Pemberton v. Mallek
| Decision Date | 31 March 2020 |
| Docket Number | Record No. 1262-19-4 |
| Court | Virginia Court of Appeals |
| Parties | ROLF PEMBERTON v. KATHRYN MALLEK |
UNPUBLISHED
Present: Judges Beales, Athey and Senior Judge Haley
Argued at Fredericksburg, Virginia
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
John K. Cottrell (James Ray Cottrell; Cottrell Fletcher & Cottrell PC, on briefs), for appellant.
Camille A. Crandall (Hicks Crandall Juhl PC, on brief), for appellee.
Rolf Pemberton (father) appeals a circuit court ruling denying his "Motion to Enforce Visitation Order and Appoint a Reunification Therapist" (father's/his motion). Father argues that the circuit court erred in denying his motion and granting Kathryn Mallek's (mother) motion in limine. Father also challenges the circuit court's attorney's fees award to mother. We find no error and affirm the decision of the circuit court.
"On appeal, we view the evidence 'in the light most favorable to the prevailing party below and its evidence is afforded all reasonable inferences fairly deducible therefrom.'" Bedell v. Price, 70 Va. App. 497, 500-01 (2019) (quoting Bristol Dep't of Soc. Servs. v. Welch, 64 Va. App. 34, 40 (2014)).
The parties married on June 10, 2000, and divorced on July 26, 2016. Three children were born of the marriage - one child in 2002 and twins in 2007. On June 23, 2016, the circuit court entered an order allowing mother and the children to relocate from Arlington to Charlottesville. The circuit court awarded joint legal custody of the children to mother and father, primary physical custody to mother during the school year, and primary physical custody to father during the summer. The order also included a visitation schedule and directed the parties to "select a therapist for the children who specialize[d] in working with children of separation and divorce to assist the children."
Thereafter, the parties had numerous hearings concerning custody and visitation disputes, especially the children's refusal to visit with father. The parties worked with Dr. Christopher Lane to address the custody and visitation concerns until December 19, 2016, when the circuit court ordered the parties to select a new reunification therapist to replace Dr. Lane. The parties, their counsel, and the children's guardian ad litem agreed to work with a case manager, a parenting coordinator, and child/family therapist to address the "children's ongoing visitation resistance and refusal and related issues in the family system."
On November 28, 2017, the parties appeared before the circuit court for a "review of the custody and visitation matters," and on December 4, 2017, the circuit court entered a "Final Custody, Visitation, and Support Order." The circuit court found that father had "attempted to scuttle the process of the children's relocation to Charlottesville," but the children were "thriving" in Charlottesville. The circuit court further found that father's "damaged relationship with the children" was partially due to his "constant misrepresentation[s]" to mother during the marriage about his whereabouts and his "romantic relationship with another woman." The circuit court also found that father "failed to provide the necessary emotional support to the children," and despite the circuit court's "best efforts to repair [father's] relationship with the children," he continued "to scuttle the process." The circuit court modified the previous custody and visitation order and held that mother would have "final decision-making" power in situations regarding the children. The circuit court also held that father would "have the right to visit with the children at their practices, sporting events, ceremonies, or similar curricular and extracurricular activities . . . as often as he wishes." The circuit court ordered father to arrange any visitation, outside of his attendance at the children's activities, directly with the children. The circuit court released the case manager, parenting coordinator, and guardian ad litem from further involvement with the family.2
On January 23, 2019, father filed his motion, which is the subject of this appeal, and alleged that he had had "little contact with his children despite his steady efforts" since the entry of the December 4, 2017 order. Father asserted that mother had "outright ignored or simply rejected any requests by [f]ather for reunification therapy for the children." Father requested that the circuit court grant his motion to enforce the order, appoint Dr. Cathleen Rea as a reunification therapist, and order the parties and children to participate in reunification therapy.
