Kapur v. Kapur, Record No. 0363-08-4 (Va. App. 5/19/2009)
| Decision Date | 19 May 2009 |
| Docket Number | Record No. 0950-08-4.,Record No. 0363-08-4. |
| Parties | AJAY KAPUR v. RUCHIKA KAPUR. |
| Court | Virginia Court of Appeals |
Appeal from the Circuit Court of Prince William County, Rossie D. Alston, Jr., Judge.
Robert W. Partin (Locke, Partin, & DeBoer, PLC, on briefs), for appellant.
Anne M. Heishman (Heishman Law, PLLC, on brief), for appellee.
Present: Chief Judge Felton, Judges Elder and McClanahan.
Ajay Kapur (husband) appeals from a final order of divorce from Ruchika Kapur (wife). He argues the trial court erred in: awarding primary physical custody of the minor children to wife, requiring him to surrender his passport, and entering a sanctions order that precluded him from introducing evidence at the hearing on spousal support, child support, and equitable distribution.1 For the following reasons, we affirm, in part, and reverse, in part, the judgment of the trial court.
Because the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
In reviewing the trial court's decision on appeal, we view the evidence in the light most favorable to wife, the prevailing party, granting her the benefit of any reasonable inferences. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). "That principle requires us to discard the evidence of [husband] which conflicts, either directly or inferentially, with the evidence presented by [wife] at trial." Id. (citations and internal quotation marks omitted). Accordingly, we "do [] not retry the facts, reweigh the preponderance of the evidence, or make [our] own determination of the credibility of the witnesses." Moreno v. Moreno, 24 Va. App. 190, 195, 480 S.E.2d 792, 795 (1997). Rather, "[w]here, as here, the court hears the evidence ore tenus, its findings are entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support" them. Alphin v. Alphin, 15 Va. App. 395, 399, 424 S.E.2d 572, 574 (1992) (citation and internal quotation marks omitted); see also D'Ambrosio v. D'Ambrosio, 45 Va. App. 323, 335, 610 S.E.2d 876, 882 (2005).
Husband and wife were married in 1996 and have two children, a son born in 2001, and another son, born in 2005. Wife instituted divorce proceedings in 2006. After a two-day ore tenus hearing, the trial court awarded joint legal custody to the parties, with primary physical custody to wife and visitation to husband. Husband contends the trial court erred in awarding primary physical custody of the minor children to wife and argues the evidence showed wife chose "her own gratification and her own desires" over "the needs and best interests of her children."2
"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); see also Code § 20-124.2(B); Petry v. Petry, 41 Va. App. 782, 789-90, 589 S.E.2d 458, 462 (2003); Goodhand v. Kildoo, 37 Va. App. 591, 599, 560 S.E.2d 463, 466 (2002); Bostick v. Bostick-Bennett, 23 Va. App. 527, 535, 478 S.E.2d 319, 323 (1996). The trial court's determination must be based on all the evidence, the factors listed in Code § 20-124.3,3 and the best interest of the children "as viewed under the circumstances existing at the time of the decision." Cloutier v. Queen, 35 Va. App. 413, 425, 545 S.E.2d 574, 580 (2001). See also Code § 20-124.2(A).
The trial court determined primary physical custody should be with wife based on the evidence presented at the custody hearing, the wife's "actions while having primary physical custody," and by "taking into consideration all of the factors in [Code §] 20-124.3." The trial court specifically noted "its focus cannot and will not be on what is best for the parties, but rather what is in the best interest of the children." Although the trial court had "great concerns about both parties' true desires to first focus on the needs of the children over their own personal desires," it found "the [wife's] work schedule, the children's school schedule and her general willingness to not undermine [husband's] efforts to be an equal partner in the rearing of these children provides the potential for these children having a proper familial and societal development." The trial court's decision was not "plainly wrong or without evidence to support" it. Alphin, 15 Va. App. at 399, 424 S.E.2d at 574 (internal quotation marks and citation omitted). Accordingly, we affirm the trial court's decision granting primary physical custody to the wife.
