D'AMBROSIO v. D'AMBROSIO

• Decision Date: 29 March 2005
• Docket Number: Record No. 1182-04-4.
• Citation: 45 Va. App. 323,610 S.E.2d 876
• Parties: James J. D'AMBROSIO, Jr. v. Debra Maureen Fowler D'AMBROSIO.
• Court: Virginia Court of Appeals

610 S.E.2d 876

45 Va. App. 323

James J. D'AMBROSIO, Jr. v. Debra Maureen Fowler D'AMBROSIO.

Record No. 1182-04-4.

Court of Appeals of Virginia, Alexandria.

March 29, 2005.

David D. Masterman (Masterman & Graham, P.C., on briefs), McLean, for appellant.

J. Patrick McConnell (David Zangrilli, Jr.; Odin, Feldman & Pittleman, P.C., on brief), Fairfax, for appellee. Present: HUMPHREYS and FELTON, JJ., ANNUNZIATA¹, S.J.

HUMPHREYS, Judge.

Appellant James J. D'Ambrosio, Jr. shares joint legal and physical custody of his child, S.F., with appellee Debra M. Fowler, his former wife. D'Ambrosio appeals an order entered by the trial court, contending that the trial court erred when it: (1) modified an earlier custody decree by granting primary medical decision-making capacity to Fowler; and (2) entered an injunction prohibiting D'Ambrosio from making "defamatory comments" about Fowler to "third parties."² For the reasons that follow, we affirm the modification of the custody decree, but we reverse and vacate the injunction prohibiting D'Ambrosio from making "defamatory comments" about Fowler to "third parties." Also, we deny Fowler's motion for attorney's fees for this appeal, and we remand for the sole purpose of allowing the trial court to recalculate the award of attorney's fees below.

I. BACKGROUND

D'Ambrosio and Fowler married on September 22, 2000. Although Fowler was pregnant with S.F. at the time, the parties separated approximately one month later. Fowler returned to New York to live with her parents, and D'Ambrosio continued to reside in Fairfax. The parties subsequently divorced.

Fowler gave birth to S.F. on May 30, 2001. After a paternity test verified that D'Ambrosio was S.F's biological father, D'Ambrosio filed for visitation, which began in September 2001. On March 5, 2002, the parties were awarded joint legal and physical custody of S.F. Under the current arrangement, S.F. alternates between living in New York with her mother and living in Virginia with her father, spending two weeks at a time with each of her parents.

In early November, Fowler scheduled an eighteen-month checkup with S.F.'s pediatrician in New York. The check-up in New York was to occur on November 29, 2002. Upon learning of the appointment in New York, D'Ambrosio scheduled an eighteen-month checkup with a pediatrician in Virginia that was to occur on November 11, 2002, three weeks before the examination already scheduled in New York. As a result, S.F. received two eighteen-month checkups from two separate pediatricians. The parties also had disagreements about whether S.F. should receive a flu shot and whether she was allergic to certain food items.

Also in the fall of 2002, Fowler learned that, for the past year, D'Ambrosio and his mother had apparently been calling S.F. by a different first name. Fowler then sent a series of letters, through counsel, requesting that D'Ambrosio stop calling S.F. by that name. The first letter, sent on November 11, 2002, indicated that Fowler had learned that D'Ambrosio and his mother were referring to S.F. by another name, and requested that they stop doing so because it would "have significant emotional and psychological impact on [S.F.] if it continues." In the letter of November 11, Fowler also noted that there had been some miscommunications concerning S.F.'s appointments with her pediatrician. Fowler observed that "[h]aving two pediatricians is certainly not in [S.F.'s] best interest," and she requested that D'Ambrosio cancel the eighteen-month checkup with the Virginia pediatrician.

In a letter of response, also dated November 11, 2002, D'Ambrosio's counsel failed to substantively address these concerns, merely asserting that "all reports from your client must be taken with a grain of salt."

Fowler's counsel sent a follow-up letter on December 16, 2002, indicating that he still had not received a response on, inter alia, the "[p]ediatrician issue." The follow-up letter also indicated that, "[b]y your lack of response, I assume that your client is continuing to do the things set forth in [the] previous correspondence...."

