Petition for Writ of Certiorari — Russell v. Russell (No. 06-1573)

In The

Supreme Court of the United States

JOSEPH MICHEL RUSSELL.

Petitioner,

Vv.

NANCY LYNNE RUSSELL.

Respondent.

On Petition For a Writ of Certioranri

To the Court of Appeals of Virginia

PETITION FOR A WRIT OF CERTIORARI

Joseph Michael Russell, Pro Se

6474 Oakwood Drive

Falls Church, Virginia 22041

703-209-9376

INTRODUCTORY STATEMENT

The Court of Appeals of Virginia Opinion allowed the

Tria] Court on its own motion to invoke continuing

jurisdiction over child custody as set forth in Section 20-

108 of the Code of Virginia and to terminate Father’s

custody of his child where there was no petition making

any issue, no notice of any controversy, and no change of

circumstances since the most recent custody award. This

violated Father’s Due Process protection of his

fundamental interest as a parent in the care, custody, and

control of his child.

QUESTION PRESENTED

Does the state lack a sufficiently compelling

justification for modifying child custody on its own motion

under authority of Virginia Code Section 20-108 where no

party had raised any issue and where there was no notice

provided as to of what was at controversy?

Oa

Bae Ss

QUESTION PRESENTED

ii

TABLE OF CONTENTS

pe Oe By bso. eb |

PETITION FOR A WRIT OF CERTIORARI..................

OPINIONS BELOW

JURISDICTION

CONSTITIONAL AND STATUTORY PROVISIONSG......

SEPM Gg ee ae: LSE eS

REASONS FOR GRANTING THE PETITION. ..............

I.

CONCLUSION

The Decision Below Denies Petitioner’s

Right as a parent to make decisions

concerming the care, custody and control of

his child Without Due Process of Law, and

Conflicts with Holdings of other State Supreme

Courts and with this Court’s Precedents..........

A. Due Process Clause protects fundamental

right of Parents concerning the care, custody

and control of their children........................

B. Supreme Courts of Alaska, Illinois,

New Jersey and Tennessee decided same

INN SIE PUOEE sock cosy eacndscscavanccsscesees

C. Application of Statue is inconsistent with

Prior decisions of the U.S. Supreme Court.......

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TABLE OF CONTENTS - Continued

Page

APPENDIX

Opinion of the Court of Appeals of Virginia

SNOT PORIIIEE FB vic va vaco san saceenscaveessan a-]

Order of the Circuit Court of Fairfax County

dated 20 December 2004......... cccssseccseecccecces a-18

Order of the Circuit Court of Fairfax County

ROE 2 PE Bed sk 55 in nso s anste dian baseasaavenaens a-19

Order of the Supreme Court of Virginia denying

petition for appeal dated 20 December 2006...a-22

Order of the Supreme Court of Virginia denying

petition for rehearing dated 9 March 2007.......a-23

Transcript (Excerpts)

Hearing December 5S, 2006 «ow ici ccasencasees a-24

Hearing December 20, 2004

TABLE OF AUTHORITIES

CASES: Page

Beck v. Beck, 432 A.2d at 71 (N.J. 1981)............ 0. eee 9

Caban v. Mohammed, 441 U.S. 380 (1979)...............04. 6

Carson v. Elrod, 411 F. Supp. 645, 649; DC E.D.

RG RE sa aN ans Ane A Sah Le ORRARE RRR RD DeRE REA AN Nees spaene 5

Doe v. Irwin, 441 F. Supp. 1247 (D.C. Michigan)

ERB Uies sc 55 4c Seca aWREGean ute wiakoanebeaca Sapien ceakecyicees 5

Keisling v. Keisling, 92 S.W.3d 374; 2002 Tenn............. 9

Lassiter v Department of Social Services, 452 US. 18,

27, 68 L. Ed 2d 640, 120 S.Ct. 2153, 2159- 60 (1981)....5

Lehr v. Robinson, 463 U.S. 248, 261-62 (1983).............. 6

Marriage of Birt._.510 N.E.2d 559, 564 (Ill. App. 1987)

Ee Pe RE Cat WET cisco oon cc enkanune~ccacanchwane 9

May v. Anderson, 345 U.S. 528, 533 (1952)...............2.. 6

Meyers v. Nebraska, 262 U.S. 390, 399, 401 (1923)....... 10

~ Pierce v. Society of Sisters, 268 U.S. 535 (1925).......... 10

Powell v Pennsylvania, 127 U.S. 678, 686 (1888)..........11

Prince v. Massachusetts, 321 U.S. 166 (1944)............ 7,10

Santosky v. Kramer, 455 U.S. 745, 753 (1982)........... 5,10

TABLE OF AUTHORITIES — Continued

Page

Smith v. Organization of Foster Families, 431 U.S. 816

Stanley v. Illinois, 405 U.S. 645, 651, 31 L.Ed 2d 551,

ie Maes A EEGs 45 on bak Siva in duds es eeeners ciaeamaieees 5,10

T.M.C v. S.A.C 858 P2d 315 (Alaska September 3,

CD na vaca as <dacus cen Cae beat hind akin siaameuien cedeesi tgs thewii ies 8

Troxel v Granville, 530 U.S. 57, 65 (2000)............... 7,10

Washington v. Glucksberg, 521 U.S. 720 (1997)........... 10

Wisconsin v. Yoder, 406 U.S. 205, 231-33 (1972)........ 5,10

CONSTITUTIONAL PROVISIONS:

U.S CONSTITUTION, Fourteenth Amendment Due

I a ce eveuuneeheee 2

STATUTORY PROVISIONS:

CODE OF VIRGINIA Section 20-108.

(Revision and alteration of such decrees)........... 2,3,7,8,10

CODE OF VIRGINIA Section 20-107.2.

(Court may decree as to custody and support

Be Pe NI Fa ois os ved cicada San ndndokwnk kikSucvsiuneh on 2

PETITION FOR A WRIT OF CERTIORARI

In the decision below, the Court of Appeals of Virginia

held that the Due Process Clause of the Fourteenth

Amendment does not require any notice when the trial

court on its own motion invokes the continuing jurisdiction

allowed by CODE OF VIRGINIA Section 20-108. Mr.

Joseph Michael Russell respectfully petitions for a writ of

certiorari to review the judgment of the Court of Appeals

for the Commonwealth of Virginia.

OPINIONS BELOW

The Virginia Court of Appeals decision is contained in a

non- published opinion dated October 3, 2006 at Record

Nos. 1469-05-4, 2247-05-4, 2585-05-4, 3151-05-4, 0204-

06-4 and 1107-06-4. (App. a-1) The orders in controversy

concerning custody and visitation are contained in orders

entered December 20, 2004 (App. a-18) and final order

entered May 20, 2005 (App. a-19) by the Circuit Court for

the County of Fairfax, Virginia.