In its custody order, the trial court ordered the parties to surrender their passports and the passports of the children to their counsel, and further ordered that the passports should not be returned without a hearing or consent order. Although husband argues on appeal the trial court's action was an unconstitutional restriction on his right to travel, there is no citation to the record indicating where this argument was preserved and husband concedes he did not object to this ruling. Pursuant to Rule 5A:18, "this Court `will not consider an argument on appeal [that] was not presented to the trial court.'" Farnsworth v. Commonwealth, 43 Va. App. 490, 500, 599 S.E.2d 482, 487 (2004) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998)). "`Rule 5A:18 applies to bar even constitutional claims.'" Id. (quoting Ohree, 26 Va. App. at 308, 494 S.E.2d at 488). Thus, husband's argument is waived pursuant to Rule 5A:18.
On January 25, 2008, the trial court entered an order granting wife's motion for sanctions against husband. The trial court found husband "failed to comply with the discovery rules of this court, specifically he failed to appear for the properly scheduled taking of his deposition on January 7, 2008, and also failed to appear for a re-scheduled deposition on January 18, 2008." Thus, "pursuant to the provisions of Rule 4:12 of the Rules of the Supreme Court of Virginia, [husband] is precluded at trial from introducing any evidence in his case in chief and is precluded from introducing evidence to support his claims or to oppose [wife's] claims with regard to the issues to be heard and decided by this Court on February 11-13, 2008 (Final Divorce, Support and Equitable Distribution Hearing)."4
Pursuant to Rule 4:12(a), a party may apply to a court in which an action is pending for an order compelling discovery when a party provides an incomplete discovery response.5 Rule 4:12(b) sets forth the sanctions the trial court may impose if a party fails to obey an order compelling discovery.6 Rule 4:12(d) sets forth the actions the trial court may take if a party completely fails to respond to a discovery request.7 And in Brown v. Black, 260 Va. 305, 534 S.E.2d 727 (2000), the Supreme Court held that the entry of and failure to obey an order compelling discovery is a prerequisite for an order imposing sanctions under Rule 4:12(d) (). The Court reasoned since a party's failure to obey an order compelling discovery is a prerequisite for the imposition of sanctions under paragraphs (A), (B), and (C) of Rule 4:12(b)(2) (), the imposition of sanctions under Rule 4:12(d) () was likewise conditioned upon a failure to comply with such an order since the remedies under subsection (d) are those designated in Rule 4:12(b)(2)(A)-(C).8
Wife states an e-mail written by her former attorney indicates that at a hearing on January 11, 2008, in which the husband was not present, the trial court verbally ordered husband to appear for a deposition. According to the record, this e-mail advised husband his deposition was "now scheduled" for January 16, 2008. However, the record further indicates wife's attorney instructed the trial court not to enter a proposed order imposing sanctions and compelling husband's attendance at his deposition because husband had no notice of the January 11th hearing. In the sanctions order entered on January 25, 2008, a paragraph that would have required husband to appear for a deposition on or before February 1, 2008, was specifically deleted by the trial court with diagonal lines marking through the entire paragraph. The record contains no order compelling husband to attend a deposition.
Applying Brown, as we are bound by the Virginia Supreme Court precedent, because no order compelling husband's attendance at a deposition was ever entered in this case, the trial court erred in imposing sanctions and precluding husband from introducing evidence at the hearing on support and equitable distribution. We, therefore, remand the case to the trial court for a new hearing on the issues of spousal support, child support, and equitable distribution.9
In sum, we affirm the trial court's decision awarding joint legal custody to the parties, with primary physical custody to wife and defined visitation to husband. We decline to consider husband's argument that the trial court erred in requiring him to surrender his passport finding that argument was waived pursuant to Rule 5A:18. We conclude the trial court erred in entering the sanctions order preventing husband from introducing evidence at the hearing on spousal support, child support, and equitable distribution and remand this case to the trial court for a new hearing on those issues.
Affirmed in part; reversed and remanded in part.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication....
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