Haring v. Hackmer, Record No. 2846-04-4 (VA 11/8/2005), Record No. 2846-04-4.

Decision Date08 November 2005
Docket NumberRecord No. 2846-04-4.
PartiesELIZABETH A. HARING, F/K/A ELIZABETH A. HACKMER v. MICHAEL J. HACKMER
CourtSupreme Court of Virginia

Appeal from the Circuit Court of Fairfax County, Robert W. Wooldridge, Jr., Judge.

Robert G. Culin, Jr. (Culin, Sharp, Autry & Day, P.L.C., on briefs), for appellant.

Michael D. Sawyer (Moyes & Levay, P.L.L.C., on briefs), for appellee.

Sylvia W. Voreas (The Law Office of Sylvia W. Voreas, on briefs), Guardian ad litem for the infant child.

(John R. Roberts, County Attorney; John W. White, Assistant County Attorney, on brief), for Loudoun County Department of Social Services. Loudoun County Department of Social Services submitting on brief.

Present: Judge Clements, Senior Judges Willis and Annunziata.

MEMORANDUM OPINION*

JUDGE JEAN HARRISON CLEMENTS.

Elizabeth A. Haring (mother) appeals from an order of the trial court awarding sole legal and physical custody of the parties' child (child or daughter) to Michael J. Hackmer (father). Mother contends the trial court erred in finding that an award of sole custody to father was in child's best interests. Prior to oral argument on this case, we asked the parties, the guardian ad litem, and the Loudoun County Department of Social Services (DSS) to brief whether mother's failure to give notice to DSS of this appeal is a procedural flaw requiring us to dismiss. We find that the failure of such notice is not a procedural bar to appellate review under the particular circumstances before us, and decline to dismiss this appeal. We further hold on the merits that the trial court did not err in awarding sole legal and physical custody to father, and therefore affirm.

As the parties are fully conversant with the record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.

I. BACKGROUND

The facts in the present appeal were determined by the trial court after ore tenus hearing, and are not challenged by mother on appeal. The parties are the separated parents of child, born May 31, 1999, each of whom at the time of the ore tenus hearing had filed for divorce and sought custody in the trial court. On January 6, 2004, while the trial court proceedings were pending and in response to a Child in Need of Services petition, the Loudoun County Juvenile and Domestic Relations District Court awarded temporary physical custody to DSS. Thereafter, on May 28, 2004, DSS was made a party to the trial court custody proceedings, and the trial court approved a DSS foster care service plan establishing a goal of returning child to the custody of the parents. The proceedings in the Loudoun County Juvenile and Domestic Relations District Court were then dismissed.

Following the ore tenus hearing, the trial court found that child had had some emotional difficulties that were somewhat alleviated during a period of foster care, including toilet training problems and the demonstration of inappropriate interpersonal boundaries. She had also made several allegations of sexual abuse that after full investigation were determined to be unfounded. The trial court found that an "over-sexualized atmosphere" contributed to child's problems.

In addition to father's failure to maintain continuous employment, several specific incidents led the trial court to question father's ability to function as a custodial parent. He had two extramarital sexual relationships while living with and married to mother. When his daughter was a year old, he placed the hands of a one-year-old male child on his daughter's chest and lap and made sexual comments in the presence of the children's mothers. He sent an e-mail to mother that ascribed a sexual motive to a playground meeting between his daughter and another child. He often referred to child's breasts as growing "boobies." Father once sent mother an inexplicably violent and sexual e-mail poem meant to intimidate her. In sum, the trial court found that father failed "to recognize his role as a parent and the extent to which his conduct [might] influence his child," and thus determined that father's disposition to improper sexualized conduct had contributed to an inappropriate atmosphere for rearing child.

