Lutes v. Alexander

Decision Date25 August 1992
Docket NumberNo. 1681-90-4,1681-90-4
Citation14 Va.App. 1075,421 S.E.2d 857
PartiesPaul M. LUTES v. Lucy M. ALEXANDER. Record
CourtVirginia Court of Appeals

Marvin D. Miller, Alexandria, for appellant.

Richard E. Crouch, Arlington, for appellee.

Present: BAKER, DUFF and ELDER, JJ.

DUFF, Judge.

Paul M. Lutes appeals an October 19, 1990 order of the Arlington County Circuit Court denying his petition to vacate several previous orders entered in this case and holding him in contempt of court. He contends that: (1) the court orders granting visitation, change of custody, and transfer of the case to Tennessee were entered without jurisdiction; (2) the Soldiers' and Sailors' Civil Relief Act of 1940 voids the disputed orders entered by those courts; (3) the disputed orders were entered in violation of his rights to notice and due process; (4) the contempt order was entered erroneously; and (5) the appeal bond was excessive. We address each argument in turn. Because we find no merit to the husband's contentions, we affirm the decision of the trial court.

Under familiar principles, we view the evidence and all reasonable inferences in the light most favorable to the prevailing party below, in this case Lucy Alexander Lutes. Martin v. Pittsylvania County Dep't. of Social Servs., 3 Va.App. 15, 20, 348 S.E.2d 13, 16 (1986). "The burden is on the party who alleges reversible error to show by the record that reversal is the remedy to which he is entitled." Johnson v. Commonwealth, 12 Va.App. 391, 396, 404 S.E.2d 384, 387 (1991). We are not the fact-finders and an appeal should not be resolved on the basis of our supposition that one set of facts is more probable than another. Keener v. Commonwealth, 8 Va.App. 208, 214, 380 S.E.2d 21, 25 (1989). Because this litigation concerns events occurring during a period of time in excess of a decade, we describe the facts in some detail in the light of the principles stated above. When so viewed, the record reveals the following:

I. FACTUAL BACKGROUND

In the fall of 1975, Major Paul Lutes (father) and Mrs. Lucy Alexander Lutes, now Lucy M. Alexander (mother), then residing in Henderson County, Texas, separated. The father took the two minor children to Virginia, while the mother remained in Texas. On March 22, 1976, the Arlington County Juvenile and Domestic Relations Court (J & DR), on petition of the father, awarded him their custody and ordered the mother to pay child support. The mother properly perfected an appeal of this order to the Circuit Court.

The J & DR Court order allowed the mother visitation with the children only within Arlington County, Virginia. In July, 1976, the father threatened the mother that she would never see the children again if she did not obey his wishes. The record does not furnish the specifics of his wishes. The mother then took the children to Texas, in violation of the J & DR Court order. On September 15, 1976, the Henderson County, Texas court granted full faith and credit to the Virginia order without an independent evidentiary hearing, and awarded custody of the children to the father.

The mother then obtained a divorce on or about February 3, 1977, through the Harris County, Texas court. On May 19, 1977, the father, who had regained custody, took the children overseas to Turkey pursuant to his orders with the U.S. Air Force. At that time, the ruling of the J & DR Court was still on appeal de novo to the Arlington County Circuit Court.

In June, 1978, the mother set the appeal for trial in the Circuit Court. However, on June 9, 1978, the father filed a petition by counsel to stay those proceedings under the Soldiers' and Sailors' Civil Relief Act of 1940 ("SSCRA"). The trial was not held until December 7, 1979. The Circuit Court affirmed de novo the father's custody of the children, but granted the mother visitation rights outside of Virginia. A written order was not entered at that time.

As part of the mother's attempts to notify the father of this ruling, particularly with regard to Easter visitation with the two minor children, the mother's Texas counsel, Mr. Joe H. Rentz, made several telephone calls to Izmir, Turkey on April 1, 1980. Mr. Rentz spoke to a Captain Harley, who advised him that he would attempt to communicate the message to Major Lutes as soon as possible. During a second call later that day, Mr. Rentz discovered that Major Lutes had been transferred to Ramstein, West Germany at the end of October, 1979. Upon receiving a new address and phone number, Rentz made several attempts to establish communication with Major Lutes at the Ramstein Air Force Base in West Germany. Although he did not succeed in reaching the father directly, Rentz again left messages concerning the Easter visitation, which message he was assured would be conveyed to Major Lutes. On April 2, 1980, Major Lutes telephoned Mr. Rentz in Houston, Texas, advising him that D.H. Binder of Oakton, Virginia, held his power of attorney to act on his behalf and that all future communications regarding the case and visitation with the children should be directed to Lutes through Mr. Binder. Rentz then telephoned the Ramstein Elementary school and discovered that the summer vacation period for the minor children ran from June 12, 1980 through August 24, 1980.

