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NANCE v. LIMERICK


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subject to formal revision. If you find a typographical error or
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NANCE

v.

LIMERICK


COURT OF APPEALS OF VIRGINIA

OCTOBER 23, 2001

Record No. 0960-01-2

Present: Chief Judge Fitzpatrick, Judge
Bumgardner and

Senior Judge Hodges

BILLY DEAN NANCE

v.

VALERIE LIMERICK

FROM THE CIRCUIT COURT OF THE CITY OF
FREDERICKSBURG

Richard J. Jamborsky, Judge Designate

(Jennifer M. Simmons; Law
Offices of M. R. Reamy, on brief), for appellant.
Appellant submitting

on brief.

No brief for appellee.


MEMORANDUM OPINION[1] PER CURIAM

Billy Dean Nance ("father") appeals
from the decision of the circuit court terminating his visitation
rights with his daughter. Father contends the trial court erred
by admitting evidence relating to events that occurred prior to
the juvenile and domestic relations district court
("juvenile court") order allowing father visitation
with his daughter. For the reasons which follow, we affirm the
decision of the trial court.

FACTS

"We review the evidence in the light most
favorable to [mother], the party prevailing below and grant all
reasonable inferences fairly deducible therefrom." Anderson
v. Anderson
, 29 Va. App. 673, 678, 514 S.E.2d 369, 372
(1999). Ailyah Dawn Nance was born to father and Valerie Limerick
("mother") on March 13, 1995. On September 21, 1999,
the juvenile court heard evidence on father’s motion to amend
visitation. The court granted father’s motion and ordered one
visit between father and Ailyah every other month. Mother took
Ailyah to visit father at the correctional facility in which
father is incarcerated. On February 25, 2000, mother filed a
motion to amend the earlier visitation order, citing her
daughter’s nightmares following the visit to the prison. The
juvenile court granted mother’s motion and terminated father’s
visits. Father appealed, and the circuit court heard the case on
March 20, 2001. The parties presented testimony relating to
events that had occurred after the September 21, 1999 order. Over
father’s objection, the circuit court also heard evidence of
father’s abuse of mother which had occurred in 1997. The circuit
court likewise terminated father’s visitation.

ANALYSIS

Father contends that by hearing evidence of the
1997 domestic abuse, the circuit court relitigated issues that
had already been decided and ruled upon in the September 21, 1999
visitation order. Assuming without deciding that the trial court
erred in admitting the evidence, we find the error harmless.

"When it plainly appears
from the record and the evidence given at trial
that the parties have had a fair trial on the
merits and substantial justice has been reached,
no judgment shall be . . . reversed
. . . [f]or any . . . error
committed on the trial." Code
Sect. 8.01-678; see Lavinder
v. Commonwealth
, 12 Va. App. 1003, 1005, 407
S.E.2d 910, 911 (1991) (en banc)
("Code Sect. 8.01-678 applies to both
civil and criminal cases."). "The
burden is on the party who alleges reversible
error to show that reversal is justified." D’Agnese
v. D’Agnese
, 22 Va. App. 147, 153, 468 S.E.2d
140, 143 (1996).

Stockdale v. Stockdale, 33 Va.
App. 179, 185, 532 S.E.2d 332, 336 (2000).

"The trial court, in the interest of the
children’s welfare, may modify visitation rights of a parent
based upon a change in circumstances." Fariss v. Tsapel,
3 Va. App. 439, 442, 350 S.E.2d 670, 672 (1986). "In
making the determination whether there has been a change in
circumstances, the trial court may admit testimony concerning any
fact that tends to establish the probability (or improbability)
of a change in circumstances." Id. In Fariss,
the trial court admitted evidence concerning Fariss’ residence
several months prior to the initial visitation decree. We held
that "[i]n the absence of other evidence, [the] testimony
regarding the conditions of Fariss’ residence prior to the entry
of the initial visitation decree was not germane to the decision
whether to modify that decree." Id. In this case,
however, the court was presented with ample evidence separate
from the 1997 abuse to support its decision to terminate father’s
visitation.

Mother testified that when she took Ailyah to
visit father at the correctional center, she and father argued.
When Ailyah began to cry, father refused to allow her to go to
mother and stated, "See what your mother has done to
me." Mother also testified that shortly after the visit,
Ailyah began having nightmares. Mother took Ailyah to a therapist
to help the girl cope with the dreams. The trial court found that
in light of the changed circumstances, it was in the best
interests of the child to terminate father’s visitation. Because
the trial court heard sufficient evidence of a change in
circumstances to support the termination of visitation, we find
the admission of the evidence of the prior domestic abuse
harmless. Accordingly, we affirm the decision of the trial court.

Affirmed.

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, this opinion is not designated for
publication.

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