JURISDICTION

Petitioner timely appealed to the court of last resort, the

Supreme Court of Virginia, and was denied review by

Order of that court dated 20 December 2006. (App. a-22)

Petitioner’s subsequent petition to the Virginia Supreme

Court for a rehearing was denied by Order dated 9 March

2007. (App. a-23) The jurisdiction of the United States

Supreme Court is invoked under 28 U.S.C. Section

1257(a). Petitioner questions the constitutionality of a

statute of a State, and states that service has been made

upon the State’s Attorney General pursuant to 28 U.S.C.

Section 2403(b) and Rule 29(4)(c).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. CONST. Amendment XIV states in relevant part: _

“No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the.

United States; nor shall any state deprive any person of life,

liberty, or property, without due process of law[.]” |

CODE OF VIRGINIA Section 20-108. (Revision and

alteration of such decrees) which states: “The court may,

from time to time after decreeing as provided in Section 20-

107.2, on petition of either of the parents, or on its own

motion or upon petition of any probation officer or the

Department of Social Services, which petition shall set

forth the reasons for the relief sought, revise and alter such

decree concerning the care, custody, and maintenance of

the children and make a new decree concerning the same,

as the circumstances of the parents and the benefit of the

children may require. The intentional withholding of

Visitation of a child from the other parent without just cause

may constitute a material change of circumstances

justifying a change of custody in the discretion of the

court.” 7

CODE OF VIRGINIA Section 20-107.2. (Court may

decree as to custody and support of minor children) which

states: “Upon entry of a decree providing (i)' for the

dissolution of a marriage, (ii) for a divorce, whether from

the bond of matrimony or from bed and board, (iii) that

neither party is entitled to a divorce, or (iv) for separate

maintenance, the court may make such further decree as it

shall deem expedient concerning the custody or visitation

and support of the minor children of the parties as provided

in Chapter 6.1 (Section 20-124.1 et seq.) of Title 20,

including an order that either party provide health care

coverage.”

: Bere

STATEMENT OF THE CASE

Without any petition or notice of any issue or

controversy, the trial court sua sponte, and without

identifying any vital or compelling state interest for doing

so, scheduled a custody hearing and then terminated

father’s custody of his child based solely on an in camera

review of a psychologist report. [Orders dated 20

December 2004, App. a-18, and 20 May 2005, App. a-19].

Petitioner noted his Constitutional objections [preserved at

TR Hearing December 3, 2004, App. a-24; TR Hearing

December 20, 2004, App a-25; Order 20 December 2004

Objection No. 2, App. a-18;} and timely noted his appeal

[Constitutional objections preserved at Virginia Court of

Appeals Appellant Briefs Records Nos. 1469-05-4

Question #1 and 1107-06-4 Questions #2 & #4; Virginia

Supreme Court Petition for Appeal Record No. 062213

Question #2 and Petition for Rehearing Record No. 062212

at p. 1].

The Virginia Court of Appeals upheld the trial court

ruling [ October 3, 2006 Opinion, App. a-6] and the

Virginia Supreme Court refused the petition for hearing and

petition for reconsideration. This petition for writ of

certiorari from the state court of last resort follows:

The continuing jurisdiction over child custody statute set

forth in Section 20-108 of the Code of Virginia (150, as

amended) is repugnant to the U.S. Constitution, both on its

face and as applied in the instant case. The statute places no

limitation on the exercise of unbridled judicial discretion,

even when that discretion is exercised in direct

contravention and derogation of a fundamental liberty

interest. The statute allows the court to change custody

solely on its own motion and provides unfettered exercise

of judicial discretion. The failure of the statute to limit the

court in child custody matters renders the statute overbroad

and fatally defective.

Petitioner argues that this same statute violates the

Constitutional rights of both the father and his child to have

their most important relationship afforded the highest levels

of Constitutional protection. Absent evidence of a

compelling state interest (such as a showing of abuse or

neglect), the “continuing jurisdiction” statute may never be

invoked in a manner grossly inconsistent with a parent’s

fundamental liberty interest in maintaining consortium with

their children. Yet the instant case demonstrates both the

fatally flawed, unconstitutional construction of the Virginia

continuing jurisdiction statute both on its face and in the

manner of application.

As applied in the inferior courts, a custody hearing was

conducted and the petitioner-father’s custody of his child

was terminated based solely on the courts own motion,

without any pleading being made or any notice provided

describing the issues or controversy before the court. As a

matter of constitutional law, however, the issue before this

court is whether this statute permits exercise of unfettered

judicial discretion to a degree which provided no protection

for the primacy of the parent-child relationships.

When no party has moved the Court to terminate

father’s custody of his child — and the Court, of its own

volition — decides to restrict that relationship, according to

law, it can only be a matter of “vital and compelling state

interest” by which the judge makes his ruling. Yet, no vital

or compelling state interest was identified other than the

fact that the Virginia Court of Appeals asserted that such a

ruling was allowable under the existing statutes.

“There is no doubt that constitutional principles must be

strictly observed and rigorously applied in cases involving

parent-child relationships, because these intimate

relationships are constitutionally protected.” Wisconsin v.

Yoder, 406 U.S. 205, 231-33 (1972). Following Yoder and

its progeny, virtually all state courts recognize the

underlying strength of parental rights, as articulated for

example by a state court in Doe v. Irwin, 441 F. Supp. 1247

(D.C. Michigan) (1985).

The rights of parents to the care custody and nurture

of their children is of such character that it cannot be

denied without violating those fundamental principles of

liberty and justice which lie at the base of all our civil and

political institutions, and such night is a fundamental night

protected by the fifth and fourteenth amendments to the

United States constitution. In Lassiter v Department of

Social Services, 452 U.S. 18, 27, 68 L. Ed 2d 640, 120

S.Ct. 2153, 2159-60 (1981), the Court stressed that the

parent-child relationship “is an important interest that

‘undeniably warrants deference and absent a powerful

countervailing interest protection.’” Quoting Stanley v.

lilinois, 405 U.S. 645, 651, 31 L.Ed 2d 551, 92 S.Ct. 1208

(1972) :

The existing Virginia statutes in question cannot be

squared against the Constitutional protections afforded all

citizens of the United States. “No bond is more precious

and none should be more zealously protected by the law as

the bond between parent and child.” Carson v. Elrod, 411

F. Supp. 645, 649; DC E.D. VA (1976)

The U.S. Supreme Court has held that “freedom of

choice in matters of family life is a fundamental liberty

interest” protected by the U.S. Constitution through

vigorous application of the protections of the Fourteenth

Amendment’s rights of due process. Santosky v. Kramer,

455 U.S. 745, 753 (1982); Smith v. Organization of Foster

Families, 431 U.S. 816 (1977). This fundamental liberty

interest, which the Court variously refers to as the right of

parental autonomy or the night of family integrity, is not

diminished because the nuclear family has been fractured

by divorce, separation, or if the parents never married. Lehr

v. Robinson, 463 U.S. 248, 261-62 (1983); See Caban v.

