Rhodes v. Lang

• Decision Date: 08 November 2016
• Docket Number: Record No. 0263–16–2.
• Citation: 66 Va.App. 702,791 S.E.2d 744
• Court: Virginia Court of Appeals
• Parties: Melanie Lynn Rhodes v. Delmar Lang and Susan Lang.

66 Va.App. 702

791 S.E.2d 744

Melanie Lynn Rhodes

v.Delmar Lang and Susan Lang.

Record No. 0263–16–2.

Court of Appeals of Virginia, Richmond.

Nov. 8, 2016.

Rick A. Friedman, II (Kimberley L. Fitzgerald ; Sarah J. Conner; Friedman Law Firm, P.C., on brief), for appellant.

No brief or argument for appellees or guardian ad litem.

Present: BEALES, ALSTON, JJ., and HALEY, Senior Judge.

BEALES

, Judge.

Melanie Lynn Rhodes (“mother”) appeals the circuit court's January 13, 2016 final visitation order. The circuit court's order modified an Ohio visitation order that had previously awarded visitation with mother's four minor children to Delmar and Susan Lang, the children's paternal grandparents. Mother presents two assignments of error—both of which assert that the circuit court erred “by failing to apply Virginia's ‘actual harm’ standard on a motion to amend” the paternal grandparents' visitation with the children. For the following reasons, we affirm the circuit court.¹

I. BACKGROUND

Under settled principles of appellate review, we view the evidence in the light most favorable to the grandparents, as the party prevailing below, Chretien v. Chretien , 53 Va.App. 200, 202, 670 S.E.2d 45, 46 (2008)

, and we grant to the Langs “all reasonable inferences fairly deducible therefrom,” Anderson v. Anderson , 29 Va.App. 673, 678, 514 S.E.2d 369, 372 (1999). So viewed, mother married Kyle Lang (“father”) on June 1, 2002. Mother and father had four children together in Ohio during the course of their marriage. Mother and father divorced on July 20, 2010. Father later died unexpectedly in a farming accident on May 20, 2011.

After the divorce but prior to their son's death, the Langs continued to have weekly contact with the children. After father's death, however, the relationship between mother and the Langs began to deteriorate. Eventually, mother sent the Langs a “No Trespass Letter” dated November 30, 2011. The letter informed the Langs that they were prohibited from entering the farmhouse property and directed the Langs not to communicate with mother in any fashion. After she sent that letter, mother prevented the Langs from having any visitation with their late son's children. The Langs eventually filed a complaint on June 11, 2012 in Ohio requesting visitation with their grandchildren.

The Langs' complaint for visitation was heard by a magistrate in Ohio. The Ohio magistrate appointed a guardian ad litem to represent the interests of the minor children. The guardian ad litem recommended that the Langs have visitation with their grandchildren. The magistrate's decision was entered as an order on June 6, 2013, and granted the Langs visitation once a month for four hours in mother's home for the first six months. After six months, the visits were to take place in the Langs' home or at a place of their choosing. The order emphasized that “the primary purpose of the visits is to reconcile the relationship between Delmar and Susan and the children.” The court also stated that it “trust[ed] Melanie to make the proper decision to facilitate reconciliation.” The order specified that visitation may be increased by agreement of the parties.

Mother appealed the magistrate's decision to the Wayne County Court of Common Pleas. That court affirmed the magistrate's decision by an order entered on November 5, 2013. Mother then appealed that order to the Ninth District Court of Appeals in Ohio. In December 2013—only a month after the Ohio trial court's order deciding against her and during the pendency of her appeal to the Ohio Court of Appeals, mother relocated the children to Prospect, Virginia. The Langs continued to reside in Ohio. On September 24, 2014, the Ninth District Court of Appeals in Ohio affirmed the visitation orders of the lower courts.²

At mother's request, the Prince Edward County Juvenile and Domestic Relations District Court (“the JDR court”) registered the final Ohio visitation order. Mother then filed a motion to amend the Ohio order on January 5, 2015. Mother's motion requested the following changes: “No specific visitation provisions for the grandparents.” The JDR court appointed Elizabeth Taylor Carter as guardian ad litem for the children. At a June 17, 2015 hearing, the JDR court awarded the Langs visitation rights with the children. Specifically, the JDR court ordered that the first scheduled visitation would take place on June 18, 2015 in Virginia. The August 27, 2015 JDR court order also awarded visitation to the Langs on or around specific holidays. Pursuant to that order, all subsequent visitations would take place in Ohio—or in any state through which the parties traveled to facilitate visitation.

