Rosa L Chittum v. Paula Kay Johnson ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Agee
Argued at Alexandria, Virginia
ROSA L. CHITTUM, LARRY W. CHITTUM,
PAMELA CONLEY, F/K/A PAMELA MISKOVSKY AND
ROXANNE CULLEN
v. Record No. 0883-02-4
PAULA KAY JOHNSON AND
CARLTON CONLEY MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 31, 2002
CARLTON CONLEY
v. Record No. 0884-02-4
LARRY CHITTUM, ROSA CHITTUM,
PAMELA CONLEY, F/K/A PAMELA MISKOVSKY,
ROXANNE CULLEN AND PAULA KAY JOHNSON
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
Jon E. Shields (Jon E. Shields, P.C.,
on brief), for Rosa L. Chittum, Larry W.
Chittum, Pamela Conley, f/k/a
Pamela Miskovsky and Roxanne Cullen.
Paul D. Scanlon for Carlton Conley.
Kenneth P. Mergenthal for Paula Kay Johnson.
Rosa and Larry Chittum, Pam Miskovsky and Roxanne Cullen
(collectively the "Chittums")and Carlton Conley appeal the trial
court's order that merged Conley's visitation with the minor
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
child C.M.J.C. with that of the Chittums, on the following
grounds: 1) the petition filed by Paula Johnson, seeking
termination of Conley's visitation, failed to provide sufficient
notice of the relief sought and ordered by the court, and
further, the petition failed to allege a material change in
circumstances, 2) the evidence was insufficient to support a
finding that Conley's marriage to Miskovsky and relocation to
Buena Vista constituted a material change in circumstances, 3)
the evidence was insufficient to establish that a modification
of visitation was in the best interests of the child, and 4) the
trial court failed to consider all the factors in Code
§ 20-124.3 in determining the best interests of the child. For
the reasons that follow, we reverse.
Background
C.M.J.C. is one of two babies discharged to the wrong
biological parents from the University of Virginia hospital in
July 1995. Although Kevin Chittum and Whitney Rogers were
C.M.J.C's biological parents, the hospital erroneously
discharged her to Carlton Conley and Paula Johnson. 1 Johnson and
Conley's biological daughter was discharged to Kevin Chittum and
1
In July 1998, Conley received the results of a blood test,
which established he was not the biological father of C.M.J.C.
Subsequent tests established that Johnson was not the child's
biological mother.
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Whitney Rogers, both of whom were later killed in a car accident
in July 1998. 2 Kevin Chittum was the son of Rosa and Larry
Chittum and brother of Pam Miskovsky and Roxanne Cullen.
Several court orders granted all the parties visitation
with C.M.J.C. pursuant to a schedule established by the court.
On September 21, 1998, the Greene County Juvenile and Domestic
Relations District Court granted custody of C.M.J.C. to Paula
Johnson and visitation to Conley. The order set Conley's
visitation at "every other weekend . . . and on Tuesday and
Thursday from 8:00 p.m. to 8:30 p.m. . . . [and] other
visitation as agreed upon." The court issued an order on
September 2, 1999, amending the previous order and changing
Conley's visitation to "every other weekend . . . ."
On January 21, 2000, the Juvenile and Domestic Relations
District Court of Stafford County awarded visitation to the
Chittums, collectively, on the second weekend of every month and
the second week in July. 3 The order further provided: "The
weekend should be scheduled in odd numbered months . . . on a
2
That child is now being raised by the parents of Whitney
Rogers and Kevin Chittum; her custody and visitation are not at
issue on appeal.
3
The court noted that all matters regarding Conley's
visitation with the child were transferred to Stafford County
and Conley submitted himself to the jurisdiction of the Stafford
County Juvenile and Domestic Relations District Court.
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weekend not otherwise provided for Carlton Conley and should be
taken from the schedule afforded Mr. Conley." 4
On March 31, 2000, the Stafford County Circuit Court
entered a consent order, which appointed Johnson as the child's
guardian and adopted the January 21, 2000 order. Accordingly,
the court granted the Chittums visitation in accordance with the
January 21, 2000 order, from Friday to Sunday on the second
weekend of each month and one full week in July. 5
On April 24, 2001, Conley married Miskovsky. Johnson filed
a petition to terminate Conley's visitation on May 16, 2001.
After a hearing on Johnson's petition, the court entered an
order on March 11, 2002, which combined Conley's visitation with
that of the Chittums, effectively reducing Conley's visitation
with the child to one weekend each month, and precluding his
sole visitation with the child. Conley appeals the order
modifying the existing visitation, and the Chittums
cross-appeal.
4
The Greene County Juvenile and Domestic Relations District
Court issued a schedule for Conley when it granted him
visitation in 1998.
5
This order did not explicitly address Conley's visitation,
which was granted initially by the Greene County Juvenile and
Domestic Relations District Court.
