Cloutier v. Queen

• Decision Date: 08 May 2001
• Docket Number: Record No. 2018-00-4.
• Citation: 545 S.E.2d 574,35 Va. App. 413
• Court: Virginia Court of Appeals
• Parties: Leslie J. CLOUTIER v. Thomas W. QUEEN.

545 S.E.2d 574

35 Va. App. 413

Leslie J. CLOUTIER v. Thomas W. QUEEN.

Record No. 2018-00-4.

Court of Appeals of Virginia, Alexandria.

May 8, 2001.

Richard C. Shadyac, Jr. (James C. Roberts, Richmond; Feldesman, Tucker, Leifer, Fidell & Bank, LLP; Mays & Valentine, L.L.P., on briefs), for appellant.

Joseph A. Condo (Condo & Masterman, P.C., on brief), for appellee.

Present: FITZPATRICK, C.J., ELDER, J., and OVERTON, Senior Judge.

FITZPATRICK, Chief Judge.

In this appeal, Leslie J. Cloutier (mother) contends the trial court erred in its decision denying her request to relocate. Finding no error, we affirm.

I. BACKGROUND

In accordance with familiar principles, we view the evidence in the light most favorable to the prevailing party below. See Brown v. Brown, 30 Va.App. 532, 534, 518 S.E.2d 336, 337 (1999). Mother and Thomas W. Queen (father) were married December 10, 1988 and have two minor children. The parties separated July 1, 1998 and reached an agreement providing for joint legal custody of their children. The agreement provided:

a. The parties shall have joint legal custody of their minor children, ZACHRY QUEEN, born August 11, 1992, and ALISON QUEEN, born August 28, 1994, who shall reside with the parties as set forth below:

b. Except as provided in subparagraph c, below, the Husband shall have residential time with the children on the following four-week rotation:

Week One: From Thursday at or before 5:30 through Sunday at 5:30 p.m.

Week Two: From Thursday at or before 5:30 through Saturday at 9:30 a.m.

Week Three: From Thursday at or before 5:30 through Monday at 9:30 a.m.

Week Four: From Thursday at or before 5:30 through Saturday at 9:30 a.m.

c. On Fridays, the children shall reside with the Wife from 9:00 a.m. to 5:30 p.m., unless the Husband is off work that day due to emergency weather conditions, in which case the children shall remain with him.

d. At all times not otherwise specified above, the children shall reside with the Wife.

The agreement also provided for vacation and holiday time with both parents. A final decree of divorce was entered October 8, 1999 that incorporated the joint custody agreement. At the time of divorce, both parties lived in Fairfax County, where they had lived for most of their marriage.

Mother married Scott Livingston (Livingston) on November 20, 1999. Livingston, an attorney, lives and works in Mount Lebanon, Pennsylvania. On January 18, 2000, mother filed a "Motion for Relocation and to Modify Custodial Access" so she could move with her children to Livingston's residence in Pennsylvania. Father filed a cross-motion requesting that the trial court deny mother's request to relocate and grant him primary residential custody of his children.

On May 9 and 10, 2000, the trial court held a hearing on the relocation request and the request to change primary custodY of the children. At the conclusion of the hearing, the chancellor found that "it is in the best interests of these children to grant [mother's] motion to allow her to move" to Mount Lebanon. On May 26, 2000, father filed a motion to reconsider the court's ruling. On June 28, 2000, via telephone conference call, the chancellor denied father's motion to reconsider. On June 30, 2000, the chancellor entered an order disposing of all pending issues and granted mother's request to relocate. On July 5, 2000, the chancellor vacated the decree of June 30, 2000 and scheduled a July 7, 2000 hearing to reconsider the matter. On July 6, 2000, mother, at the court's request, filed a memorandum in opposition to father's motion to reconsider. On July 7, 2000, the trial court, after further hearing and argument, reversed its prior ruling, stating:

When I ruled in May, I said it was because I found that it was in the best interest of these children to be allowed to move.

But as I have given that more thought than I would like to share with the parties since then, I believe that I wrongly equated what was in Ms. Cloutier's best interest with what's in the children's best interest.

And I have no doubt that it's in her best interest for the children to be allowed to move, but I also have no doubt that it's in the best interest of the children to remain here under a parenting arrangement that is akin to that which the parties have established.

Thus, the trial court ordered that the status quo remain unchanged and denied both the mother's motion to relocate and the father's motion to transfer primary residential custody to him.