Mother appealed the JDR court order to the circuit court. Prior to the final hearing in the circuit court on December 15, 2015, the parties filed memoranda of law on the issue of the proper legal standard to be applied to mother's motion to amend the previous visitation order from Ohio. The parties all agreed that mother's relocation of the children to Virginia was a material change of circumstances. The Langs argued that the proper standard requires a showing of a material change of circumstances such that a change in visitation would be in the best interests of the children. Mother asked the circuit court to apply Virginia's “actual harm” standard, which would require the grandparents to show that the children would suffer actual harm if they were denied visitation. The circuit court agreed with the Langs and applied the material change in circumstances plus the best interests of the children standard.

Upon the conclusion of the evidence, the circuit court found that it was in the best interests of the children to have set visitation with the Langs. Referring to the unfortunate and untimely death of father, the circuit court noted how important it will be for the children to receive the “love and support of their paternal family.” On December 15, 2015, the circuit court ordered visitation as set forth in the JDR order. The circuit court also found mother to be “in contempt of court for failure to abide by and comply with the Order of the Prince Edward Juvenile and Domestic Relations Court dated August 27, 2015.” The basis of the contempt was mother's repeated efforts to prevent the grandparents from exercising their visitation rights, noting that mother “chose to simply ignore” the Langs' attempts to set up visitation. The circuit court found that mother had demonstrated an “unwillingness to cooperate in any way, shape or form to comply” with prior court orders. Despite stating that the circuit court did not have “any confidence that [mother was] going to comply with any of these orders,” the court suspended any sanctions for her contempt pending a hearing on January 13, 2016 to determine if mother had purged herself of the contempt. Finally, the circuit court ordered mother to pay $1,178 in attorney fees and costs to the Langs.

By order entered January 27, 2016, mother was found to be in contempt of the circuit court's prior orders. Based on that finding of contempt, the circuit court ordered mother to report to Piedmont Regional Jail on March 25, 2016. The order stated that mother “may purge the contempt and not be required to report to jail by engaging in the ordered counseling, and fully encouraging and ensuring the minor children engage in the ordered counseling.” The record contains no evidence of any further proceedings in the circuit court.

II. ANALYSIS

A. STANDARD OF REVIEW

On appeal, mother's assignments of error challenge the legal standard the circuit court applied to her petition to modify visitation. The circuit court's conclusions as to questions of law are subject to de novo review. Rusty's Welding Serv. v. Gibson , 29 Va.App. 119, 127, 510 S.E.2d 255, 259 (1999)

.

B. PETITION TO MODIFY VISITATION

Mother first asserts that the circuit court “committed reversible error by failing to apply Virginia's ‘actual harm’ standard on a motion to amend” the parental grandparents' visitation with the children. She also contends that the failure to apply the “actual harm” standard “violated Appellant/Mother's constitutionally protected parental rights.”³

As the United States Supreme Court has observed, 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 interests recognized by this Court.” Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000)

. “The 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.” Id. at 66, 120 S.Ct. at 2060. In order to protect those rights, mother is correct that Virginia courts have found that “in a dispute between a fit parent and a non-parent ... the best-interests test should be applied only if the trial court first finds ‘an actual harm to the child's health or welfare without such visitation.’ ” Griffin v. Griffin , 41 Va.App. 77, 83, 581 S.E.2d 899, 902 (2003) (quoting Williams v. Williams , 256 Va. 19, 22, 501 S.E.2d 417, 418 (1998) ).

The analysis, however, does not end there because this appeal, unlike the appeals in Griffin

or Troxel, concerns mother's petition to amend an existing visitation order—not an initial determination of the parties' visitation rights with the children. “In matters of custody, visitation, and related child care issues, the court's paramount concern is always the best interests of the child.” Farley v. Farley , 9 Va.App. 326, 327–28, 387 S.E.2d 794, 795 (1990)

. When a party has filed a petition to modify an existing visitation order, the courts must apply the Supreme Court's two-pronged test enunciated in Keel v. Keel , 225 Va. 606, 303 S.E.2d 917 (1983), to determine whether modification of that order is proper. That test asks, “first, has there been a change in circumstances since the most recent custody...