Mohammed, 441 U.S. 380 (1979). In emphasizing the

importance of the fundamental liberty interests at issue

here, the Supreme Court has opined that a parent’s right to

the “companionship, care, custody and management of his

or her children” is an interest “far more precious” that any

property right. May v. Anderson, 345 U.S. 528, 533 (1952)

Once a nght has been determined to constitute a

fundamental liberty interest, the government must be

extraordinarily circumspect in taking any action to impair

or diminish that interest.

REASONS FOR GRANTING THE PETITION

I. The Decision Below Denies Petitioner’s Right as a

parent to make decisions concerning the care, custody

and control of his child Without Due Process of Law,

Conflicts with Holdings of other State Supreme Courts

and with this Court’s Precedents.

The statute in controversy does not restrict judicial

discretion sufficiently to safeguard against violations of

fundamental liberty interests protected and guaranteed by

the United States Constitution. As written the Virginia

child custody continuing jurisdiction statute (Section 20-

108) is repugnant to the U.S. Constitution and inconsistent

with the pnor decisions of the U.S. Supreme Court.

A. Due Process Clause protects fundamental right

of Parents concerning the care, custody and

control of their children.

As applied here, the statute in controversy exceeded the

bounds of the Due Process Clause and unconstitutionally

infringes on the fundamental right of a parent to rear his

child. The statue places unlimited control in the hands of

the judge to continually change the custody of a child of

divorced parents, without regard to lack of any parental

petition, notice, or determination of fitness, and with the

only requirement that the judge consider “the

circumstances of the parents and the benefit of the

children.” Va. Code Section 20-108

This Court has explained that “the Due Process Clause

does not permit a State to infringe on the fundamental nght

of parents to make child rearing decisions simply because a

state judge believes a “better” decision could be made.”

Troxel v Granville, 530 U.S. 72, 73 (2000). The Fourteenth

Amendment concept of liberty provides an independent

right of the parent in the “custody, care and nurture of the

child,” free from state intervention. Prince v.

Massachusetts, 321 U.S. 166 (1944)

The statute is overbroad as written and does not limit

judicial discretion to conform with the overarching

protections of the parent-child relationships found in the

decisions of this Court. The result is that application of the

relevant Virginia statutes, as in the instant case, results in

wholesale violations of constitutionally guaranteed human

rights — namely, a parent’s freedom and n ght to the

custody, care and nurture of his minor child. These nghts

have been held by the United States Supreme Court to be

even more precious than any property nghts.

In the instant case appealed from, the Virginia Courts

held that Virginia Code Section 20-108 provides continuing

jurisdiction authority to schedule a hearing and then to

terminate custody and that it can be invoked solely on the

court’s own motion where there had been a final custody

order and no petition cr notice of controversy was given

nor was any evidence taken. This violated the Due Process

Clause of the Fourteenth Amendment and appellant

, parent’s fundamental liberty interest in maintaining

parental consortium with his child .

When a statue allows terminating child custody and

lacks sufficient safeguards to prevent application in such a

manner that it overrides a constitutionally guaranteed nght,

the negative costs to the individual appellant and to society

are too great for the Court to defer review of the question

presented.

B. The Supreme Courts of Alaska, Illinois,

New Jersey and Tennessee decided this same

question differently.

In the instant case the Court of Appeals of Virginia has

decided an important question in a way that conflicts with

the decisions of several of the states court of last resort.

The Supreme Court of the State of Alaska has rule on

the same question of when a tnal court can decided child

custody cases solely on its own motion in its opinion 7.M.C

v. $.A.C 858 P2d 315 (Alaska September 3, 1993). The

Alaskan Supreme Court decided that “Whether the trial

court, on its own motion, can find a change of

circumstances in a child custody case is a question of

law....In such cases, the tnal court may decide issues on its

own motion, as long as a party has raised them and both

sides have the opportunity to present full testimony.”

T.M.C v. S.A.C 858 P2d 315 (Alaska September 3, 1993).

(Emphasis added)

The Supreme Court of Illinois stuck down a sua

sponte award, despite statue permitting sua sponte action,

where custody was not an issue and trial court received no

testimony. Marriage of Birt..510 N.E.2d 559, 564 (Ill.

App. 1987) 515 N.E.2d 101 (Ill. 1987).

Similarly, the Supreme Court of New Jersey in Beck v.

Beck stressed that a sua sponte award of joint custody must

have support in the record in order to survive a challenge.

Though it allowed sua sponte awards, the court preferred

that the parties have the chance to address any new issues

that the trial court may raise. Beck v. Beck, 432 A.2d at 71

(N.J. 1981)

The Supreme Court of Tennessee has established

standards for transferring custody from one parent to the

other when no petition requesting a change of custody has

been filed and has held that “The risk of erroneous

deprivation of custody of one’s children is substantial

when no pleadings are filed informing the parent that a

change in custody is being contemplated by the court.”

Keisling v. Keisling 92 S.W.3d 374; 2002 Tenn. Further,

that court ruled that “The magnitude of a parent’s

constitutional nght to rear and have custody of his or her

children necessitates that notice satisfying the constitutional

requirements of due process be given where a change in

custody is a issue. id. at 374

C. Application of the Statue in controversy is

inconsistent with the prior decisions of the

U.S. Supreme Court.

In present case, the trial court’s 24 December 2003

Order was final and no change of circumstances subsequent

to that order was presented nor was father given notice of

any issue at controversy. Nevertheless, invoking the

10

continuing jurisdiction provided under Virginia Code

Section 20-108, the trial court sua sponte and solely on its

on motion , terminated father’s custody of his child by 20

May 2005 Order. The Court of Appeals ruled that this was

allowed under Virginia Code Section 20-108.

The Due Process Clause “provides heightened

protection against government interference with certain

fundamental rights and liberty interests.”” Washington v.

Glucksberg, 521 U.S. 720 (1997) “The liberty interest at

issue in this case - the interest of parents in the care,

custody, and control of their children - is perhaps the oldest |

of the fundamental liberty interest recognized by this

Court.” Troxel v Granville, 530 U.S. 57, 65 (2000). “[T]he

Due Process Clause of the Fourteenth Amendment protects

the fundamental right of parents to make decisions

concerning the care, custody and control of their children.”

Troxel, 530 U.S. at 66).

“The child is not the mere creature of the State; those

who nurture him and direct his destiny have the nght,

coupled with the high duty, to recognize and prepare him

for additional obligations.” Pierce v. Society of Sisters, 268

U.S. 535 (1925)

The parental night stems from the liberty protected by

the Due Process Clause of the Fourteenth Amendment. See,

e.g., Meyers v. Nebraska, 262 U.S. 390, 399, 401 (1923);

Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925);

Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Stanley

v. Illinois, 405 U.S. 645, 651-652 (1972); Wisconsin v.

Yoder, 406 U.S. 205, 232-233 (1972); Santosky v. Kramer,

455 U.S. 745, 753-754 (1982).

1]

CONCLUSIONS

In determining whether or not to grant certiorari the

Court need to only consider one threshold question:

Whether the Virginia Statute allowing custody of children

of divorced parents to be continuously changed solely on

the court’s own motion as set forth in the Virginia custody

statutes on its face, and as construed, may sometimes be

applied in derogation of the fundamental, Constitutionally

guaranteed liberty interest of parents in the “custody, care

and nurture of the child,” absent evidence of a clear and

compeiling state interest concerning the children’s health or

safety?

