STEINMANN v. BUCK



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

v.

BUCK


NOVEMBER 21, 2000

Record No. 1117-00-1

Present: Chief Judge Fitzpatrick, Judge
Bumgardner and

Senior Judge Hodges

KARIN STEINMANN

v.

STEVEN F. BUCK

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

William F. Rutherford, Judge


MEMORANDUM OPINION[1] PER
CURIAM

(Kristen D. Hofheimer; Charles R. Hofheimer;
Charles R. Hofheimer, P.C., on brief), for appellant.

(Mary G. Commander, on brief), for appellee.

Steven F. Buck and Karin Steinmann are the
parents of a minor child. Upon Buck’s motion, the trial judge
declined to exercise further jurisdiction over matters pertaining
to custody of the parties’ child and found that the 24th Judicial
District Court of Jefferson Parish in the State of Louisiana is a
more appropriate forum pursuant to Code ? 20-130. Steinmann
appeals that decision. She contends the trial judge erred in: (1)
applying Code ? 20-130 to decline jurisdiction because the
matter is an appeal from the Norfolk Juvenile and Domestic
Relations District Court ("Norfolk J&DR Court"),
and the Norfolk Circuit Court is the appellate court for such
matters; (2) declining to hear an appeal of right from a decision
rendered in the Norfolk J&DR Court; (3) finding the Louisiana
court is a more appropriate forum where a final order has been
entered in the Norfolk J&DR Court, where both parties and the
guardian ad litem agreed to subject matter
jurisdiction in the Norfolk J&DR Court, and where the child
resides in Louisiana only as a result of the Norfolk J&DR
Court’s order, which is before the trial court on appeal. Upon
review of the record and briefs of the parties, we conclude that
Steinmann’s appeal is without merit. Accordingly, we summarily
affirm the decision of the trial judge. Rule 5A:27.

BACKGROUND

The parties were married in 1991 and were
divorced by decree entered on December 21, 1998 in the 24th
Judicial District Court of Jefferson Parish of the State of
Louisiana ("Louisiana District Court"). The divorce
decree indicated the parties had "verbally worked out"
custody and visitation. The record indicates the parties had
agreed that Steinmann would have physical custody of the child,
with the child residing with her during the school year and
visiting Buck during the summer.

While the child was visiting Buck during the
summer of 1999, a dispute arose between the parties as to when
the child would be returned to Steinmann. Steinmann retrieved the
child from Louisiana and returned to Norfolk, where she was
temporarily living while her husband was in a military training
school. Steinmann’s residence was in Germany at that time.

In June 1999, a judge of the Louisiana District
Court entered an order demanding that Steinmann return the child
to Buck. Buck then filed a petition in the Norfolk J&DR Court
for the enforcement of the Louisiana District Court order and for
custody of the child. The Norfolk J&DR Court determined it
had jurisdiction to hear the case pursuant to Code
?? 16.1-241(A)(3), 20-126 and 20-128 based on the
following reasons: (1) both parties submitted themselves to the
jurisdiction of the court by filing petitions there; (2) both
parties, under oath, verbally submitted themselves to the court’s
jurisdiction; (3) the parents and the child were physically
present in Norfolk when Buck filed his petition for custody; (4)
Steinmann was personally served with process in Norfolk; (5) both
parties submitted themselves to the court’s jurisdiction by
making general appearances; and (6) the guardian ad litem
agreed that it was in the child’s best interests to submit the
child to the jurisdiction of the court.

The Norfolk J&DR Court awarded primary
physical custody of the child to Buck and established a
visitation schedule for Steinmann. The child has resided in
Louisiana with Buck since August 1999, and Steinmann returned to
Germany.

Steinmann appealed the decision to the Norfolk
Circuit Court. The guardian ad litem filed a motion
to dismiss the appeal based on the circuit court’s lack of
subject matter jurisdiction or, in the alternative, he requested
that the circuit court decline to exercise jurisdiction pursuant
to Code ? 20-130. Buck also filed a motion to dismiss.

By order entered on April 19, 2000, the trial
judge found that the Norfolk Circuit Court has jurisdiction over
this custody action as appealed from the Norfolk J&DR Court
because the Norfolk J&DR Court had jurisdiction over the
petitions of the parties at the time they were filed. However,
the trial judge also found that neither the parents nor the child
are "currently physically present" in Virginia.
Moreover, neither the parents nor the child "have
significant contacts" with Virginia. The trial judge further
found the child has been residing continuously in Louisiana with
Buck since August 1999, with the exceptions of visits with
Steinmann. The judge concluded that the Louisiana District Court,
which has jurisdiction over the location where the child
currently resides, "is a more appropriate forum."
Considering the best interests of the child, and in accordance
with Code ? 20-130, the trial judge declined to exercise
jurisdiction over the custody action and dismissed the action. He
further directed the clerk of the court to notify the Louisiana
District Court of the court’s finding.

