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PARISH v. SPAULDING (59826)


PARISH v. SPAULDING


February 26, 1999
Record No. 980913

KEITH D. PARISH

v.

MARY BETH SPAULDING

FROM THE COURT OF APPEALS OF VIRGINIA
Present: All the Justices
OPINION BY JUSTICE BARBARA MILANO KEENAN


In this appeal of an order adjudicating issues
of child custody, visitation, and support, the primary question
is whether the trial court employed proper procedures in
determining the merits of a custodial parent’s move from Virginia
to Indiana, which was made in violation of a court order.

The Circuit Court of Prince William County
entered an order in December 1995 (the 1995 custody order),
awarding sole custody of Keith Douglas Parish, Jr. and Samantha
N. Parish (the children) to their mother, Mary Beth Spaulding.
The children’s father, Keith D. Parish, Sr., was awarded
visitation rights on alternate weekends, a portion of holidays
and school vacations, and four weeks during the summer. At the
time the 1995 custody order was entered, both the mother and the
father resided in Virginia. The order required that a party
intending to change residence give 30 days’ written notice of the
intended change to the court and to the other party.

The father appealed the 1995 custody order to
the Court of Appeals. In July 1996, while that appeal was
pending, the mother appeared before the circuit court to request
a change in visitation and permission to move the children to
Indiana. The circuit court ruled that it did not have
jurisdiction to hear the matter due to the appeal pending in the
Court of Appeals. On the same day, the mother filed another
document with the circuit court, giving notice of her intent to
move in 30 days and providing two "probable" addresses
and a telephone number in Indiana.

The Court of Appeals later denied the mother’s
request to allow the trial court to adjudicate the issues
involving her move while the appeal was pending. The mother made
additional unsuccessful attempts, in July and August 1996, to
obtain a modification of the father’s visitation rights and
permission to move the children to Indiana. Both the circuit
court and the Prince William County Juvenile and Domestic
Relations District Court (juvenile court) ruled that they lacked
jurisdiction to hear the mother’s petitions because no emergency
existed and the Court of Appeals had denied the mother’s request.
On July 26, 1996, in response to the father’s request for an
injunction, the juvenile court entered an order enjoining the
mother "from removing the residence of the minor children of
the parties from the boundaries of the Commonwealth of Virginia,
until further order of the Court." The mother did not appeal
from this order.

Despite the order, the mother moved the
children to Indiana in August 1996. The Court of Appeals
ultimately affirmed the 1995 custody order in an unpublished
opinion. Parish v. Spaulding, Record No. 0137-96-4
(November 19, 1996).

In January 1997, the circuit court held a
two-day ore tenus hearing in response to the father’s
motions to modify custody and visitation. Before the hearing, the
circuit court denied the father’s motion to withdraw his appeal
of a juvenile court order concerning child support and, on its
own motion, consolidated that appeal with the pending motions
concerning custody and visitation.

At the hearing, the mother testified that her
move to Indiana was necessitated by financial difficulties that
occurred when her present husband lost his job in Virginia and
she was due to give birth to her fourth child. The mother stated
that her husband’s family lived in Indiana and offered them
assistance and rent-free housing. After the move to Indiana, her
husband obtained employment as a warehouse manager for a
furniture store where he was still employed at the time of the
hearing. The children began attending school in Indiana at the
start of the 1996-97 school year.

The father testified that he lives in Prince
William County with his parents and is employed as a bartender
and waiter at a local steakhouse. His sister’s family also lives
nearby in Prince William County. The father asked the circuit
court to grant him custody of the children.

