint a mental [health] evaluator.” The children’s welfare, not the mother’s due process right to a
prompt trial, is the paramount concern in a motion to amend custody and visitation. Brown v.
Brown, 30 Va. App. 532, 538, 518 S.E.2d 336, 338 (1999) (“In deciding whether to modify a
custody order, the trial court’s paramount concern must be the children’s best interests.”). The
court’s broad discretion in determining the best interests of the children included ordering mother to
undergo an independent mental health evaluation pursuant to Code § 20-124.2(D). See also id.
(“[T]he trial court has broad discretion in determining what promotes the children’s best interests.”).
Further, “[d]ue process requires only that . . . the opportunity for a hearing must be provided,
not that the party must actually have a hearing on the merits.” D’Ambrosio v. D’Ambrosio, 45
Va. App. 323, 339, 610 S.E.2d 876, 884 (2005) (quoting Blinder, Robinson & Co. v. State Corp.
Comm’n, 227 Va. 24, 28, 313 S.E.2d 652, 654 (1984)). Here, mother had the opportunity for a
hearing and a ruling on her motion after she obtained the independent psychological evaluation.
She chose not to undergo an evaluation, and she rested her case on March 29, 2017. Accordingly,
she was not deprived of her due process right to a prompt trial.
II. Status of the October 2012 Order
Mother contends that the October 2012 order was void ab initio because the court abdicated
its judicial authority to determine visitation to DSS. To resolve this issue, we must first consider
whether an order that improperly delegates judicial authority to a third party renders that order void
ab initio or merely voidable. “An order void ab initio is ‘without effect from the moment it came
into existence’ . . . and can be attacked ‘by all persons, anywhere, at any time, or in any manner.’”
Winslow v. Commonwealth, 62 Va. App. 539, 544, 749 S.E.2d 563, 566 (2013) (first quoting
Kelley v. Stamos, 285 Va. 68, 75, 737 S.E.2d 218, 221-22 (2013), and then quoting Wright v.
Commonwealth, 52 Va. App. 690, 704, 667 S.E.2d 787, 794 (2008) (en banc)).
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The Supreme Court has ruled that “[t]he distinction between an action of the court that is
void ab initio rather than merely voidable is that the former involves the underlying authority of a
court to act on a matter whereas the latter involves actions taken by a court which are in error.”
Singh v. Mooney, 261 Va. 48, 51, 541 S.E.2d 549, 551 (2001).
An order is void ab initio if entered by a court in the absence of
jurisdiction of the subject matter or over the parties, if the character
of the order is such that the court had no power to render it, or if the
mode of procedure used by the court was one that the court could not
“lawfully adopt.”
Id. at 51-52, 541 S.E.2d at 551 (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73,
495 S.E.2d 825, 828 (1998)). “In contrast, an order is merely voidable if it contains reversible error
made by the trial court.” Id. at 52, 541 S.E.2d at 551.
Here, the court had the authority to rule on matters of custody and visitation pursuant to
Code § 20-124.2. If the court erred by allowing DSS to dictate the parameters of visitation, that
decision simply would have been reversible error. It did not render the order void ab initio. See,
e.g., Reilly v. Reilly, No. 1369-15-2, 2016 Va. App. LEXIS 343, at *16-17 (Va. Ct. App. Dec. 13,
2016) (holding “it was error for the circuit court to approve such language allowing a third party . . .
total discretion to decide mother’s visitation” (emphasis added)); Padula-Wilson v. Wilson, No.
1203-14-2, 2015 Va. App. LEXIS 123, at *38 (Va. Ct. App. Apr. 14, 2015) (finding “it was error
for the circuit court to order third parties to have complete discretion to decide the mother’s
visitation without providing for any judicial review of their decisions” (emphasis added)). In Reilly
and Padula-Wilson, both relied upon by mother, we did not rule that the courts’ orders were void ab
initio. Instead, we held that the visitation provisions of the order were made in error and subject to
reversal.
Because the visitation order from October 2012 was not void ab initio, the doctrine of res
judicata applies. Parrish v. Jessee, 250 Va. 514, 522, 464 S.E.2d 141, 146 (1995) (holding that as
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opposed to a void judgment, a voidable order is not subject to collateral attack). After the entry of
the final decree in 2012, mother appealed to this Court. We declined to consider her assignment of
error relating to the court’s delegation of authority to DSS because mother failed to present
sufficient authority for this Court to rule upon the merits of her argument. Sims-Bernard, 2013
Va. App. LEXIS 282, at *14-15. Accordingly, we affirmed the trial court’s ruling. Id.
“Res judicata is a judicially created doctrine founded upon the ‘considerations of public
policy which favor certainty in the establishment of legal relations [and] demand an end to
litigation.’” Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 617, 376 S.E.2d 787, 788
(1989) (quoting Bates v. Devers, 214 Va. 667, 670, 202 S.E.2d 917, 920 (1974)). The doctrine
precludes litigation “with the same person . . . of precisely the same question, particular controversy,
or issue which has been necessarily tried and finally determined, upon the merits, by a court of
competent jurisdiction.” United States v. Cal. Bridge & Constr. Co., 245 U.S. 337, 341 (1917).
Dismissal of a cause of action is a final judgment on the merits. Painter v. Commonwealth, 47
Va. App. 225, 237, 623 S.E.2d 408, 414 (2005).
