Virginia Lawyers Weekly VA Lawyers Weekly
The trial court correctly denied father’s motion to correct a visitation order because the court determined there was no error to correct.
The court properly sanctioned father. Mother is awarded attorney’s fees and costs on appeal.
Overview
The parties divorced in 2016. In 2019, the Frederick County Juvenile and Domestic Relations District Court heard father’s motion to amend custody and visitation of the parties’ minor child.
The JDR court’s final order retained the existing visitation schedule with several modifications: father’s mid-week visits were eliminated and his weekend visitation would begin at 10 a.m. on non-school Fridays instead of 4:30 p.m. Each party would have one week of vacation with the child.
Father appealed to the circuit court. After a hearing, the court’s memorandum to the parties “stated, ‘Also as advised I am ordering more visitation for the father as follows” and then listed provisions for holiday visitation, winter break visitation, and summer vacation visitation. Those provisions referenced both the final decree of divorce and the juvenile court order and expanded the visitation previously awarded father. The memorandum instructed counsel for father to prepare the final order on visitation.”
Father’s proposed order stated in the first paragraph that “‘Except as follows below, the visitation of the minor child, and the terms and conditions thereof, shall remain as set forth in the Frederick County Juvenile Domestic Relations District Court’s order of September 17, 2019.’
“Mother revised the final order and sent it back to father with an email stating that ‘The majority of the changes were just to have all visitation provisions in one order, rather than spread over three orders.’ In mother’s revised order, paragraph one was stricken and replaced with the following language: … ‘Father shall have visitation with the minor child every other weekend from Friday at 4:30 p.m. through Sunday at 5:00 p.m.’
“Father accepted this change, and mother and father both endorsed the order. On April 2, 2020, the circuit court entered the [final] order[.]”
In June 2020, father sought to correct the final order nunc pro tunc due to a scrivener’s error. Mother opposed the motion and sought sanctions. The court determined father’s motion was not “well-founded.” The court denied the motion and awarded mother $375 as a sanction.
Analysis
“Father argues that the circuit court erred in declining to correct its final order to provide that father’s weekend visitation begins at 10:00 a.m. on the Fridays when school is not in session. He also argues that the circuit court erred in awarding sanctions against him in connection with his motion to correct. We disagree. …
“Father contends that the circuit court intended to incorporate the visitation terms of the juvenile court order into its ruling on visitation, and therefore that the court abused its discretion in declining to enter a corrected order to that effect.
“He contends that the court’s use of the word ‘more’ in the memorandum was an implicit reference to and incorporation of the juvenile court order. Therefore, he argues that the omission of a reference in the final order to the juvenile court order’s visitation terms was simply a scrivener’s error.
“The circuit court considered these arguments when it evaluated the motion to correct. During the hearing on the motion, the court was given an opportunity to consider whether the memorandum implicitly incorporated the juvenile court order and whether the final order therefore erroneously omitted the 10:00 a.m. term.
“The court apparently disagreed with the arguments and found there was no error to correct. … To say that the circuit court abused its discretion in declining to modify the final order when that decision was a rejection of the same arguments made now on appeal would be to ‘substitute our view of the facts for those of the trial court.’ … We will not do so.
“Father also argues that the circuit court abused its discretion by awarding sanctions against him when it denied his motion to correct. … Father had asked the circuit court to modify its own order based on what he argued was an implicit reference to the juvenile court order in the oral ruling and memorandum.
“Without further explanation in the record for the circuit court’s decision, we can presume that the court disagreed with the factual basis for father’s motion and awarded sanctions as a result. As the court was ‘closest to the contest’ in the interpretation of its own order, we cannot say that the decision to award sanctions was outside of the ‘bell-shaped curve of reasonability.’”
Mother’s request for appellate costs and attorney’s is granted.
Von Gunten v. Lerch, Record No. 1135-20-4, April 27, 2021. CAV (Petty) from Frederick County Circuit Court (Madden). Andrew J. Muzic for appellant, Kelly C. Ashby for appellee. VLW 021-7-053, 10 pp. Unpublished.
Editor’s note: This article previously listed an incorrect VLW No., 021-7-052, for this case.