The court found that there had been significant
changes in circumstances since the 1995 order concerning custody
and visitation. After evaluating each of the factors listed in
Code Sect. 20-124.3, the court determined that the mother
should retain sole custody of the children. The court also ruled
that the mother’s move to Indiana was in the best interests of
the children. The court stated:

First of all, the move to Indiana
offered economic stability in the sense that [the mother] found herself in economic distress. It offered an
opportunity to live in Indiana in a home that was
rent-free, not unlike the same situation [the father] lives in here in Virginia. Number 2, it offers economic
stability, in that the [mother] was in fact unemployed
and the [mother's] new husband lost his job in Virginia
and needed to move to find full employment and so moved
to Indiana. It offered some economic stability based on
the fact that the [father] in this case was not paying
child support as ordered by the Court. Number four, in
terms of an educational opportunity, it offered the
[mother] an opportunity, together with her new husband,
for additional schooling. Number 5, in terms of
educational opportunities for the children, the transfer
of the children was made in the summertime so as not to
interfere with the schooling of the children and did not,
in fact, interfere with that schooling. Number 6, it
offered some emotional stability to the children. [The
new husband] was allowed to return and address the issues
of visitation and child support that he had outstanding
in Indiana. And that offered some stability to their
family environment.

The court then modified the father’s visitation
with the children based on the distance between the children’s
new home in Indiana and the father’s home in Virginia. The court
also ordered an increase in child support based on the father’s
income and the needs of the children.

The father appealed the trial court’s order to
the Court of Appeals, which affirmed the trial court’s judgment. Parish
v. Spaulding
, 26 Va. App. 566, 496 S.E.2d 91 (1998). This
appeal followed.

The father argues on appeal that the Court of
Appeals erred in affirming the trial court’s judgment, because
the trial court failed to conduct a hearing as required by this
Court’s holding in Carpenter v. Carpenter, 220 Va. 299,
257 S.E.2d 845 (1979). He contends that, as a result, he suffered
a denial of due process.
[1] We disagree with the father’s argument.

We first observe that this assignment of error
contests only the procedure employed by the trial court, rather
than the substance of the court’s determination.
[2] In the trial court, the father agreed
that the court lacked jurisdiction to hold a hearing prior
to the mother’s move because the custody order was under review
by the Court of Appeals. See Greene v. Greene, 223
Va. 210, 212, 288 S.E.2d 447, 448 (1982). Since the father agreed
with the trial court’s ruling on this issue, we will address only
his argument that the trial court denied him due process in its
conduct of the proceedings after the move had occurred.

In Gray v. Gray, 228 Va. 696, 698, 324
S.E.2d 677, 678 (1985), we stated that our decision in Carpenter
"holds that before a court permits a custodial parent to
remove children from the Commonwealth, it must determine that
removal is in the children’s best interests." Under the
facts presented here, the trial court determined the merits of
the move after it had occurred. The welfare of the children was
the controlling consideration before the court in deciding this
issue. All other matters, including the mother’s conduct in
moving from Virginia without court approval, were subordinate to
this consideration. See Bottoms v. Bottoms, 249 Va.
410, 413, 457 S.E.2d 102, 104 (1995); James v. James, 230
Va. 51, 53, 334 S.E.2d 551, 553 (1985); Gray, 228 Va. at
698, 324 S.E.2d at 678; Keel v. Keel, 225 Va. 606, 610,
303 S.E.2d 917, 920 (1983); Bostick v. Bostick-Bennett, 23
Va. App. 527, 533, 478 S.E.2d 319, 322 (1996); Hughes v.
Gentry
, 18 Va. App. 318, 322, 443 S.E.2d 448, 451 (1994).

The father’s right of due process entitled him
to notice and an opportunity to be heard on this issue. See
McManama v. Plunk, 250 Va. 27, 34, 458 S.E.2d 759, 763
(1995); Brown v. Brown, 240 Va. 376, 380, 397 S.E.2d 837,
839 (1990). The record shows that the father requested the
January 1997 hearing to obtain a change of custody or, in the
alternative, a modification of his visitation rights. During that
hearing, the court also heard evidence concerning the mother’s
decision to move the children from Virginia.