The constitutional protection against arbitrary state

interference with parental rights should be applied here.

Although Code Section 20-108 provides that the court, on

its own motion, can modify custody and has continuing

jurisdiction and authority to revise or alter custody decrees,

it cannot be used in circumstances where there has been no

petition made or allegations pled, no notice given, and no

evidence taken showing a change in circumstance.

Our government is one whose powers are limited by the

Constitution. Where statutes and common-law rules

conflict with long established constitutional principles of

due process of law, the latter must prevail. See generally

Powell v Pennsylvania, 127 U.S. 678, 686 (1888). The

authorizing Statute (Section 20-108 of the Code) allowing

the trial court’s sua sponte order changing father’s custody

as applied in this case violates the fundamental constitution

right to due process and cannot overnde the constitutional

requirement in Troxel.

12

The parent-child relationship is a protected

constitutional night and there exists a zone of privacy

around that relationship which only can be invaded when

the state possesses a sufficiently compelling reason to do

so. In the present case there is no such compelling reason.

Here there was an agreement between mother and

father for shared custody of their son by the 24 December

2003 final Order. There was no change of circumstances

since that order alleged or proven. There was no petition or

pleading by either parent raising any issue or controversy

before the court. Here, several months after the court Jost

jurisdiction over the matter and based on an in camera

review of a psychologist's report, the trial court invoked

continuing jurisdiction authority under Virginia Code

section 20-108 and decided to hold a custody hearing and

terminate father’s custody of his son. This violated due

process protections afforded both father and son.

Custody orders must bear sufficient respect for the

constitutional protections inherent in the parent-child

relationship. Where no material change in circumstance

affects a child’s welfare, the state lacks a sufficiently

compelling justification for modifying custody under

authority of Virginia Code section 20-108.

The petition for certiorari should be granted.

Respectfully submitted,

Joseph Michael Russell, Pro Se

6474 Oakwood Drive

Falls Church, Va. 2204]

703-209-9376

a-1

COURT OF APPEALS OF VIRGINIA

MEMORANDUM OPINION:

PER CURIAM

OCTOBER 3, 2006.

Present: Judges Kelsey, Petty and

Senior Judge Bumgardner

JOSEPH MICHAEL RUSSELL

v. Record No. 1469-05-4

NANCY LYNNE RUSSELL

JOSEPH MICHAEL RUSSELL

v. Record No. 2247-05-4

NANCY LYNNE RUSSELL

JOSEPH MICHAEL RUSSELL

v. Record No. 2585-05-4

NANCY LYNNE RUSSELL

JOSEPH MICHAEL RUSSELL

v. Record No. 3151-05-4

NANCY LYNNE RUSSELL

JOSEPH MICHAEL RUSSELL

v. Record No. 0204-06-4

NANCY LYNNE RUSSELL

JOSEPH MICHAEL RUSSELL

v. Record No. 1107-06-4

NANCY LYNNE RUSSELL

» Pursuant to Code § 17.1-413, this opinion is not

designated for publication.

FROM THE CIRCUIT COURT OF

FAIRFAX COUNTY

M. Langhorne Keith, Judge

Jane Marum Roush, Judge

a-2

(Fred M. Rejali, on briefs), for appellant.

(William B. Reichhardt; Colleen C. Sweeney; William B.

Reichhardt & Associates, on briefs), for appellee.

Joseph Michael] Russell (father) has filed six appeals

arising from custody, visitation, and contempt issues

concerning his relationship with Nancy Lynne Russell

(mother) and their minor son, Benjamin. Father presents

numerous questions on appeal, which will be addressed

within the body of this opinion. Both parties request

attomey’s fees on appeal. Upon reviewing the records and

briefs of the parties, we conclude that these appeals are

without merit. Accordingly,we summarily affirm the

decisions of the trial court. Rule 5A:27.

BACKGROUND

The parties married in September 1991. The

couple’s final Separation occurred in December 1992. On

May 27, 1993, Benjamin, their only child, was born. Their

divorce was finalized in 1995. :

The parties had informally agreed to a number of

visitation arrangements since their separation. When the

child was five years old, father and mother were living in

separate houses but were within walking distance of each

other, and the two agreed to split their time with him dunng

the week; this arrangement was finalized in a 2001 consent

order. In an effort to obtain sole custody of the child,

mother filed a petition to reopen and modify custody and

child support in 2003. The trial court appointed a guardian

ad litem (GAL) to represent the child’s interests.

The parties agreed to a modified custody order on

December 24, 2003. The order decreed that the parties

would attend counseling sessions with Dr. Victor Elion,

a-3

that the parties would make decisions concerning Benjamin

together, and that “[i}f the parties cannot reach an ?

agreement as to activities, they shall submit the issue to Dr.

Elion or other therapist, who shall make the decision.” The

order also stated that Dr. Elion would draft a report on the

progress of the family counseling for the court to review.

Dr. Elion delivered a written report to the GAL, who

asked him to draft a second report. On August 27, 2004,

Dr. Elion filed the second report. One of the report’s

recommendations was that the court reconsider mother’s

petition for modification of custody. The trial court held a

hearing in December 2004 to review Dr. Elion’s appraisal

of the situation. During that hearing the trial court ordered

that a hearing for visitation and custody be held on May 2

and 3, 2005. After the May 2005 hearing, at which Dr.

Elion testified, the court entered a custody order on May

20, 2005, granting sole custody of the child to the mother.

Subsequently, mother filed a motion asking the trial

court to require father to show cause why he should not be

held in contempt for violating the May 20, 2005 custody

order. The trial court determined, in a hearing pursuant to

this motion on November 29, 2005, that father had violated

the custody agreement on numerous occasions. The trial

court found father had interfered with mother’s visitation

rights during weeknights, during Thanksgiving break, had

supplied the child with locks to lock himself in his room in

mother’s house, and used the child to communicate with

mother on visitation issues. The trial court found father in

contempt of court, but suspended the jail sentence on

certain conditions.

A December 9, 2005 order, entered pursuant to a show

cause hearing initiated by mother, provided that mother

shall have exclusive custody of Benjamin until January 2,

2006. Mother testified at a January 20, 2006 hearing that on

December 17, 2005, father drove by and picked up

Benjamin in father’s vehicle while Benjamin was playing

a-4

in a neighbor’s yard. On January 23, 2006, the trial court

entered an order finding father in contempt, and

incarcerated him until he “submits a written plan as to how

he will comply with this court’s orders and obtain

assistance by a mental health professional.” Father failed to

comply with the trial court’s order; his counsel argued that

doing so could compromise his due process rights.