On July 17, 2003, Fowler filed a motion for injunctive relief, seeking to prohibit D'Ambrosio from calling S.F. by a different first name, and also requesting attorney's fees and "such other relief as equity deems just." Because D'Ambrosio testified at trial that he was no longer referring to S.F. by a different name, Fowler's motion for an injunction on that ground was ultimately denied. That ruling is not at issue on this appeal. Among the supporting allegations in the motion for injunctive relief, however, Fowler asserted as follows:

The mother has encouraged the father to get a pediatrician in Virginia for emergency purposes in case there is a problem with [S.F.] while she is in Virginia. The mother has kept the father informed of appointments with pediatricians in New York. For example, on November 3, 2002, the mother informed the father that [S.F.] had an eighteen month check up appointment which was scheduled in New York. The date of the appointment was given to the father so he could make appropriate plans to be in attendance at the eighteen month checkup should he desire. Despite the fact that the father knew an eighteen month appointment was scheduled, he scheduled an eighteen month appointment for [S.F.] in Virginia prior to her appointment in New York. This was not an emergency appointment. The father knew that the mother could not travel to Virginia for this appointment on such short notice. At the eighteen month appointment, apparently, there was a real problem about whether [S.F.] was to receive shots. There was a miscommunication that could have created a significant problem for [S.F.]. While certainly [S.F.] needs a pediatrician in Virginia, she has since her birth been treated in New York by a pediatrician and [S.F.] should have one primary pediatrician to cover all shots and regular issues involving [S.F.].

(Emphasis added).

In a cross-motion, D'Ambrosio did not substantively address Fowler's request for injunctive relief, instead requesting: (1) a modification of custody decree provisions concerning the time, date, and place for the exchanges; (2) an order compelling enforcement of the portion of the custody decree involving telephone conversations with S.F.; (3) an order changing S.F.'s last name to "D'Ambrosio"; and (4) an injunction to prohibit Fowler "from contacting the [Virginia] pediatrician's office except in writing and/or that other safeguards be implemented to control her conduct toward all third parties." The trial court ultimately denied each of these requests, and they are not at issue in this appeal.

In response, Fowler filed a "Response to Cross-Motion and Supplemental Petition," in which she again asserted that D'Ambrosio had not complied with the earlier custody decree. Specifically, Fowler alleged that D'Ambrosio, "without any prior consultation with [Fowler], set up a pediatrician appointment for [S.F.] in Virginia despite the fact that [S.F.] had a regular pediatrician in New York since her birth." Fowler additionally requested that D'Ambrosio "be restrained and enjoined from making defamatory comments about [Fowler] to third parties that may affect her ability to effectively parent and communicate." In support of this request, Fowler alleged:

In addition to the above actions ... [D'Ambrosio] has apparently been discussing specifics of this case with third parties and making defamatory comments to third parties as follows:

a. [D'Ambrosio] made an appointment with Dr. Hoang, a pediatrician in Virginia, for [S.F.] without any consultation or prior notice to Complainant.

b. At a meeting or meetings with Dr. Hoang, [D'Ambrosio] told Dr. Hoang that [Fowler] had psychological problems and that he believed that she had borderline personality disorder.

c. [D'Ambrosio] made this representation to Dr. Hoang knowing that there has never been any diagnosis for borderline personality disorder. [D'Ambrosio] made this statement to the pediatrician in an effort to try and poison the pediatrician's perception of [Fowler] and to exclude [Fowler] from any meaningful contact with the pediatrician in Virginia that he unilaterally selected.

d. D'Ambrosio gave no indication to [Fowler] that he had told the pediatrician in Virginia that he believed [Fowler] had psychological problems and had borderline personality disorder. It was not until [Fowler] received copies of records from the pediatrician in Virginia where it was noted by the pediatrician that [Fowler] had borderline personality disorder that she discovered these false representations.

Fowler again requested that the court additionally award "such other relief as equity deems just."

After a hearing on the merits, the trial court granted Fowler's motion for an injunction and enjoined D'Ambrosio "from making defamatory comments about [Fowler] to any third parties." The trial judge merely noted that, although he was not sure whether the statements D'Ambrosio had made to the pediatrician "are defamatory, ... they are certainly not complimentary, and I don't think the father should be making those statements to other professional personnel or anybody else."

The court, acting sua sponte, also modified the earlier custody decree with respect to S.F.'s health care. The court noted its concern "about the welfare of [S.F.] on this pediatrician decision, and it's a potentially ... dangerous situation for the child to have two competing pediatricians, and so I'm going to modify the custody so that the mother is going to make the medical decisions for [S.F.]." The court also noted that, "[this] way, the child has a pediatrician who is primarily responsible for her care," observing that "it is fraught with peril to have it any other way." Thus, in its final order, the court ordered as follows:

[Fowler] shall have the right to select a primary care physician for [S.F.]. [Fowler] will make all

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