Kiriakou v. Kiriakou

• Court: Virginia Court of Appeals
• Writing for the Court: MEMORANDUM OPINION BY JUDGE GLEN A. HUFF
• Decision Date: 13 October 2020
• Docket Number: Record No. 0323-20-4
• Citation: Kiriakou v. Kiriakou, Record No. 0323-20-4 (Va. App. Oct 13, 2020)
• Parties: JOHN CHRIS KIRIAKOU v. HEATHER KATHERINE KIRIAKOU

JOHN CHRIS KIRIAKOU v. HEATHER KATHERINE KIRIAKOU

Record No. 0323-20-4

COURT OF APPEALS OF VIRGINIA

OCTOBER 13, 2020

UNPUBLISHED

Present: Judges Beales, Huff and O'Brien

Argued by videoconference

MEMORANDUM OPINION^* BY JUDGE GLEN A. HUFF

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY

Louise M. DiMatteo, Judge

Norman A. Thomas (Norman A. Thomas, PLLC, on briefs); for appellant.

Edward V. O'Connor, Jr. (Edward V. O'Connor, Jr., P.C., on brief), for appellee.

John Chris Kiriakou ("father") appeals the order of the Circuit Court for the County of Arlington (the "trial court"), which, in relevant part, awarded Heather Katherine Kiriakou ("mother") sole legal and physical custody of father and mother's three children. Additionally, father challenges the trial court's order requiring him to initiate revocation of the children's Greek citizenship.

Father contends that the trial court erred in two respects. First, father contends that the trial court's custody and visitation order was an abuse of discretion because it was not in the children's best interests and not otherwise supported by evidence in the record. Second, father asserts that the trial court's order requiring him to initiate revocation of the children's Greekcitizenship was in error because the trial court was without authority to issue that ruling and because mother never requested that relief in her pleadings.

This Court affirms the judgment of the trial court in part and reverses it in part. This Court affirms the trial court's custody and visitation order because the trial court did not abuse its discretion in fashioning that award. However, this Court reverses the trial court's order related to the children's Greek citizenship because that order was outside the scope of relief requested by mother in her pleadings.

I. BACKGROUND

On appeal, this Court views the evidence in the light most favorable to the prevailing party and does not "retry the facts or substitute [its] view of the facts for [that] of the trial court." Congdon v. Congdon, 40 Va. App. 255, 266 (2003) (internal citations and quotation marks omitted). So viewed, the evidence is as follows:

After a marriage lasting approximately fifteen years, father and mother separated on May 16, 2017, and obtained a final order of divorce from the Arlington County Circuit Court on November 2, 2018. That final order of divorce incorporated the parties' marital settlement agreement ("MSA"), which, among other things, provided for a temporary custody arrangement whereby father and mother shared joint legal and physical custody over the children.

Not long after the divorce, and under a belief that the impetus for their divorce had been an alleged affair between mother and mother's current husband Nicholas Maan ("Maan"), father engaged in a series of actions that led to the relevant proceedings in this case. Father first obtained a computer belonging to mother and perused several emails between mother and Maan that contained sexual imagery and romantic discourse. In response, father hired a private investigator to follow mother and Maan and also sent both of them a number of explicit and accusatory emails outlining his disdain for them and their relationship. In addition, fathercompiled the sexualized photos sent by mother to Maan and mailed them to mother and Maan's place of employment, Northrop Grumman Corporation, with accusations that the two were "embezzling" the company's resources by using those resources to advance their romantic relationship. Finally, in July of 2019, after learning that mother had taken the children to the wedding of Chris Kiriakou, an adult son of father from a prior marriage, father shattered a framed picture of mother's grandmother and left the destroyed remains at mother's doorstep.

On July 18, 2019, mother filed a verified petition and affidavit for rule to show cause as well as a motion to modify legal and physical custody in the trial court. In those pleadings, mother alleged that father committed multiple breaches of the MSA and requested that (1) the trial court award her sole legal and physical custody of the children, (2) the trial court order father to submit to an independent psychological evaluation, and (3) the trial court award her appropriate fees and costs. On August 9, 2019, the trial court ordered a rule to show cause directed to father.