After a March 21, 2006 hearing, the tnal court issued

an order stating that, “Michael Russell shall be released

from jail. Pending Michael Russell’s submission to the

court of a plan to follow the Court’s Order al] visitation

shall be suspended. Michael Russell shal] have no contact

with Benjamin.” Within hours of being released, father

called Benjamin on the telephone. In a March 31, 2006

hearing, the court refused to grant father visitation, saying

“TY think it’s clear at this time in Ben’s life contact with his

father would be toxic.”

ANALYSIS

Record No. 1469-05-4, Questions Presented I] and II

Scheduling of Custody Hearing of May 2-3, 2005

1 Father has filed a “Motion for an Expedited Hearing, and

Request for Attorney’s Fees,” arguing that his appeals are

“extremely compelling” and that mother is “maliciously

prosecuting him.” We deny this motion because we find

father’s appeals to be without merit. Father has also filed a

‘Motion to Declare Orders Void or to Stay Orders Pending

Appeal,” arguing that the trial court had no junsdiction to

issue various orders. We deny this motion for reasons

provided in the analysis section.

Father contends there was no legal basis for Dr. Elion

to suggest a custody modification and that the tral court

erred in scheduling the May 2-3, 2005 custody heanng

when a final order had been entered in the matter on

December 24, 2003 and no petition had been filed for a

a-5

change in custody. Father also contends the trial court erred

in allowing Dr. Elion to testify and in considering his

testimony when he had not prepared a custody evaluation.

“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.” Farley v.

Farley, 9 Va. App. 328, 328, 387 S.E.2d 794, 795 (1990).

Specifically, Code § 20-107.2 provides that “[u]pon entry

of a decree providing . . . for a divorce . . . the court may

make such further decree as it shall deem expedient

concerning the custody or visitation and support of the

minor children of the parties.” Code § 20-108 states:

The court may, from time to time after decreeing as

provided in § 20-107.2 .. . on its own motion...

revise and alter such decree concerning the care,

custody, and maintenance of the children and make a

new decree concerning the same, as the circumstances

of the parents and the benefit of the children may

require.

“The court, in the exercise of its sound discretion, may alter

or change custody or the terms of visitation when

subsequent events render such action appropriate for the

child’s welfare.” Eichelberger v. Eichelberger, 2 Va. App.

409, 412, 345 S.E.2d 10, 12 (1986).

In this case, Dr. Elion’s recommendation to modify

custody provided the court with a sufficient basis to hold a

custody hearing. Furthermore, the trial court was within its

discretion to revise an existing custody agreement based in

part on Dr. Elion’s report and testimony. Dr. Elion is an

expert clinical psychologist who met with the parents and

the child numerous times. He found mother to be

responsive during the sessions, and observed that father

was unresponsive and uncooperative. He described the

parties’ relationship as a “case where there is, in terms of

harmonious communication or effective communication

that would be in the best interest of the child, as being

a-6

virtually non-existent.” One example Dr. Elion provided

was that father was unresponsive to any suggestion that the

child’s athletic activities should be reduced despite the fact

that these activities “took away time from other important

aspects of childrearing experiences.” The trial court, acting

in the best interests of the child, was free to hold a hearing

and modify custody based in part on Dr. Elion’s informed

opinion.

Record No. 1469-05-4, Questions Presented IT] and IV

Subpoenas

Father contends the trial court erred when it allowed

mother to present evidence by Dr. Elion when the doctor

had not provided to father’s counsel the first report he

drafted or the notes from his sessions with Benjamin to

father’s counsel] despite having been subpoenaed for these

documents.

In November 2004, both parties served Dr.Elion with a

subpoena duces tecum and a subpoena for a witness,

requesting access to the child’s medical records. In a

November 12, 2004 motion, the GAL stated that the

subpoenas duces tecum should be denied on the basis that

releasing the records was not in the child’s best interests, as

Dr. Elion explicitly told the child he would not release this

information to his parents.

A subsequent order from the tnal court provided that

“none of Benjamin’s psychological records are

discoverable.”

“The trial court’s decision, when based upon an ore

tenus hearing, is entitled to great weight and will not be

disturbed unless plainly wrong or without evidence to

support it.” “Certainly it is true that the legal nghts of

the parent should be respected . . . but the welfare of the

child is to be regarded more highly than the technical

legal rights of the parent.”

a-7

Green v. Richmond Dep’t of Soc. Servs., 35 Va. App. 682,

686-87, 547 s .E.2d 548, 550 (2001) (quoting L.C:S. v.

S.AS., 19 Va. App. 709, 724, 453 S.E.2d 580, 588 aia

(citations omitted)).

Both Dr. Elion and the GAL believed allowing the

parents access to Benjamin’s medical documents could

interfere with his counseling. The trial court was well

within its discretion,then, in ruling these records to be

undiscoverable in order to protect the welfare of the child.

Record No. 1469-05-4, Questions Presented V and VI

Admissibility of Expert Testimony

Father contends the tnal court erred in admitting Dr.

Elion’s report and giving substantial weight to his

testimony when he had been instructed only to report on the

status of family therapy. Father also contends the trial court

erred in admitting Dr. Elion’s report when it contained

gross misstatements.

The December 24, 2003 consent order states that “this

Order and the efficacy of the family counseling will be

reviewed by Dr. Elion . . . within five months from the

entry of this Order. A report regarding the efficacy and

progress of family counseling shall be prepared for review

by the Court and the Guardian ad litem.” Father argues that

Dr. Elion’s report and testimony went beyond the limited

scope assigned to him by the consent order and that the

report misstated the number and intensity of athletic

activities Benjamin was involved in and erroneously stated

that father had punched Benjamin in the chest.

As the trial court noted at the time, even if true,

father’s arguments merely go to the weight accorded Dr.

Elion’s report and testimony. “In determining whether

credible evidence exists, the appellate court does not retry

a-8

the facts, reweigh the preponderance of the evidence, or

make its own determination of the credibility of the

witnesses.” Wagner Enters., Inc. v. Brooks,12 Va. App.

890, 894, 407 S.E.2d 32, 35 (1991). “As long as evidence

in the record supports the trial court’s ruling and the trial

court has not abused its discretion, its ruling must be

affirmed on appeal.” Joynes v. Payne, 36 Va. App. 401,

416, 551 S.E.2d 10, 17 (2001).

The trial court did not abuse its discretion by weighing

Dr. Elion’s evidence as it did and in granting sole custody

to mother.

Record No. 1469-05-4, Question Presented VII

Admissibility of Father’s Deposition Transcript

Father contends the trial court erred in admitting the

entire transcript of his April 2005 deposition into evidence,

arguing that the deposition transcript contained hearsay and

was prejudicial to father.

“[A] party may, subject to the rules of evidence,

introduce an adverse party’s discovery deposition as

substantive evidence in his own case, whether the deponent

is present or not.” Home v. Milgrim, 226 Va. 133, 138, 306

S.E.2d 893, 895 (1983).