On April 2, 1980, the Circuit Court entered an order affirming the J & DR Court order of March 22, 1976, with the specified modifications. This order was endorsed by Betty Thompson, who was counsel for the father at that time. Lutes asserts that he discharged his counsel prior to the entry of this order, but the Circuit Court did not grant Ms. Thompson leave to withdraw as counsel until April 4, 1980.

According to the April 2, 1980 order, the mother's visitation rights were subject to a number of conditions precedent. The Circuit Court also ordered the mother to bring current all past due child support by paying one-half directly to Major Lutes and one-half into a joint escrow account, to be remitted to Lutes after the first ordered visitation with the minor children. On May 30, 1980, the Circuit Court specifically found that the mother had "complied with all conditions precedent ... entitling her to visitation with her children, Margaret C. Lutes and Alexander Lutes." The order further granted the mother specific summer visitation with both children. To facilitate this visitation, Major Lutes was ordered to place the children on Lufthansa Airlines Flight # 713, departing Saarbrucken, West Germany at 7:10 a.m. on Monday, June 16, 1980, and arriving in Frankfurt, West Germany at 7:55 a.m. that same day. This flight connected with Lufthansa Airlines Flight # 438 departing Frankfurt, West Germany at 9:40 a.m. on the same date direct to Atlanta, Georgia, arriving at 1:20 p.m. Atlanta time, where the mother would meet them and escort them to her home in Austin, Texas. The children were scheduled to depart the United States for Germany on August 11, 1980, to arrive at Saarbrucken at 2:35 p.m. on August 12, 1980. According to the mother, she waited at the Atlanta airport on June 16, but the children never arrived.

In August, 1980, the mother petitioned the Arlington County Circuit Court for a change of custody based on the father's noncompliance with the visitation order. The father claims he received no notice of this petition, although the record contains evidence that the petition and notice of hearing were served on him in person by Daniel Slavens, an American attorney practicing in West Germany.

On September 26, 1980, the Arlington Circuit Court modified its former custody order, granting custody to the mother and terminating her child support obligation, as well as awarding her costs in the amount of $14,119 for her expenses in attempting to enforce her visitation rights. On November 5, 1980, a more formally drafted order provided that the mother would owe no child support after September, 1980. Although Major Lutes contends he received no notice of this proceeding, the November 5, 1980 order specifically sets forth that he was duly served with a copy of the petition and notice of the hearing on August 24, 1980.

On March 30, 1981, the mother's counsel notified the Circuit Court that Germany evidently would not accept personal service on the husband in Germany, as the process was not in compliance with the Hague Convention on service of process. The mother then attempted to notify Major Lutes of the proceedings in accordance with the Hague Convention. However, the presiding judge of the Landsgerichts, Zweibrucken, executed a return of non-service on May 25, 1981. The document stated that Major Lutes could not be served because he refused to accept service. This return of nonservice was received and filed in the Arlington Circuit Court Clerk's office on June 29, 1981.

Nothing further of significance occurred until 1987, when Major Lutes filed an action in the Probate Court of Davidson County, Tennessee, where the mother then lived, to domesticate a portion of the parties' Texas divorce decree involving property and money. The mother filed a reply and cross-complaint in the Davidson County Probate Court, requesting enforcement of the several orders entered in Virginia granting her custody and money damages. On August 31, 1987, the Tennessee Probate Court entered an order directing the father to explain the whereabouts and welfare of the parties' minor children. This order was served on Sabin R. Thompson, the father's designated Tennessee counsel. On October 13, 1987, the Tennessee court entered an order directing the father to appear on December 15, 1987, at 9:00 a.m. to explain the welfare and whereabouts of the children. This order was also served on Sabin Thompson. On October 23, 1987, the father executed an affidavit stating that he had discharged Sabin Thompson and Thompson's law firm, which affidavit was filed with the Probate court. Thereafter, Mr. Thompson was permitted to withdraw as the father's ...

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