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Analysis
I. Procedural Defect Claims
Conley and the Chittums contend Johnson's pleading was
deficient because it did not seek modification of visitation,
the position she adopted at the hearing, and only sought
termination of Conley's visitation. They argue the appeal
should not be considered, on the ground Johnson's pleading
failed to give proper notice of her claim. They also argue
Johnson failed to allege a material change in circumstances in
her petition. We decline to address these procedural default
issues on appeal because Conley and the Chittums present neither
argument nor authority in support of these contentions. See
Rule 5A:20(e). "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). We thus turn to the substantive issues
presented.
II. Material Change in Circumstances
Conley contends the trial court erred in finding that his
marriage to Miskovsky and relocation to Buena Vista constituted
a material change in circumstances. We disagree.
As the party seeking to modify custody, Johnson bore the
burden to prove: (1) there had been a material change of
circumstances since the most recent custody award and (2) that a
change in custody would be in the best interests of the child.
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See Hughes v. Gentry, 18 Va. App. 318, 321, 443 S.E.2d 448,
450-51 (1994) (citing Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d
917, 921 (1983)). "This rule advances the obvious benefits of
providing stability in the life of the child whose custody is
the subject of the conflict between the parents." Hughes, 18
Va. App. at 322, 443 S.E.2d at 451 (citing Peple v. Peple, 5
Va. App. 414, 421, 364 S.E.2d 232, 237 (1988)).
The decision to modify a child custody order is committed
to the sound discretion of the trial court. See Wilson v.
Wilson, 18 Va. App. 193, 195, 442 S.E.2d 694, 695-96 (1994).
"'The court, in the exercise of its sound discretion, may alter
or change custody or the terms of visitation if subsequent
events render such action appropriate for the child's welfare.'"
Id. (quoting Eichelberger v. Eichelberger, 2 Va. App. 409, 412,
345 S.E.2d 10, 11 (1986)). However, if the court does not first
find a material change in circumstances, consideration of the
"best interests of the child" is barred by the principles of res
judicata. See Hiner v. Hadeed, 15 Va. App. 575, 580, 425 S.E.2d
811, 814 (1993). "'Whether a change of circumstances exists is
a factual finding that will not be disturbed on appeal if the
finding is supported by credible evidence.'" Ohlen v. Shively,
16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993) (citation
omitted). The definition of "change in circumstances" is not
limited to negative events that may occur in the home of the
custodial parent, but is broad enough to include changes of the
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non-custodial parent, such as remarriage. See Keel, 225 Va. at
612, 303 S.E.2d at 921.
At the time the trial court granted Johnson's petition and
merged Conley's visitation with that of the Chittums, an April
20, 2001 order from Stafford County governed custody and
visitation. The order incorporated the terms of the previous
orders giving Conley visitation with C.M.J.C. every other
weekend and ordered the Chittums' visitation to conform to the
existing schedule for Conley's visitation.
Viewing the evidence in the light most favorable to
Johnson, the party prevailing below, together with all
reasonable inferences, see Peple, 5 Va. App. at 422, 364 S.E.2d
at 237, we cannot conclude the trial court erred in finding that
a material change in circumstances occurred between the April
20, 2001 Stafford County order and Johnson's petition to
terminate Conley's visitation on May 16, 2001. On January 20,
2002, the court held a hearing on Johnson's petition to
terminate Conley's visitation. At the hearing, Conley testified
that he lived in Buena Vista. Prior to Conley's testimony, the
only evidence before the court was that Conley lived in Greene
County. Moreover, it is uncontested that Conley and Miskovsky
married after the April 20, 2001 order. Therefore, we find no
error in the court's determination that a material change in
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circumstances occurred between the existing order of April 20,
2001 and its hearing on Johnson's petition on January 20, 2002. 6
III. Best Interests of the Child
Conley further argues that, even if his marriage and
relocation constitute a material change in circumstances, the
court erred in finding that a change in visitation was in the
best interests of the child. We agree.
"In matters concerning custody and visitation, the welfare
and best interests of the child are the 'primary, paramount, and
controlling considerations.'" Kogon v. Ulerick, 12 Va. App.
595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). While
the trial court is vested with broad discretion to make the
decisions necessary to safeguard and promote the child's best
interests, we may set aside its decision if there is no evidence
to support it. Farley v. Farley, 9 Va. App. 326, 327-28, 387
S.E.2d 794, 795 (1990).
