Scott v. Rutherfoord, Record No. 0461-98-2

• Decision Date: 06 July 1999
• Docket Number: Record No. 0461-98-2,Record No. 1010-98-2.
• Citation: 516 S.E.2d 225,30 Va. App. 176
• Parties: James F. SCOTT v. Jean Hall RUTHERFOORD. James F. Scott v. Jean Hall Rutherfoord.
• Court: Virginia Court of Appeals

516 S.E.2d 225

30 Va. App. 176

James F. SCOTT v. Jean Hall RUTHERFOORD.

James F. Scott v. Jean Hall Rutherfoord.

Record Nos. 0461-98-2, 1010-98-2.

Court of Appeals of Virginia, Richmond.

July 6, 1999.

Sanford K. Ain (James P. Head, Washington, DC; R. Craig Wood; James M. Johnson, Charlottesville; Sherman, Meehan, Curtin & AM, Washington, DC; McGuire, Woods, Battle & Boothe, Charlottesville, on briefs), for appellant.

John K. Taggart, III, Charlottesville (Patricia D. McGraw, Denver, CO; Rachel L. Rust; Tremblay & Smith, on brief), Charlottesville, for appellee.

Present: WILLIS, ELDER and ANNUNZIATA, JJ.

ANNUNZIATA, Judge.

In these appeals, James F. Scott ("husband") contends the circuit court judge erred by: 1) amending nunc pro tune a final order more than twenty-one days after its entry; 2) exercising jurisdiction in a matter involving custody and visitation in violation of the Uniform Child Custody Jurisdiction Act ("UCCJA"); 3) exercising jurisdiction in a matter involving custody and visitation in violation of the Federal Parental Kidnapping Prevention Act ("PKPA"); 4) failing to recuse himself; and 5) finding husband in contempt for failing to pay an award of attorney's fees. For the reasons that follow, we affirm the rulings of the circuit court.

I. BACKGROUND

Husband and Jean Hall Rutherfoord ("wife") were married in 1980 and divorced in 1986 by the Circuit Court of Albemarle County ("the circuit court"). Until 1995, the parties had joint custody of their two children, William Scott and Meredith Scott, born March 29, 1981 and March 23, 1983, respectively.

In August 1995, wife, together with the parties' children, moved from Virginia to the District of Columbia. Thereafter, the parties engaged in protracted litigation before the circuit court over matters relating to custody, visitation, and support. Wife petitioned for sole custody, which the court granted on a date undisclosed by the record. In June 1996, appellant purchased a house in the District of Columbia in order to facilitate visitation with his children.

On November 12, 1996, the circuit court entered an order ("the November order") which gave "continued" sole custody of the children to wife. The order also provided husband visitation with each child, setting out a detailed schedule that permitted visitation from 9:00 a.m. to 6:00 p.m. on specified days, varying from month to month, until September 1997. The order provided no visitation to husband with either child after September 28, 1997. In closing, the order provided, "nothing further to be done in this cause, the same is hereby ORDERED removed from the docket." The order was signed by counsel for both parties, by the children's guardian ad litem, and by the trial judge.

In April 1997, husband filed suit in the Superior Court for the District of Columbia, allegedly to enforce the circuit court's November order. Husband contended wife was actively interfering with the visitation schedule provided by the November order. Wife responded that husband was attempting to relitigate issues adjudicated in the circuit court. Wife cited husband's prayer for relief before the Superior Court for the District of Columbia, which asked the court, inter alia, to award him joint custody of his children, to establish weekly overnight visits with the children and substantial visitation during school breaks and summer vacations, and to appoint an independent mental health professional to evaluate the situation and advise the court as to the best interests of the children.

On May 30, 1997, wife moved the circuit court to strike the language in the November order removing the case from the court's docket and to reopen the case for the purpose of reviewing husband's visitation rights. During a telephonic hearing on June 5, 1997, husband objected to wife's motion to reopen, arguing: 1) the court lost jurisdiction over the case when the November order became final twenty-one days after its entry, and 2) jurisdiction over the case rested in the District of Columbia where the parties and their children resided.