The trial court set the show cause matter for a hearing to be tried concurrently with the custody determination on January 27-28, 2020. The trial court also entered an order for an independent psychological and custodial evaluation and appointed Dr. Christopher H. Lane ("Dr. Lane") to serve as an independent psychological evaluator for the purpose of conducting evaluations of father and mother and to otherwise provide analysis to assist the trial court in making its custody determination.

While the custody and show cause proceedings were pending and shortly after the picture frame shattering incident, mother separately sought a two-year protective order against father in the juvenile and domestic relations district court (the "JDR court"), which was granted on August 2, 2019. Father appealed the JDR court's ruling to the Arlington County Circuit Court,and after a hearing on October 30, 2019, the circuit court also granted mother's request for a two-year protective order.

On January 24, 2020, Dr. Lane submitted his written report to the parties. That report was based on multiple psychological tests taken by mother and father, interviews with mother, father, and the children, as well as interviews with over thirty non-familial individuals.

Dr. Lane's report noted that both father and mother had "well-developed" parenting skills and also detailed the children's attachment to and affection for father and a desire to maintain the status quo with respect to his shared custody of them. Additionally, the report described the negative impact that father's behavioral patterns had on the children. Specifically, the report outlined father's habit of "denigrating" mother's character in the children's presence, which Dr. Lane concluded has "had an enormously unhealthy effect on the children's healing" from the fallout of their parents' separation. Additionally, the report described an unhealthy level of dependence father had on his children's loyalty and further identified that the children had taken on a "parentified" role in their relationship with father. Tying these concerns together, the report went on to state the following:

[T]his evaluation would support the contentions of [mother] that [father] has confused his own interests with those of his children, has unhealthily involved them in his hurt and in his anger, has inappropriately engendered or strengthened negative feelings on the part of the children toward [mother], has interfered with the healing of the children as he struggled with his own healing, and has exercised poor control in statements to the children, those made around the children, and those made to individuals who have an ongoing relationship with the children. While there is data that he has made some degree of progress in these domains during recent months, he is seen as still manifesting a worrisome self-justifying position and an inattentiveness to costly collateral damage as he pursues self-serving goals.

Notwithstanding his concerns with the state of father's relationship with the children, Dr. Lane recommended that father and mother continue sharing joint legal custody of thechildren. Similarly, Dr. Lane recommended that for a four-month period, father's physical "custodial time with the children be restricted to alternating weeks from Friday after school to Monday morning at the beginning of the school day as well as one dinner visit with each child during each two week period[,]" with the expressed goal of reinstating equally shared physical custody between mother and father at the end of the four-month period. Dr. Lane's recommendations were based on the stated preferences of the children, his belief that father's behavioral patterns would improve with therapy, and his view that fostering a continued relationship between the children and both parents was in the best interests of the children.

Dr. Lane testified to his report and recommendations at trial and reiterated his findings and opinions in his report. Notably, Dr. Lane also suggested that visitation between father and the children take place in a therapeutic setting, where "boots-on-the-ground work between [father] and the children occur . . . [which] can be monitored by the therapist, it can be adjusted by the therapist[,] and it can be reported by the therapist."¹

In addition to Dr. Lane's testimony, the trial court received other evidence related to custody matters and the children's best interests. Among the other witnesses was father's psychiatrist Dr. Stephen Xenakis ("Dr. Xenakis"). Dr. Xenakis testified that father suffered from depression, anxiety, post-traumatic stress disorder, hypertension, and diabetes. In his view, these medical illnesses diminished father's "ability to think and make decisions and act in a purposeful fashion and impair[] and interfere[] with good functioning in [his] daily life."

Although not mentioned in any of mother's pleadings, the issue of the children's Greek citizenship arose during mother's testimony. In her testimony, mother alleged that fatherobtained Greek citizenship for the children without her knowledge and that, as a result, there was a potential for the children to be drafted in the Greek military or for father to leave the United States and go to Greece with the children. In response to a question from her counsel on direct examination, mother for the first time made a request for relief regarding the children's Greek citizenship:

[Counsel:] Now, with this revelation today that [father] has gained Greek citizenship without your knowledge, what would you ask the Court to do?

[Mother:] Three things. I would ask the

...