Foster-Zahid v. Com.

• Decision Date: 12 November 1996
• Docket Number: No. 1937-95-4,FOSTER-ZAHID,1937-95-4
• Citation: 23 Va.App. 430,477 S.E.2d 759
• Parties: Donnav. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 759

477 S.E.2d 759

23 Va.App. 430

Donna FOSTER-ZAHID v. COMMONWEALTH of Virginia.

Record No. 1937-95-4.

Court of Appeals of Virginia,

Alexandria.

Nov. 12, 1996.

(William D. Pickett, on briefs), Fairfax, for appellant. Appellant submitting on briefs.

Marla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: FITZPATRICK, ANNUNZIATA, JJ., and DUFF, Senior Judge.

FITZPATRICK, Judge.

Donna Foster-Zahid (appellant) was convicted in a bench trial of custodial interference (felony parental abduction) in violation of Code § 18.2-49.1(A). ¹ On appeal, appellant contends that the trial court erred in: (1) exercising jurisdiction because the abduction was accomplished outside of Virginia, and (2) finding Fairfax, Virginia to be the appropriate venue. For the reasons that follow, we affirm the trial court.

I. BACKGROUND

The facts are uncontested. Mr. Zahid and appellant were married in December 1983. Their son, Raja Zahid Jr., was born December 1986. After they separated, custody of Raja Jr. was determined in an October 19, 1994 hearing in the Fairfax Juvenile and Domestic Relations District Court in which both parties were represented by counsel. In a November 9, 1994 order, the judge ordered joint legal and physical custody of Raja Jr. and specified as follows:

The child shall be released to his father's physical custody on Saturday, October 22, 1994 at 11:00 AM and shall continue to be in his father's physical custody except for periods of visitation with his mother, as herein outlined, until the second semester begins in the child's Wisconsin school....

After this Fall 1994-1995 semester, Raja will live with his mother during the school term each year and his father during the summer school vacation....

* * * * * *

The father shall take or send the child to visit the mother in Wisconsin December 2nd through 4th, 1994. The mother shall have the child with her and is to arrange transportation, etc. for a holiday visit from the day school is out in Virginia through December 29th at 10:00 PM, when she is to return Raja to the father in Virginia.

Mr. Zahid took his son to Wisconsin for appellant's fall visitation on December 2, 1994 and left two plane tickets with appellant so that she could return the child on December 4, 1994 as required by the court order. Appellant failed to return the child to his father. She informed Mr. Zahid that she would not return Raja Jr. because he had an ear infection and she did not want him to travel by air. She later agreed to bring Raja Jr. back by train. Relying on this representation, Mr. Zahid purchased two train tickets for the return trip. Appellant again refused to relinquish the child. Appellant then agreed to deliver the child to Mr. Zahid if the transfer occurred at the Amtrak Station in Milwaukee, Wisconsin on December 9, 1994. Mr. Zahid travelled to Wisconsin, waited for Raja Jr. and appellant at the station, but they never appeared.

On December 14, 1994, a Wisconsin court enforced the Virginia decree and required appellant to "forthwith and without delay place the child Raja E. Zahid into the actual and physical custody and control of Raja M. Zahid." ² Rather than comply, appellant absconded with the child to California on December 24, 1994, and then to Colorado four days later. In March 1995, appellant was arrested in Colorado for the abduction of Raja Jr., and returned to Fairfax, Virginia for trial.

II. JURISDICTION

At the close of the Commonwealth's case, appellant moved to strike the evidence and argued inter alia that neither jurisdiction nor venue was properly laid in Fairfax, Virginia, because the place of the child's abduction was Wisconsin. The trial court denied the motion to strike and stated as follows:

The gravamen of [18.2-49.1] is not taking a child. I don't think the statute even uses the word taking a child or abduction. It says withholding a child. Withholding the child from the child's custodial parent. And the withholding is where the child's supposed to be and if the child is supposed to be here, this is where the offense occurs.

* * * * * *

[What makes 18.2-49.1 a felony] is that the child is withheld outside the Commonwealth. But the Commonwealth is where the child was supposed to be and that's the gravamen of the offense. Both jurisdiction and venue are here because this is where the parent lived.

(Emphasis added).