Mother filed a motion in limine to exclude the testimony of Dr. Lane, whom father identified as an expert witness. In his discovery responses, father stated that he expected Dr. Lane to testify about "the negative impact on the children of not having a relationship with their father" and the benefit of working with Dr. Rea in reunification therapy. Mother objected to Dr. Lane's testimony because he had "no new material evidence" to provide the circuit court. Dr. Lane had not interacted with the family since November 2017, and mother asserted that "Dr. Lane's efforts to promote reunification were unsuccessful." After hearing the parties' arguments, the circuit court granted mother's motion in limine.
The circuit court subsequently heard the parties' evidence and arguments regarding father's motion. Father asked the circuit court to appoint Dr. Rea as a reunification therapist to assist father in coordinating visitation. Mother objected to father's motion and argued that father had not proven any material changes in circumstances since the entry of the last order. The circuit court took the matter under advisement and later issued its ruling denying father's motion. The circuit court continued the matter for a ruling on attorney's fees. The circuit court found that father's motion was "unwarranted" and "lacked a good faith basis," so it awarded mother $11,354.70 in attorney's fees. This appeal followed.
Father's motion
Father argues that the circuit court erred by denying his motion. Father asserts that he was not seeking to modify, but rather enforce, the visitation provisions of the December 2017 order. He contends, therefore, that the circuit court erred in considering whether there had been any material changes in circumstances.
"In matters of custody, visitation, and related child care issues, the court's paramount concern is always the best interests of the child." Bedell, 70 Va. App. at 504 (quoting Farley v.Farley, 9 Va. App. 326, 327-28 (1990)). "A trial court's determination with regard to visitation is reversible only upon a showing that the court abused its discretion." Id. (quoting Stadter v. Siperko, 52 Va. App. 81, 88 (2008)). "Where the record contains credible evidence in support of the findings made by that court, we may not retry the facts or substitute our view of the facts for those of the trial court." Id. (quoting Ferguson v. Stafford Cty. Dep't of Soc. Servs., 14 Va. App. 333, 336 (1992)).
The visitation provisions of the December 4, 2017 order stated that father was to arrange visitation, beyond his attendance at the children's extracurricular activities, directly with the children. Father had not visited with the children since the entry of the previous order because the children would not speak with him. During the hearing on his motion, father told the circuit court that they should not be "leaving it just to [the children] to set up the visitation - there has to be some mechanism in place for the visitation to be arranged with the children." He asked the circuit court to (1) appoint Dr. Rea as a reunification therapist who could help him arrange visitation and (2) order the family, including mother and the children, "to attend reunification therapy with Dr. Rea with the goal of establishing and arranging visitation." Contrary to his arguments, father was not seeking to enforce the December 4, 2017 order; rather, he was asking for a modification of the order because his attempts to coordinate visitation directly with the children had failed. Accordingly, because father was actually seeking to modify the visitation order, the circuit court did not err in examining whether there had been a material change in circumstances since the last order.
"When a party has filed a petition to modify an existing visitation order, the courts must apply the Supreme Court's two-pronged test enunciated in Keel v. Keel, 225 Va. 606 (1983), to determine whether modification of that order is proper." Rhodes v. Lang, 66 Va. App. 702, 709 (2016). "That test asks, 'first, has there been a change in circumstances since the most recentcustody [or visitation] award; second, would a change in custody [or visitation] be in the best interests of the children.'" Id. (quoting Keel, 225 Va. at 611).
Throughout the hearing, the circuit court asked father about the change in circumstances, and despite his argument on appeal that the court applied an incorrect standard, father presented evidence about the change in circumstances and argued that his relationship with the children had changed since the last court order. He testified that his relationship with the children was "basically nonexistent" now and that he no longer had conversations with them because they would not speak with him. Father explained that when he had attended the children's sporting events, the children would not speak with him or visit with him. At the conclusion of all of the evidence, father asked the circuit court "to enforce its visitation order" because father had not visited with the children since the last order and "[t]hat is a huge change in circumstances that needs to be addressed."
In ruling from the bench, the circuit court found that the children were "thriving" and "doing very well." The circuit also found that father's relationship with his...
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