Mother asserts the same argument that she previously raised against father before this Court
in 2013. She contends that the court erred by delegating its judicial authority to DSS in the October
2012 order. Accordingly, because mother attempts to re-litigate against the same party the precise
issue that this Court ruled upon in her first appeal, the doctrine of res judicata bars her claim.
III. Award of Guardian ad Litem Fees at Trial
Mother contends that the court erred by awarding GAL fees in excess of the statutory
amount for compensation of court-appointed counsel as set out in Code § 19.2-163 and the Supreme
Court’s Chart of Allowances referenced therein. Mother also asserts that the court’s award of
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$11,010.85 in GAL fees was unreasonable and that the court erred by failing to hold a hearing
before awarding the fees.5
A court has the authority to appoint a guardian ad litem “where the trial judge finds that the
best interests of the child are not adequately protected by the parties.” Verrocchio v. Verrocchio, 16
Va. App. 314, 322, 429 S.E.2d 482, 487 (1993). Additionally, “[i]ndivisible from the power of
appointment is the associated power equitably to apportion the fees and expenses of the guardian ad
litem as costs to the parties.” Id. The discretion to award and apportion GAL fees following a
divorce proceeding is consistent with the court’s statutory authority to make an “award of such costs
as equity and justice may require.” Id. (citing Code §§ 20-79(b) and former 20-99(5) (now codified
at Code § 20-99(6))).
We review the court’s decision to award GAL fees for an abuse of discretion. “[T]he key to
a proper award of counsel fees [is] reasonableness under all of the circumstances revealed by the
record.” McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). “[A]n award of
attorney’s fees is a matter submitted to the trial court’s sound discretion and is reviewable on appeal
only for an abuse of discretion.” Richardson v. Richardson, 30 Va. App. 341, 351, 516 S.E.2d 726,
731 (1999) (quoting Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987)).
Mother asserts that the court was limited to awarding the GAL $158 for his attorney’s fees.
She bases her contention on the provisions of Code §§ 16.1-267 and 19.2-163. However, as the
court correctly noted, “[these code sections] are inapplicable to GAL compensation in this case.”
Code § 16.1-267 grants authority to a juvenile and domestic relations district court to award
5
With regard to mother’s contention that she was denied a hearing on the GAL fees, mother
argues that the court’s consideration of the parties’ motions and relevant memoranda before
awarding fees was insufficient. However, mother fails to fully develop this argument in her brief, or
provide adequate authority to support it. “Statements unsupported by argument, authority, or
citations to the record do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App.
53, 56, 415 S.E.2d 237, 239 (1992). See also Rule 5A:20(e) (requiring that an appellant cite
relevant authority in support of an argument presented on appeal).
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guardian ad litem fees in cases originating in that court. The present action took place entirely in
circuit court, beginning with the 2010 divorce proceedings. Code § 19.2-163 also is inapplicable
because it pertains to the cap for compensation of court-appointed counsel in criminal cases.
Mother cites no other authority for her claim that the circuit court is limited in its discretion to award
reasonable guardian ad litem fees. Despite mother’s contention, the amount of the award is clearly
within the discretion of the trial court. Verrocchio, 16 Va. App. at 321-22, 429 S.E.2d at 486-87.
See also Kane v. Szymczak, 41 Va. App. 365, 375, 585 S.E.2d 349, 354 (2003).
Further, a review of the record indicates that it was reasonable for the court to award
$11,010.85 of GAL fees, and to apportion $10,010.85 of the cost to mother. The court concluded
that mother’s actions unnecessarily “increased the amount of time and therefore the amount of
expense necessary to conclude this case.”6 Between the initial court proceeding in September 2015,
when the GAL was appointed, and the final ruling in March 2017, the parties were required to
attend four separate hearings at mother’s request. Each hearing concerned the same issue: mother’s
refusal to undergo an independent psychological evaluation and her repeated, unsuccessful attempts
to convince the court to dispense with the requirement. At the March 2017 hearing, mother
ultimately chose to rest her case rather than submit to a psychological evaluation. The GAL
presented an exhibit detailing the forty hours that he spent on the case during the year and a half that
it was pending. Therefore, we find that the court did not err in awarding GAL fees or in ordering
mother to pay a majority of the cost.
IV. Award of Guardian ad litem Fees on Appeal
The GAL also requests an award of costs he incurred on appeal. After reviewing the record
in this case, we find that an award of reasonable attorney’s fees and expenses is appropriate.
6
The court specifically found that “[f]ather’s actions, as the Defendant in this litigation,
appear entirely opposite those of [m]other.”
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Mother’s appeal “generated unnecessary delay [and] expense in pursuit of [her] interests” by failing
to “address[] appropriate and substantial issues.” Estate of Hackler v. Hackler, 44 Va. App. 51, 75,
602 S.E.2d 426, 438 (2004). See also Gottlieb v. Gottlieb, 19 Va. App. 77, 95-96, 448 S.E.2d 666,
677 (1994) (awarding attorney’s fees on appeal where “[m]any of [appellant’s] questions presented
or assignments of error were not supported by the law or the evidence”). Accordingly, we remand
this case to the court for the limited purpose of conducting a hearing to determine the additional
amount of fees and expenses the GAL should be awarded for this appeal.
CONCLUSION
For the reasons set forth above, we affirm the judgment of the trial court. We remand the
case for the limited purpose of awarding additional GAL fees incurred with this appeal.
Affirmed and remanded.
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