6
Conley and the Chittums claim no material change in
circumstances existed because the court was aware of the
impending marriage of Conley and Miskovsky, as well as his
relocation to Buena Vista, when it issued its order at the prior
hearing on April 20, 2001. Indeed, Conley advised the court in
March 2001, in a Motion and Affidavit for a Rule to Show Cause,
of his marriage to Miskovsky, scheduled for April 24, 2001. He
further advised the court in a memorandum on April 20, 2001 that
he had moved to Buena Vista in September 2000. However, neither
the memorandum nor affidavit was admitted into evidence, and the
record fails to show that the court considered either document in
rendering its decision on April 20, 2001. Therefore, we must
conclude the memorandum and affidavit were not evidence before
the court at the time of the last hearing and the marriage and
relocation were not among the circumstances underlying the
court's previous order. In short, the evidence before the court
at the prior hearing showed that Conley was unmarried and living
in Greene County.
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In determining the best interests of the child, the trial
court must examine numerous factors, including but not limited
to: 1) the relationship existing between each parent and child,
giving due consideration to the positive involvement with the
child's life, and 2) the needs of the child. 7 Code
7
Code 20-124.3 provides:
In determining best interests of a child for
purposes of determining custody . . . the
court shall consider the following:
1. The age and physical and mental
condition of the child, giving due
consideration to the child's changing
developmental needs;
2. The age and physical and mental
condition of each parent;
3. The relationship existing between each
parent and each child, giving due
consideration to the positive involvement
with the child's life, the ability to
accurately assess and meet the needs of the
child;
4. The needs of the child, giving due
consideration to other important
relationships of the child, including but
not limited to siblings, peers and extended
family members;
5. The role which each parent has played
and will play in the future, in the
upbringing and care of the child;
6. The propensity of each parent to
actively support the child's contact and
relationship with the other parent, the
relative willingness and demonstrated
ability of each parent to maintain a close
and continuing relationship with the child,
and the ability of each parent to cooperate
in and resolve disputes regarding matters
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§ 20-124.3. In this case, evidence was limited to these two
factors. Therefore, we presume the evidentiary facts relating
to the remaining factors, as determined in the earlier
proceedings, had not changed because Johnson offered no new
evidence for the court's consideration. Those facts favored
visitation with Conley every other weekend.
In its determination of the best interests of the child,
the court adopted Johnson's conclusion that the child was
"spending too much time in the car" in order to comply with the
visitation schedule, and articulated this conclusion as the
basis for its decision. In adopting Johnson's conclusion, the
trial court relied on her testimony that the child was spending
"three and a half hours" in the car each way on the weekend
visitations to Buena Vista. Johnson also testified that the
child "doesn't have a life" because she "can't schedule anything
on the weekends." Nothing more than these generalizations
regarding the child's needs and the purported adverse impact
that Conley's marriage and relocation had on her needs were
affecting the child;
7. The reasonable preference of the child,
if the court deems the child to be of
reasonable intelligence, understanding, age
and experience to express such a preference;
8. Any history of family abuse as that term
is defined in § 16.1-228; and
9. Such other factors as the court deems
necessary and proper to the determination.
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submitted to the court. Johnson presented no other evidence
that the amount of time C.M.J.C. spent in the car had any
adverse impact on her physically, emotionally, psychologically
or socially. Specifically, Johnson failed to identify which, if
any, of C.M.J.C's activities were affected by Conley's marriage
and relocation, and in what adverse way. Furthermore, Johnson
testified, conversely, that the child "continues to do well and
is developing well" despite the circumstances surrounding her
birth, custody and visitation. The guardian ad litem's report
presented no evidence suggesting C.M.J.C. was not thriving.
Similarly, no evidence was presented that Conley's changed
marital status had any negative effect on the child whatsoever.
The only evidence that addressed the nature of the child's
relationship with Conley established that she loved him and
thought of him as a father. Furthermore, there was no evidence
showing a negative impact on the child emanating from her
relationship with Conley's new wife, Pam Miskovsky, an
individual with whom the child already had an established
relationship and with whom she already enjoyed visitation.
As a matter of law, we find the general statement that "the
child spends too much time in the car" as a result of Conley's
marriage and relocation is insufficient evidence to warrant
modification of a visitation award. Compare Hughes, 18 Va. App.
at 321, 443 S.E.2d at 450-51 (affirming a transfer of custody
because it was in the best interests of the child, where child
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"was happier and better able to relate" to the parties when
living with mother); Sullivan v. Knick, 38 Va. App. 773, 784-85,
568 S.E.2d 430, 435-36 (2002) ("The instant record demonstrates
few, if any, benefits to [the child] . . . from relocation
hundreds of miles from her father . . . . To the contrary, the
evidence clearly establishes that the move would disrupt the
positive involvement and influence of father in [the child]'s
life, a result at odds with her best interests."); Goldhamer v.
Cohen, 31 Va. App. 728, 525 S.E.2d 599 (2000) (finding ample
evidence in the record to support modification of visitation on
grounds that it was in the best interests of the child, where
the child began having problems and the child's psychologist
testified that the midweek overnight visitation at issue
disrupted the child's schedule for "normal sleeping and waking,
homework and other activities"). Accordingly, we reverse the
decision of the trial court.
Reversed.
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