The court disagreed, stating at the hearing that the November order was not intended to be a final order. The court recalled that the parties agreed at the time of the November order that the issue of visitation "was to come back up again after a year," the parties indicating that they wanted to get out of court and "see how [they got] along." The court noted that, under the circumstances of the case, a permanent visitation schedule could not be established at the time it entered the November order and that "we said something to the effect that it would run for one year. We had to be so precise about every particular part, every holiday and every other time. But there's no way that we could have done that the next three or four years at the time, so that was the reason that we were going to bring the matter back up again, maybe to modify it for a little more...."

On July 18, 1997, the court entered an order reopening the case and placing it upon the active docket. In the same order, the court also amended its November order muse pro tunc by deleting the language: "And nothing further remaining to be done in this cause, the same is hereby ORDERED removed from the docket."

On July 22, 1997, the Superior Court for the District of Columbia dismissed husband's suit, finding Virginia retained jurisdiction over the issues raised. In its order dismissing the case, the Superior Court stated that Virginia was the more appropriate forum to determine the custody issues, noting

[t]he issue is not simply whether the District of Columbia may assume jurisdiction, but whether it is in the best interest of the parties and the children for this forum to be utilized in light of the November 1996 Virginia Circuit Court's custodial order and its most recent June 5, 1997, telephonic hearing. Virginia already has a body of information, which this jurisdiction does not. Thus, it would appear that Virginia has continuing jurisdiction in this case.

On October 7, 1997, the circuit court heard argument on husband's motion to dismiss wife's request to reinstate the case. Husband contended the court did not have subject matter jurisdiction because the parties were residents of the District of Columbia and, under the PKPA and UCCJA, only the District of Columbia had jurisdiction. The court denied husband's motion, stating it "had the authority to enter a nunc pro tunc order" and that it "should retain jurisdiction until we have another hearing." On March 30, 1998, the circuit court held a scheduled status hearing and entered a final order in this ease.

II. AMENDMENT OF THE NOVEMBER ORDER NUNC PRO TUNC

Husband contends the circuit court erred by amending the November order nunc pro tunc more than twenty-one days after its entry. Husband further contends the court, having removed this case from its docket by the terms of the November order, lacked jurisdiction to reopen the case and reinstate it on the active docket by order of July 18, 1997. We disagree.

Under settled law, the divorce court generally has continuing jurisdiction to revise or alter its decree concerning the custody and maintenance of minor children. See Code § 20-108; Lutes v. Alexander, 14 Va. App. 1075, 1083, 421 S.E.2d 857, 862 (1992). Code § 20-108 provides in relevant part as follows:

The court may, from time to time after decreeing as [to the custody or visitation of minor children], on petition of either of the parents, or on its own motion or upon petition of any probation officer or superintendent of public welfare, ... revise and alter such decree concerning the care, custody, and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require.

The court's authority to alter a previous decree and enter a new decree "as the circumstances of the parents and the benefit of the children may require" is unaffected by the court's prior removal of the case from its active docket. See Code § 20-108. Although the court unnecessarily stated that it was deleting nunc pro tunc the language of the November order that removed the case from its docket, the court had the authority under Code § 20-108 to conduct further hearings and enter a new decree concerning the care, custody, and maintenance of the parties' minor children.¹

Accordingly, the trial court was not revising its order nunc pro tunc, despite its language to that effect and, therefore, that issue is not before us.

III. ALLEGED VIOLATION OF UNIFORM CHILD CUSTODY JURISDICTION ACT

Husband next contends the circuit court violated the UCCJA by continuing to exercise jurisdiction in this case after both parties and their children had moved to the District of Columbia.

Under the UCCJA, a court having competence to decide child custody matters has jurisdiction to modify a child custody determination if:

1. This Commonwealth (i) is the home state of the child at the time of the commencement of the proceeding, or (ii) had been the child's home state within six months before the commencement of the proceeding . . .; or

2. It is in the best interest of the child that a court of this Commonwealth assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth, and (ii) there is available in this Commonwealth substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or

3. The child is physically present in this Commonwealth and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected or threatened with mistreatment or abuse or is otherwise neglected or dependent; or

4. (i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision 1, 2, or 3

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