ANALYSIS

The Norfolk Circuit Court has jurisdiction over
this custody case as appealed from the Norfolk J&DR Court.
Code ?? 16.1-136, 16.1-296 and 17.1-513. However, Code
? 20-130 provides, in pertinent part:

A. A court which has jurisdiction under [the
Uniform Child Custody Jurisdiction Act] to make an initial or
modification decree may decline to exercise its jurisdiction any
time before making a decree if it finds that it is an
inconvenient forum to make a custody determination under the
circumstances of the case and that a court of another state is a
more appropriate forum.

*   *   *   *
 *   *   *

C. In determining if it is an inconvenient
forum, the court shall consider if it is in the interest of the
child that another state assume jurisdiction. For this purpose it
may take into account the following factors, among others:

1. If another state is or recently was the
child’s home state;

2. If another state has a closer connection
with the child and his family or with the child and one or more
of the contestants;

3. If substantial evidence concerning the
child’s present or future care, protection, training, and
personal relationships is more readily available in another
state; and

4. If the parties have agreed on another forum
which is no less appropriate.

"The paramount consideration for a trial
court, even on the determination of the most convenient forum to
decide child custody and visitation, is the child’s
welfare." Farley v. Farley, 9 Va. App. 326, 329, 387
S.E.2d 794, 796 (1990).

In matters of a child’s welfare, trial courts
are vested with broad discretion in making the decisions
necessary to guard and to foster a child’s best interests. A
trial court’s determination of matters within its discretion is
reversible on appeal only for an abuse of that discretion, and a
trial court’s decision will not be set aside unless plainly wrong
or without evidence to support it.

Id. at 328, 387 S.E.2d at 795. Thus,
when "a trial court makes a determination which is
adequately supported by the record, the determination must be
affirmed." Id. at 328, 387 S.E.2d at 796. See also
Johnson v. Johnson, 26 Va. App. 135, 144, 493 S.E.2d 668,
672 (1997). Furthermore, in our review of a trial judge’s custody
decision, we view the evidence in the light most favorable to the
prevailing party below. See Lutes v. Alexander, 14
Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992).

Credible evidence supports the trial judge’s
decision. The parties’ divorce decree was entered in the
Louisiana District Court in 1998. The decree stated that the
parties had "verbally worked out [child] custody and
visitation." On June 23, 1999, after Steinmann removed the
child from Buck’s possession in Louisiana and in violation of the
parties’ oral visitation agreement, a judge of the Louisiana
District Court entered an order demanding that Steinmann return
the child to Buck. Because Steinmann had returned to Norfolk with
the child, Buck requested the Norfolk J&DR Court to enforce
the Louisiana court order and to award custody of the child to
him. The child has resided in Louisiana with Buck, in a locale
within the jurisdiction of the 24th Judicial District Court of
Jefferson Parish, since the Norfolk J&DR Court issued its
ruling in August 1999. Therefore, the Louisiana court has "a
closer connection with the child" and his father, one of the
contestants. See Code ? 20-130(C)(2).

Furthermore, neither the parents nor the child
currently have any significant contacts with Norfolk, Virginia.
During the proceedings in the Norfolk J&DR Court, Steinmann
was only temporarily living in Norfolk while her husband attended
a training school. None of the parties reside in Norfolk.
Moreover, the parties and the guardian ad litem
agreed to the jurisdiction in the Norfolk J&DR Court. Neither
Buck nor the guardian ad litem agreed to the
jurisdiction of the Norfolk Circuit Court.

Furthermore, the 24th Judicial District Court
of Jefferson Parish has jurisdiction over the location where the
child currently resides. Thus, "substantial evidence
concerning the child’s present or future care, protection,
training, and personal relationships is more readily
available" in Louisiana. Code ? 20-130(C)(3).

Steinmann contends she has an absolute right to
appeal the decision of the Norfolk J&DR Court and that she
cannot appeal that court’s decision to the Louisiana District
Court. However,

an appeal from the juvenile court must be heard
de novo by the circuit court. Code
? 16.1-136. "’A de novo hearing means a trial
anew
, with the burden of proof remaining upon the party with
whom it rested in the juvenile court.’" A trial de novo
in the circuit court "annuls the judgment of the [juvenile
court] as completely as if there had been no previous trial
. . . and . . . grants to a litigant every
advantage which would have been [available to the litigant] had
the case been tried originally in [the circuit] court."
"’A court which hears a case de novo, which
disregards the judgment of the court below, which hears evidence
anew and new evidence, and which makes final disposition of the
case, acts not as a court of appeals but as one exercising
original jurisdiction.’"

Fairfax County Dep’t of Family Servs. v.
D.N.
, 29 Va. App. 400, 406, 512 S.E.2d 830, 832 (1999)
(citations omitted). Because the Norfolk Circuit Court would
conduct a "trial anew," disregarding the judgment of
the Norfolk J&DR Court and hearing the evidence anew "as
if there had been no previous trial," Steinmann is not
prejudiced by having the custody case heard in the Louisiana
District Court.

For these reasons, we hold that the trial judge
did not abuse his discretion in finding that the 24th Judicial
District Court of Jefferson Parish in the State of Louisiana
would be a more convenient forum to hear this custody case and in
refusing to exercise further jurisdiction in this matter. We
therefore affirm the trial judge’s decision.

Affirmed.

FOOTNOTES:

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

 

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