The father did not assert that he was
unprepared to proceed on this issue or ask the court to consider
the merits of the move at a later date. The record also shows
that the court based its decision approving the move on the facts
existing at the time of the move, rather than on evidence
relating to the parties’ changed circumstances after the move.
Therefore, we conclude that the trial court conducted the
proceedings required by Carpenter and provided the father
due process in determining whether the move to Indiana was in the
children’s best interests.

The father next argues that the trial court
erred in failing "to enforce" the juvenile court
injunction prohibiting the mother from removing the children from
Virginia without court approval. He asserts that
"enforcement" of the order requires that "the
children’s residence be re-established in the Commonwealth of
Virginia until the terms of the injunction are met." We
disagree with this argument.

The trial court did not err in failing "to
enforce" the juvenile court order in the manner requested.
The children already had been moved outside the Commonwealth. To
require the children to return to Virginia irrespective of their
best interests would have violated the requirement that courts
act only in furtherance of those interests. See Bottoms,
249 Va. at 413, 457 S.E.2d at 104; Keel, 225 Va. at 610,
303 S.E.2d at 920. All litigants, however, are required to comply
with court orders and their failure to do so subjects them to the
sanction powers of the court. Here, the father was entitled to
seek the imposition of sanctions against the mother for her
violation of the injunction, but he did not request that the
mother be sanctioned for this particular act. Thus, we do not
consider the issue further in this appeal.

Finally, Parish argues that the trial court
improperly prohibited him from withdrawing his appeal of the
juvenile court’s order concerning child support. He contends that
he was prejudiced by the court’s action because he "was
denied the opportunity to focus the Court’s attention on the only
issue important to him — contact with his children." We
find no merit in this contention.

In denying the father’s motion to withdraw his
appeal, the trial court noted that the parties had brought nine
cases to the circuit court over the prior three years. The court
later stated that these circumstances had fragmented the issues
between the parties and that it was "time for these matters
to really come to a head." The record does not show that the
father was prejudiced by this ruling. In denying the father’s
motion, the court was able to consolidate the cases pending
before the court and to rule on the related issues of custody,
visitation, child support, and the merits of the mother’s move.
Moreover, the father asserts no error regarding the amount of
support awarded in this hearing.

We have considered the father’s remaining
arguments and conclude that they have no merit. Therefore, we
will affirm the judgment of the Court of Appeals.

Affirmed.

 

JUSTICE COMPTON, with whom CHIEF
JUSTICE CARRICO joins, dissenting

In this case, one parent deliberately has
violated a valid Virginia juvenile court order by removing the
residence of the parties’ minor children from the Commonwealth
without prior court permission, thereby manufacturing a
"change of condition," and thus encroaching on the due
process rights of the other parent on issues of child custody,
visitation, and support.

The majority endorses such practice, without
even a hint of disapproval (except to blame the father for
failing to seek "sanctions"), relying solely on
"the best interests of the children." I cannot join
such a decision.

As I interpret the record, the circuit court
did not base its decision approving the move solely on the facts
existing at the time of the move. Rather, the court considered
facts relating to the changed circumstances existing after
the move. Indeed, the circuit court’s lengthy recitation of
reasons to support its decision in favor of the mother, quoted in
the majority opinion, speaks mainly about Indiana conditions that
existed after the move. This points up the unfairness to the
father in which the circuit court, the Court of Appeals, and now
a majority of this Court, in a classic exercise of bootstrapping,
all have infringed on the father’s due process rights.

Therefore, I would reverse the judgment of the
Court of Appeals with direction that the case be remanded to the
circuit court for further proceedings, including requiring the
mother to show cause why she should not be held in contempt of
court for violation of the order prohibiting removal of the
children’s residence from the Commonwealth without court
permission.

 

 

FOOTNOTES:

[1] The mother has not entered an
appearance in this appeal.

[2] Since the father has not presented an
assignment of error regarding the merits of the trial court’s
custody determination, we do not consider the arguments in his
brief addressing this subject. See Rule 5:17(c).

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