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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0527%3A1. Public record. Not legal advice.