A step too far — Court: Dismissing dad’s custody appeal too harsh

A Richmond circuit judge should not have tossed out a father’s appeal of a child custody ruling just because the father shared a confidential psychological report with his new wife, the Court of Appeals of Virginia has ruled.

The trial judge had sealed the psychological report and forbade any outside distribution. Nonetheless, the pro se father allowed his new wife — the children’s stepmother — to review the report. The stepmother then sent a threatening letter to the psychologist.

Judge Bradley B. Cavedo sanctioned the father with dismissal of his custody appeal. But according to the Court of Appeals panel, that decision was both too harsh for the circumstances and failed to account for the best interests of the children.

The Oct. 26 appellate opinion written by Judge Robert J. Humphreys is Winters v. Winters (VLW 021-7-143).

Report brings protest from non-party

William and Cleome Winters were divorced in 2013, according to the summary by the Court of Appeals. The father married Kristan Winters in 2015. In 2019, the Richmond Juvenile and Domestic Relations Court gave the mother, Cleome, sole legal and primary physical custody of the couple’s three children.

The father appealed pro se to the Richmond Circuit Court. The case produced “a substantial amount of litigation,” in Cavedo’s words. Over the father’s objection, Cavedo ordered an independent psychological evaluation by Michele Nelson, Ph.D.

Cavedo’s order stated that the psychology report was to be sealed and restricted to the parties, attorneys, experts, the guardian ad litem and anyone else approved by the court. Nelson submitted her report Nov. 4, 2019.

About seven months later, stepmother Kristan sent a 13-page letter to Nelson complaining of “multiple ethical violations” in Nelson’s report. The stepmother threatened legal action if Nelson did not “cease and desist” making “defamatory and misleading statements,” as related by Cavedo.

Case dismissed

The father’s handling of the report was sanctionable, Cavedo ruled.

“The letter from Mrs. Winters to Dr. Nelson was threatening. It was interference on behalf of a party with the court’s own appointed witness. It’s appalling. I’ve never seen anything like it,” Cavedo said at a Sept. 18, 2020, hearing, as quoted by the appellate court.

Cavedo announced he would dismiss the father’s appeal.

“This is an offense against the court and I have the authority to do that,” he said at the hearing.

Cavedo also denied the father’s motions to recuse Nelson and to have the stepmother declared an expert. The judge awarded $76,363.56 to the mother for attorney’s fees and costs.

Milder alternatives available

At the Court of Appeals, Humphreys, joined by Chief Judge Marla Graff Decker and Judge Mary Grace O’Brien, concluded that the penalty of dismissal was unduly severe and inappropriate given the need to consider the best interests of the children. The appeals court remanded the case for consideration of a “more measured” sanction.

“The circuit court held that it had authority to dismiss father’s appeal as a punishment for his misconduct even if dismissal resulted in the subversion of the best interests of three other people, namely, the parties’ three minor children. We disagree,” Humphreys wrote.

The court stressed that dismissal can be an appropriate sanction for misconduct or disobedience in the right circumstances.

“We only hold that it was inappropriate for the circuit court to do so in this case because the dismissal of the case was an unduly severe sanction for misconduct tangentially related to the underlying suit and was not narrowly tailored to correct father’s improper disclosure of the sealed report,” the court said.

Possible alternatives could include a fee award, a monetary fine, limits on evidence, a requirement of pre-filing approval, or even incarceration, the court said.

Stepmother was no expert

The appeals court devoted two pages to affirming the power of trial courts to hold an offending party in contempt for bad faith or disobedience. The court pointed to Va. Code § 20-124.2(E) as well as cases establishing the courts’ “inherent power of self-defense and self-preservation.”

Accordingly, Cavedo did not abuse his discretion by imposing sanctions, the court ruled.

Nor did the trial court abuse its discretion by refusing to deem the stepmother an expert who would be entitled to see the psychology report.

The father, who was represented by Thomas H. Roberts before the Court of Appeals, asserted that the stepmother was permitted by the terms of Cavedo’s order to see the report because she was a “consulting” expert for the father.

“Father offers no discernable legal support for such an exception,” the appeals court said, noting the stepmother worked as a nurse in hospice care. Her expertise was irrelevant, the court concluded.

The court also affirmed Cavedo’s rejection of the father’s motions to bar expert testimony from Nelson. Cavedo’s award of attorney’s fees to the mother was proper, the court said. But the court denied fee requests by both parties for the expenses of the appeal.

The mother was represented by Robert L. Isaacs of Henrico. Regarding the “measured” penalty to be applied on remand, Isaacs said he intended to ask Cavedo to bar the father from offering any expert testimony to refute Nelson’s evidence.

“I’ll probably also look for a payment plan for the fee award,” Isaacs said. “Otherwise, we’ll never see it.”

Roberts — the father’s lawyer on appeal — said the appellate opinion affirms the importance of the children in divorce.

“The case stands for the proposition that the primacy of the best interests of the children should control, and all other matters should be subordinate to it,” he said.

“It’s always more difficult for the court when a litigant is pro se,” Roberts added.