The party offering such a deposition may tender only

that part of it he considers relevant. If fairness requires

the admission of additional parts, a remedy is provided

by Rule 4:7(a)(5). The deposition is, of course, subject

to objection on the grounds of authenticity, relevancy,

non-compliance with the Rules of Court, or any failure

to comport with the rules of evidence.

Id.

Father asserts that the deposition transcript contains

irrelevant content and hearsay. He does not, however,

a-9

specify which sections of the transcript are objectionable.

The deposition transcript consists mainly of father’s

answers to questions about Benjamin’s extra-curricular

activities, his relationship to Benjamin and mother, and his

participation in family therapy. None of these subjects is

irrelevant to the issue of custody. In the absence of specific

examples of hearsay or irrelevance, then, this Court cannot

conclude the tnal court erred in admitting the deposition

into evidence.

Record No. 1469-05-4, Question Presented VIII

Judicial Bias

On April 29, 2005, Judge Keith presided over a hearing

and issued an order in a separate case in which father was a

party. Judge Keith’s order involved Benjamin’s mental

health records, and stated in part that these records were not

to be communicated to father. Based on this ruling, father

contends the tria] court had already formed an opinion as to

the admissibility of the child’s mental health records and

that the judge abused his discretion by relying on opinions

formed in this previous case when he granted mother sole

custody.

The fact that Judge Keith had presided over a hearing

in which father was a party that concerned Benjamin’s

mental health records does not, by itself, constitute an

abuse of discretion on his part. “‘Merely because a trial

judge is familiar with a party and his legal difficulties

through prior judicial hearings . . . does not automatically

or inferentially raise the issue of bias.’” Deahl v.

Winchester Dep’t of Soc. Servs., 224 Va. 664, 672-73, 229

S.E.2d 863, 867 (1983) (quoting Barry v. Sigler, 373 F.2d

835, 836 (8th Cir. 1967)).

a-10

“Frequently, in the disposition of cases, both civil and

criminal, a judge is called upon to form and express an

opinion upon a matter or issue which may come before

him in a subsequent proceeding arising out of the same

state of facts. The courts are practically unanimous in

the view that neither the forming nor the expression of

such a conclusion, under such circumstances,

disqualifies a judge in the subsequent matter. [Citations

omitted.]”

Justus v. Commonwealth, 222 Va. 667, 673, 283 S.E.2d

905, 908 (1981) (quoting Slayton v. Commonwealth, 185

Va. 371, 376, 38 S.E.2d 485, 488 (1946)).

Father alleges nothing more than that Judge Keith

previously issued a ruling involving the admissibility and

disclosure of Benjamin’s mental health records similar to

the one he issued in May of 2005; this fact alone is

insufficient to show Judge Keith abused his discretion.

Record No. 1469-05-4, Question Presented IX

Sufficiency Of The Evidence

Father contends the trial court should have given Dr.

Elion’s report almost no weight and there was little

evidence besides the report to support granting mother sole

custody of the child.

“The trial court’s decision, when based upon an ore

tenus hearing, is entitled to great weight and will not be

disturbed unless plainly wrong or without evidence to

support it.” Venable v. Venable, 2 Va. App. 178, 186, 342

S.E.2d 646, 651 (1986). Dr. Elion is a clinical psychologist

whom both parents designated to evaluate themselves and

their son. He conducted numerous clinical sessions with the

parents and with the child. The tnal judge did not abuse his

discretion in relying heavily on Dr. Elion’s testimony. The

record shows the tnal judge explained his decision-making

process in detail, and discussed the factors listed in Code§

a-1]

20-124.3 when deciding the best interests of the child. The

trial judge relied on many pieces of evidence in coming to

his decision, including testimony from the parties and e-

mails the parents had written concerning Benjamin. The

evidence was sufficient to support the trial court’s

decision.

Record No. 2247-05-4

Jurisdiction

On August 19, 2005, the trial court issued an order

Stating that the non-custodial parent is restricted from

visiting with Benjamin during the other parent’s half of the

summer with him. Mother contends this order merely

clarified a May 20, 2005 order. Father argues the order

modified the May 20 order and that, because the May 20

order was on appeal at the time, the tnal court no longer

had jurisdiction. Therefore, father argues, the August 19

order is void.

Provision E of the May 20, 2005 order states as

follows:

The Father shall have visitation for the first half of

summer break in 2005 and the Mother shall have the

second half. Father and Mother shall alternate their

respective halves each year thereafter. Each of the

parties shal] have regular visitation as-described herein

for the Father during the other parent’s one-half

summer visitation time. However, upon pnor notice of

dates exchanged no later than May | of each year, each

parent shal] be enutled to exclusive visitation during

their summer visitation for vacation and travel with

their son.

The provision is unclear. The first sentence states that

the child will stay with one parent for the first half of the

summer, and the other parent for the second half. The third

sentence, though, provides that each parent “shail have

regular visitation as descnbed herein for the Father dunng

a-12

the other parent’s one-half summer visitation time.” The

third sentence arguably contradicts the first, leaving

undefined and unclear the meaning of “regular visitation as

described herein for the Father.”

The trial judge, during the May 3, 2005 hearing, stated

that he simply intended to split the summer “down the

middle. And in 2005, the father will get the first half. The

mother wil] get the second half.” Then, during the August

17, 2005 hearing, the trial judge stated that he viewed the

ensuing August 19, 2005 order as a clarification: “I

certainly think I have the power to

clarify that today.” He also stated:

The [May 20, 2005] order that was—it’s inconsistent.

Each of the parties are [sic] to have regular visitation

during the other party’s one-half summer vacation

time. That wasn’t my order. That’s not what I intended

at al]. It was supposed to be . . . . One half is all dad’s;

one half is all mom’s, and there’s no visitation for the

other parent during that time.

Because the May 20, 2005 order contained inconsistent

and unclear statements, the August 19, 2005 order was a

clarification, not a modification, of the original order. As

such, the tna] court had the authority to enter the August

19, 2005 order.

Record No. 2585-05-4

Inconsistent Ruling of September 23, 2005 Order

Father filed a motion to unseal the file in this case. The

trial court entered an order on September 23, 2005, stating

‘““(Father’s] motion is denied because the Court lacks

jurisdiction to enter the order while the matter is on appeal.

Furthermore, no compelling reason was presented by the

defendant that the file should not be sealed.”

a-13

Father contends the court erred in ruling that the court

Jacked jurisdiction over the matter and then also ruling that

no compelling reason was presented to unseal the file. If a

court Jacks jurisdiction over a case, it must dismiss. The

sentence in the order addressing the fact that no

compelling reason was presented by the defendant is

merely dicta. See Lofton Ridge, LLC v.Norfolk S. Ry., 268

Va. 377, 383, 601 S.E.2d 648, 651 (2004) (An “alternative

justification for the ruling was unnecessary to the holding.

As such, it is dicta.”). We therefore find no reversible error

in the order.

Record Nos. 3151-05-4 and 0204-06-4,

Questions Presented ] and I] Contempt Orders

Jurisdiction

Father contends the November 29, 2005 order,

suspending a jail] sentence, and the January 23, 2006 order,

imposing a jail sentence, were modifications of the May 20,

2005 order,which was on appeal at that time, and, as such,

the trial court lacked junsdiction to enter those orders.

