Domestic Relations: Trial court erred relying on uncorroborated notes

Where the trial court relied on uncorroborated portions of a minor’s notes when it decided not to modify a custody arrangement, it erred.

Background

Michael Powell appeals the decision of the Court of Appeals affirming the judgment of the Fairfax County Circuit Court denying his motion to modify the custody arrangement with Melanie Knoepfler-Powell. Mike argues that the trial court erred by reviewing notes of their minor daughter (MP) while she testified, admitting the notes as a demonstrative exhibit and relying on MP’s notes in determining whether it was in MP’s best interests to modify the custody arrangement. Mike further argues that the Court of Appeals erred when it determined that he failed to preserve any objection to the trial court’s review of MP’s notes or its admission of the notes.

Preservation

Mike insists that he is not barred from challenging the trial court’s decision to review MP’s notes because the parties were unaware that the trial court was reviewing the notes until it was too late to raise a contemporaneous objection. The record, however, belies this assertion. Having failed to raise any objection, Mike has waived any argument regarding the trial court’s review of MP’s notes.

With regard to the trial court’s decision to admit MP’s notes as a demonstrative exhibit, the record establishes that Mike did expressly object to the trial court’s decision to admit MP’s notes as a demonstrative exhibit, but he never offered a basis for his objection. In the absence of the requisite specificity, the issue is generally deemed waived.

Mike, however, claims that he was following the trial court’s instructions when he simply objected to the admission of MP’s notes with nothing more. Indeed, the trial court had specifically instructed the parties to “just say the word [objection] … [i]f I need more, I will ask you for more.”

Although it appears that this instruction was given for MP’s benefit – i.e., as a means of avoiding any further discomfort while she testified – it also created a situation where the parties were seemingly limited in their ability to fully specify the basis for their objections. Given the context in which the objection was raised, it is possible to infer a basis for Mike’s objection.

Notably, it is undisputed that the notes contained hearsay and only certain portions of the notes were corroborated by MP’s testimony. At the same time, however, this court cannot know for certain if Mike intended to rely on one of these rationales, or perhaps a different rationale entirely, as a basis for his objection. Because it is “incumbent upon the litigants to make an appellate record,” especially when the possibility of an appeal is anticipated, this court will assume without deciding that Mike failed to preserve this issue for appeal.

Reliance

The issue of whether the trial court improperly relied on MP’s notes was sufficiently preserved for appeal. Mike argues that the trial court erred by using uncorroborated portions of the notes as substantive evidence. Specifically, he points to the trial court’s finding that MP felt scared of him. Mike notes that there was no substantive evidence offered to support this finding. According to Mike, the only mention of MP’s fear of him is in the notes. Mike also relies on the trial court’s references to MP’s stuffed bear as further demonstrating the trial court’s improper reliance on the notes.

The record in the present case clearly establishes that the trial court improperly relied on uncorroborated portions of MP’s notes when it decided not to modify the custody arrangement. Moreover, the court cannot overlook the gravity of the trial court’s improper finding.

By finding that MP was scared of Mike, the trial court essentially created a ripple effect that could continue to resonate throughout any future custody proceedings. Accordingly, the portion of the Court of Appeals decision that affirmed the judgment of the trial court is reversed and remanded the matter to the Court of Appeals with instructions to remand the case to the trial court for reconsideration in light of this decision.

Affirmed in part, reversed in part and remanded.

Powell v. Knoepfler-Powell, Record No. 230410, June 27, 2024. From the Court of Appeals of Virginia (Powell). VLW 024-6-025. 15 pp.