At the close of all the evidence, the court denied the renewed motion to strike by appellant's counsel and additionally found as follows:

I didn't hear any reason why [appellant] went to California or Colorado except to withhold the child ... in violation of the [c]ourt [o]rder. She violated not one, but two [o]rders. There was an [o]rder in Virginia and there was one in Wisconsin. The Wisconsin [o]rder was issued after the events that she says occurred, that she says gave her reason to fear that her husband would take the child to Pakistan had occurred. So, whatever those issues were could and should have been raised in the Wisconsin hearing.

[S]he got an [o]rder from Wisconsin saying take the child back--give the child back, and she violated that [o]rder as well as the Virginia [o]rder. She knew of the two [o]rders. She intentionally withheld the child without legal excuse. So, it was wrongful.

The violation of the [c]ourt [o]rders was clear and significant. This is the very type of behavior that the statute is designed to prevent. There may be a whole lot of social policy reasons why this ought not to be a felony, but I don't do social policy; I do law. And she violated the law and I find her guilty.

Appellant argues that the trial court lacked jurisdiction to try her for a violation of Code § 18.2-49.1(A) because her act of withholding the child occurred outside the confines of the Commonwealth. Appellant contends that the locus of where the child is "with[held] from the child's custodial parent," rather than where the custody order was entered, controls jurisdiction. The clear language of the statute contradicts this view.

(A) Parental Abduction/Custodial Interference Statute

"A primary rule of statutory construction is that courts must look first to the language of the statute. If a statute is clear and unambiguous, a court will give the statute its plain meaning." Loudoun County Dep't of Social Servs. v. Etzold, 245 Va. 80, 85, 425 S.E.2d 800, 802 (1993). The General Assembly specified that Code § 18.2-49.1(A) applies to any person who withholds a child outside of Virginia from the child's custodial parent in violation of a Virginia court order, if the custodial parent resides in Virginia. The statutory language demonstrates the General Assembly's intent to make criminal an act occurring outside of Virginia that causes harm within.

Subsections A and B of Code § 18.2-49.1, although similar in language, are different in effect. The legislature outlined two degrees of custodial interference. The degree of offense is determined by the location of the detention or abduction. If it occurs within the territorial boundaries of the Commonwealth, under subsection B, it is a misdemeanor. The act that elevates the offense from a misdemeanor to a felony occurs only when the child is "withheld " from a custodial parent "outside of the Commonwealth." Code § 18.2-49.1(A) (emphasis added). The gravamen of the offense is the withholding of the child from the custodial parent outside the Commonwealth. The clear intent of the statute is to punish more severely those who withhold a child from its rightful custodian when the detention is accomplished outside of Virginia, thereby further restricting the custodial parent's ability to retrieve the child. The underlying policy for this statute, like that of the Parental Kidnapping Prevention Act, 28 U.S.C.A. § 1738A, is to deter, if not prevent, child snatching.

While we have not previously addressed this precise issue, other jurisdictions with similar statutes hold that the custodial parent's residence and the place of issuance of the custody decree provide a sufficient jurisdictional nexus regardless of where the actual abduction or detention occurs. ³

In Vermont, the child custody interference statute provides in pertinent part, "[a] person commits custodial interference by taking, enticing or keeping a child from the child's lawful custodian." Vt. Stat. Ann. tit. 13, § 2451(a) (1995) (emphasis added). The Supreme Court of Vermont, in a factually similar case, construed the statute to "explicitly contemplate[ ] application to a person who has kept a child outside of Vermont." The court specifically rejected defendant's argument that the statute "refers only to those who 'snatch' a child in Vermont and then leave the state to avoid detection," and found that "[t]he only plausible interpretation of [the statutory] language is that the statute is intended to apply to a person ... who keeps a child outside Vermont when the child's lawful custodian is a resident of Vermont." State v. Doyen, --- Vt. ----, 676 A.2d 345, 346 (1996) (emphasis added). The court found further grounds for jurisdiction because the result of defendant's conduct (i.e., the custodial parent losing custody) was "not incidental to the offense charged, but [was] in fact an element of the offense as defined by statute." Id., 676 A.2d at 348.

In construing the Alaska statute addressing custodial interference, the Court of Appeals of Alaska stated, "[t]he crime of custodial interference was designed to protect any custodian from deprivation of his or her custody rights." Strother v. State, 891 P.2d 214, 220 (Alaska Ct.App.1995). "Alaska's custodial interference statutes embody the rule that, when a child is entrusted to joint custodians, neither custodian may take exclusive physical custody of the child in a manner that defeats the rights of the other joint custodian." Id. at 223. The Alaska statute uses the phrase "takes, entices, or...