We do not accept the premise of father’s argument.

Under Code § 20-124.2(E), the tnal court has the

“continuing authority and jurisdiction to make any

additional orders” which are necessary to enforce a custody

order it has previously issued. The November 29, 2005 and

January 23, 2006 orders were not entered to modify the

May 20, 2005 order; instead, the court entered them to

enforce the May 20, 2005 order because of father’s failure

to comply. Code § 20-124.2(E) gives the court the authonty

to do so.

Bs

a-14

Service of Process

Father also argues that procedural defects invalidate

the November 29, 2005 order. Specifically, he claims lack

of service of process for the January 20, 2006 hearing.

However, father presents no arguments, case law, or

statutes to support his contention. “Statements unsupported

by argument, authority, or citations to the record do not

merit appellate consideration. We will not search the record

for errors in order to interpret appellant's contention and

correct deficiencies in a bref.” Buchanan v. Buchanan, 14

Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).

Sufficiency

Father also argues that the evidence was insufficient to

find him in contempt.A tral court “has the authority to hold

[an] offending party in contempt for acting in bad faith or

for willful disobedience of its order.” Carswell v.Matterson,

224 Va. 329, 332, 295 S.E.2d 899, 901 (1982). In a show

cause hearing, the moving party need only prove that the

offending party failed to comply with an order of the

trial court. Frazier v. Commonwealth, 3 Va. App. 84, 87,

348 S.E.2d 405, 407 (1986). The offending party then has

the burden of proving justification for his or her failure to

comply. Id.

Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d

666, 669 (1991).

At the November 29, 2005 hearing, father admitted

communicating with mother through the child and picking

up the child from school on Thanksgiving break. These

actions were clear violations of the court’s May 20, 2005

order and, therefore, were sufficient to find father in

contempt.

a-15

The December 9, 2005 order provided that “[t]he

mother shal] have exclusive custodial time during the

Winter/Chnistmas visitation time of 2005” and “[a]fter

January 2, 2006 the father shall resume every other

weekend visitation from 4:00 p.m. Friday to 7:30 p.m.

/ Sunday.” During the January 20, 2006 hearing, mother

testified that on December 17, 2005, without prior

notice, father took the child while he was playing in his

friend’s yard and kept him for the weekend. This action

was a direct violation of the December 9, 2005 order. The

trial court was within its discretion to find father “clearly in

contempt of this court’s orders.”

Father also claims the trial judge found father in

contempt not based on the violations alleged in mother’s

show cause motions, but based on father’s own testimony .

during the hearings. This is untrue, as the contempt order

was the result of a combination of the facts alleged in

mother’s show cause motions and her testimony, and in

father’s own testimony.

Record No. 1107-06-4, Questions Presented I and II

Modification of Visitation Orders

Father argues the trial court erred in modifying

visitation orders while the issue of visitation was on appeal.

We have addressed this issue in the section entitled

“Record No.1469-05-4, Questions Presented I and I].”

Record No. 1107-06-4, Questions Presented I] and IV

Void Orders

Father argues the tral court erred in finding him in

contempt of court for violating orders that were void. The

modification of the visitation orders was not void, though,

as we have already explained in “Record No. 1469-05-4,

Questions Presented I and II.”

a-16

Record No. 1107-06-4, Question Presented V

Conditions of Contempt

Father argues the trial court erred in finding that he had

not met the conditions of the contempt order. He presents

no arguments and cites no Jaw in support of this contention.

“Statements unsupported by argument, authority, or

citations to the record do not merit appellate consideration.

We wil] not search the record for errors in order to interpret

appellant’s contention and correct deficiencies in a brief.”

Buchanan, 14 Va. App. at 56, 415 S.E.2d at 239.

Record No. 1307-06-4, Questions Presented V]

Contempt Finding

Father contends that the trial court erred in finding him

in contempt and ordering him to submit a written plan as to

how he will comply with the court’s orders when father had

already submitted such a plan as part of a January 3, 2006

motion. Father also argues the court erred in continuing to

find father in contempt after his counsel explained that he

did not want to submit another plan for how to comply with

the court’s orders because he was concemed such a plan

would violate his due process rights and harm his ability to

appeal.

a-17

The trial court set out clear conditions for father’s

release from incarceration, instructing him to submit a

written plan as to how he would obey the court’s orders.

Father refused to do so. The “plan” he submitted on

January 3, 2006 included a provision that Benjamin could

visit father as often as he likes, as long as Benjamin is

retumed to mother’s house by 5:30 p.m. This provision was

a right the December 9, 2005 order did not grant father. In

addition, father continuously disobeyed the court’s orders,

from picking up Benjamin when the court order

forbade it in December of 2005, to refusing to submit a

plan as to how he would comply with the court’s orders, to

telephoning Benjamin within hours of being released from

incarceration. The trial court did not err, therefore, in

finding father in contempt, in incarcerating him, or in

refusing to grant him visitation with Benjamin.

Attorney Fees ’

Both parties have requested that this Court award costs

and attomey’s fees for matters related to these appeals.

Because father’s appeals were clearly without ment, we

deny his request and we award costs and attomey’s fees to

mother. We remand this case to the tral court

for a determination of attorney’s fees incurred in

responding to these appeals. See O’ Loughlin v.

O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100

(1996).

CONCLUSION

For the reasons stated, we summarily affirm the

decisions of the tral court. Rule 5A:27. We remand to the

trial court for a determination of the attommey’s fees

incurred by mother in these appeals.

Affirmed and remanded.

VIRGINIA:

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

NANCY W. RUSSELL, COMPLAINANT

VS. CHANCERY NO.: 131989

JOSEPH M. RUSSELL, DEFENDANT.

This matter came to be heard on the 20" day of

December 2004, on the motion this matter be reviewed by

the court including Dr. Elion’s report.

Upon the matters presented to the Court at the hearing, it

is hereby

ADIUDGED, ORDERED, and DECREED as follows:

1) Dr. V. Elion’s August 2, 2004 report be made available

to the parties and counsel.

2) Alfred Carr is relieved as guardian ad litiem.

3) This matter is set for a hearing on visitation/custody for

March 1 & 2, 2005.

4) Discovery can be conducted, however, none of

Benjamin’s psychological records are discoverable.

Entered this 20 day of December, 2004.

Signed: M. Langhome Keith

Circuit Court Judge

Counsel for Defendant Seen and Objected to:

1) for the reasons stated in the record;

2) As a denial of Defendant’s due process;

3) ‘As to denial of access to his son’s therapy records; and

4) As there is no pending petition since the final order of

December 2003 from which to measure change of

circumstance.

a-19

VIRGINIA:

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

NANCY W. RUSSELL, COMPLAINANT

VS. CHANCERY NO.: 131989

JOSEPH M. RUSSELL, DEFENDANT.