On July 18, 2000, mother filed a motion to reconsider this ruling. The trial court denied mother's motion on July 24, 2000 and entered a final order on August 11, 2000, which rescinded and vacated the court's initial decision to grant mother's motion for relocation, granted father's motion to reconsider and ultimately denied mother's motion for relocation. Mother appeals from the trial court's August 11, 2000 decree.

II. TRIAL COURT'S VACATION AND RECONSIDERATION OF THE JUNE 30, 2000 DECREE

Mother contends that the chancellor erred by vacating the initial June 30, 2000 decree and entering a later final order reversing his original decision. She argues that the chancellor lacked authority to modify the initial June 30, 2000 decree absent a finding of "changed circumstances." We disagree.

Rule 1:1 provides that, "[a]ll final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified', vacated, or suspended for twentyone days after the date of entry, and no longer." (Emphasis added.) If the trial court does not enter an order suspending or vacating the final order within twenty-one days, the trial court thereafter is divested of jurisdiction over the matter. See Vokes v. Vokes, 28 Va.App. 349, 357-58, 504 S.E.2d 865, 869 (1998). Rule 1:1 allows the trial court to correct or change an order within the twenty-one-day window whenever circumstances require it. This is not a new custodial proceeding, requiring a threshold showing of a material change in circumstances, but rather it is a continuation of the underlying hearing and disposition.¹See Smith v. Smith, 18 Va.App. 427, 432, 444 S.E.2d 269, 273 (1994) (which required no change of circumstances to modify a final decree if done within the twenty-one-day period allowed by Rule 1:1). To hold otherwise would as stated by the chancellor require "an abdication of what I think I'm charged with doing as a judge." The chancellor must have the ability to enter a timely order embodying a correct resolution of the case.

In the instant case, the chancellor's original decree was entered June 30, 2000 and vacated July 5, 2000. Therefore, the chancellor timely vacated the decree in accordance with Rule 1:1. The decision whether to reconsider the decree within the twentyone-day time period lies within the sound discretion of the chancellor. See Howe v. Howe, 30 Va.App. 207, 213, 516 S.E.2d 240, 243 (1999). Thus, the chancellor, after reflection, determined that his initial decision was erroneous and timely corrected it in the same proceeding. Therefore, we hold that the chancellor did not abuse his discretion in vacating the June 30, 2000 decree that allowed wife's relocation with the parties' children.²

III. DENIAL OF DUE PROCESS

A. "LOCAL RULES"

Mother next contends she was denied due process when the trial court reconsidered its original ruling without giving her an opportunity to respond to father's motion to reconsider, thus violating "local rules" set out in The Fairfax Circuit Court Manual. The cited sections of the "local rules" provide that "[n]o response to the Motion for Reconsideration should be filed by the original prevailing party unless and until a response is requested by the Judge," and "Mt' the Judge may reconsider the original ruling, the Judge will request a response to solely the issue or issues the Judge may reconsider." (Emphasis in original.)

As a preliminary matter, Code § 8.01-4 provides that "local rules" are limited to "those rules necessary to promote proper order and decorum and the efficient and safe use of the courthouse facilities and the clerks' offices." "Local rules" cannot affect the substantive rights of the litigants. In line with these strictures, the Foreword to the Fairfax Circuit Court Manual specifically states that:

the procedures set out herein are not Rules and cannot provide a basis for the imposition of sanctions, nor are they intended to create additional pitfalls for unwary practitioners, especially those who do not often practice before our Court. Thus, the judges will retain discretion not to enforce a procedure strictly if the judge believes it would be unjust to do so under the circumstances of that specific case.

* * * * * *

[They are] not Rules of the Court.

Furthermore, on July 6, 2000, mother filed a response to father's motion to reconsider, and the chancellor acknowledged that appellant "filed an opposition to [the] motion to reconsider, which I received and have reviewed." Appellant was also given an opportunity to make oral argument to the trial court concerning the reconsideration. Thus, we find no lack of due process in mother's ability to present and argue her case. She was provided with and took advantage of the opportunity to respond to the motion for reconsideration, and the suggested procedures set out in the Fairfax Circuit Court Manual impaired no substantive or procedural due process right.

B. REMEDY NOT REQUESTED BY THE PARTIES

Next, mother argues that the trial court erred by "impos[ing] a custody schedule on the parties that neither party" requested.³ However, father, in his response to mother's motion, "pray[ed] that the [motion] be denied" and mother, in her answer and opposition to father's cross-motion, requested that the trial court "deny the Defendant's Cross-Motion to transfer primary custody of the children to the Defendant." Thus, each party was aware and on notice that the other party...