Mother was also found by the trial court to have "created" the inappropriate and sexualized environment in which child had been raised. She had subjected child to invasive questioning of a sexual nature as well as at least three vaginal and anal medical examinations arising out of mother's multiple unfounded complaints to Child Protective Services (CPS) of father's sexual conduct with child. Mother had claimed that father had sexually abused child almost since birth, yet she made no mention of sexual abuse in her Bill of Complaint, and even after initiating divorce proceedings she continued a normal—and at times intimate—relationship with him. Since filing her Bill of Complaint mother had reported to CPS two specific incidents she claimed were witnessed by third parties of father's sexual abuse of child. Each report was discredited in the hearing: in one instance, the third party denied her claim, and the other account contained anachronism, inconsistency, and bias. The trial court noted that the timing of many of mother's unfounded accusations of sexual misconduct by father had been, for various reasons, suspect.

During the pendency of the divorce and custody proceedings and while child was in her custody, mother twice failed to give thirty days' notice of a change in residence as required by court order. She had arbitrarily and unilaterally required father's visitation with child be supervised by third parties. Despite a sealed record in this case, she had released father's psychosexual evaluation to third parties. She had refused to accept agency and medical determinations inconsistent with her accusations; rather, she had simply pressed her claims elsewhere. In this way she had improperly involved several different government entities and health care providers in various Virginia and Maryland jurisdictions, intentionally and with no apparent factual basis calling into question several professional reputations. She had attempted to involve in this child custody determination legislators and newspaper reporters, parties whose only possible role in this proceeding was to impose an inappropriate political consideration on the judicial process. And, without any foundation in fact, she had told child that father wanted to kill child.

Mother's employment situation, though less than ideal, was more continuously stable than father's. Nevertheless, she had moved five times in the two and a half years preceding the custody determination, whereas father had remained in the same home throughout. The findings of two credible professionals showed that father's parenting abilities are superior to mother's.

During the proceedings, DSS took no position as to which parent should be awarded custody. On October 25, 2004, after hearing several professional opinions consistent with the position, the trial court found that it was "in the best interests of the child to be returned to the custody of one or both of her parents." On January 13, 2005, after a further consideration of the facts under the provisions of Code § 20-124.3, the trial court awarded custody to father with substantial visitation to mother. In reaction to lingering "reservations about both of the parents," the court also ordered the continuing involvement of DSS in the coordination of services to the parties.

On November 29, 2004, mother timely filed a notice of appeal with the clerk of the trial court indicating her intention to challenge the circuit court's final order awarding sole legal and physical custody of child to father. Mother does not challenge the final order as to the continuing involvement of DSS, and did not mail or deliver a copy of the notice of appeal to DSS.

In response to this Court's request to address the ramifications of mother's failure to mail or deliver to it a copy of the notice of appeal, DSS asserted on brief that it retained no "legal or beneficial interest in this appeal of the final custody award."

II. FAILURE OF NOTICE TO DSS

The first question before us concerns whether this Court can hear this appeal where mother did not notify DSS. "`No appeal shall be allowed unless, within 30 days after entry of final judgment or other appealable order or decree, counsel [for appellant] files with the clerk of the trial court a notice of appeal, and at the same time mails or delivers a copy of such notice to all opposing counsel . . . .'" Hughes v. York County Dep't of Soc. Servs., 36 Va. App. 22, 25, 548 S.E.2d 237, 238 (2001) (quoting Rule 5A:6(a)). We note that prior to its appealed-from determination that father should have sole custody of child, the trial court made a separate finding that it was in child's best interests to be removed from the custody of DSS and "returned to the custody of one or both of her parents." We further note that neither DSS nor any other party objected to this finding, nor appealed therefrom. Appeal of that separable determination had thus been waived. See Rule 5A:18. The present appeal therefore concerns only the subsequent trial court determination of the custody rights of mother vis a vis father. It cannot be said, therefore, that DSS is an opposing party to the present appeal for purposes of mother's compliance with her procedural obligations.

Nonetheless, "a court lacks the power to proceed with a suit unless all necessary parties are properly before the court." Asch v. Friends of Mt. Vernon Yacht Club, 251 Va. 89, 91, 465 S.E.2d 817, 818 (1996). However, a necessary party is one whose immediate interest in the subject matter of a court action "`"is likely either to be defeated or...

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