CUSTODY ORDER

THIS CAUSE came before the Court on May 3, 2005.

Upon the evidence received by the Court, the argument of

counsel, and the consideration of the statutory factors

regarding the best interests of the child, Benjamin Russell,

as more specifically set out in the transcript of the Court’s

determinations which is incorporated herein by reference,

IT IS HEREBY ORDERED THAT:

1. The Mother shall have sole legal and physical -

custody of the child. In all major decisions the Mother wil]

consult with the Father, but the Mother retains the final

authority to make those decisions.

2. The Father will have visitation with the child on the

following terms:

A.Every other weekend the Father will have

visitation. Visitation will begin on Friday after school and

end Sunday at 7:00 p.m. Any visitation weekend which is

followed by a federal Monday or Friday holiday will be

extended through that Monday or Friday.

B.The Father should have dinner with the child one

night a week.

C.The child can continue to visit between Father and

Mother’s house as often as he wants to, but he must spend

the night with Mother when it is not the Father’s visitation.

In that regard, unless otherwise specifically agreed or the

Father’s dinner night, the child shall return to the Mother’s

house by 8:00 p.m. on weekdays.

a-20

D.The Father shall have winter break in 2005 and

each odd-numbered year thereafter; Thanksgiving break in

2006 and each even-numbered year thereafter, and spring

break in 2007 and each odd-numbered year thereafter.

E.The Father shall have visitation for the first half of

summer break in 2005 and the Mother shall have the

second half. Father and Mother shall alternate their

respective halves each year thereafter. Each of the parties

shall have regular visitation as described herein for the

father during the other parent’s one-half summer visitation

time. However, upon prior notice of dates exchanged no

later than May 1 of each year, each parent shall be entitled

to exclusive visitation during their summer visitation for

vacation and travel with their son.

1) The Mother shall! have the child with her for

the first three days of summer break and for the three days

prior to the start of the school year.

2) Any overnight camp attended by the child

during summer break cannot exceed three weeks in length.

If the time spent at the camp impinges on one parent’s

visitation time, then the other parent will give up visitation

time so that the parents’ time is equalized. If the camp

impinges on one parent’s time then 60 day written

advanced notice shall be given.

3) If the child participates in therapy, then neither

parent shall discuss what goes on in that therapy with the

child.

4) There is to be no ADHD testing until

recommended by the child’s therapist.

5) Any tournaments or other similar organized

activity attended by the child must be agreed to by the

Mother, irrespective of whether it occurs during the

Father’s visitation time.

a-21

6) Pursuant to Section 20-124.5 of the Code of

Virginia, either party who intends to relocate his or her

residence shall give a thirty-day advance written notice of

any such intended relocation and of any intended change of

address, said notice being given to both the other party, the

other party’s attorney, and to his Court. Both parties should

provide the other with the right of first refusal to take care

of Ben when they are out of town.

7) Each parent shall assist the other in gaining

full access to report cards and other school records as well

as medical, dental and counseling records and any other

documents concerning the child in accordance with Section

20-124.6 of the Code of Virginia.

8) The Court’s findings and rulings set forth in

the attached transcript are incorporated herein by reference

and made a part of this Order.

THIS ORDER IS FINAL.

ENTERED THIS 20 DAY OF May, 2005.

Signed: M. Langhorne Keith

JUDGE

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Wednesday the

20" day of December, 2006.

Joseph Michael Russell, Appellant,

against Record No. 062213

Court of Appeals Nos. 1469-05-4, 2247-05-4

2585-05-4, 3151-05-4, 3151-05-4, 0204-06-4,

and 1107-06-4

Nancy Lynne Russell], Appellee.

From the Court of Appeals of Virginia

Finding that the decision of the Court of Appeals does

not involve (1) a substantial constitutional question as a

determinative issue, or (2) matters of significant

precedential value, the Court dismisses the petition for

- appeal filed in the above-styled case. Code 17.1-410(A) (3)

and (B).

A Copy,

Teste:

Patricia L. Harrington, Clerk

By:

Deputy Clerk

a-23

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Friday the 9"

day of March, 2007.

Joseph Michael Russell, Appellant,

against Record No. 062213

Court of Appeals Nos. 1469-05-4, 2247-05-4

2585-05-4, 3151-05-4, 3151-05-4, 0204-06-4,

and 1107-06-4

a

Nancy Lynne Russell, Appellee.

Upon a Petition for Rehearing

On consideration of the petition of the appellant to set

aside the judgment rendered herein on the 20" day of

December, 2006 and grant a rehearing thereof, the prayer

of the said petition is denied.

A Copy,

Teste:

Patricia L. Harrington, Clerk

By:

Deputy Clerk

a-24

TRANSCRIPT Excerpts of Hearing December 3, 2004:

Mr. Schinstock (Counsel for Defendant): “There is no

petition that is pending before this Court. The only pleading

that is before this Court at this time is the measure of a

material change in circumstances to 12/24/03. No other

pleading is before the Court. None. Dr. Elion is supposed to

issue a report at which point we may or we may not know

whether there’s controversy, relevancy, something from

which I can do discovery responses, something from which

I can begin to prepare a number of things to include cross

examination of Dr. Eion. But there’s no other pleading

before the Court that would define what Ms. O’Brien

[Counsel for Complainant] said about there being an issue

regarding the child, there being an issue between the

parties. None at all. They resolved that. That’s what the

12/24/03 order is.” [TR p.12 113-20] “And certainly I don’t

like due process arguments. They’re usually the refuge of

the last resort, but in this instance I think that would be

truly a denial of notice of what’s before the Court.” [TR

p.15 1117-20] “I sincerely do not know what’s at issue

between the parties. I came into this case. I had this order.

It’s clearly a final order. It doesn’t preserve in any way this

issue as described by Ms. O’Brien. It doesn’t call itself a

pendente lite order. I have a final order from which a

material change in circumstance is going to be measured,

so I do not know what’s in controversy.” [TR p.17 118-16}

Ms. O’Brien (Counsel for Complainant): “[{T]he issues

before the Court are what was in the original petition.

Another petition should be filed. Another petition can be

filed.”[TR p.18 113-6]

a-25

TRANSCRIPT Excerpts (page 3 lines 4-23)

Hearing December 20, 2004:

THE COURT: Well, it is obvious to me after reading Dr.

Elion’s report that custody in this matter is going to have to

be revisited, and sooner rather than later. It just so happens

I’m calendar contro] this week, so I can give you a date.

Mr. Schinstock [Counsel for Defendant]: Judge, in fairness

to my client, I have no idea why that would be sooner

rather than later, let alone the amount of time that it would

take at this point in time. We do not know what is in that

report. Dr. Elion hasn’t seen this child since April; so, I’m

not exactly understanding the urgency, in any event.

THE COURT: Well, the mother filed for a change in

custody over a year ago.

Mr. Schinstock: And an order was entered — a final order.

The only thing that was before this Court was the review

for the efficacy and progress of family counseling.

THE COURT: J am setting this down to be heard on

custody.