Soliman v. Soliman

• Decision Date: 20 July 2010
• Docket Number: Record No. 0030-10-4
• Court: Virginia Court of Appeals
• Parties: HAZEM E. SOLIMAN v. JESSICA LYNN SOLIMAN

HAZEM E. SOLIMAN

v.JESSICA LYNN SOLIMAN

Record No. 0030-10-4

Court Of Appeals Of Virginia

JULY 20, 2010

Brian M. O'Connor (O'Connor & Vaughn, LLC, on brief), for appellant.

Mary Elizabeth White (Surovell, Markle, Isaacs & Levy, PLC, on brief), for appellee.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Robert J. Smith, Judge

MEMORANDUM OPINION^*

JUDGE CLEO E. POWELL

Hazem E. Soliman ("father") appeals the circuit court's decision to grant the motion to reconsider filed by Jessica Lynn Soliman ("mother") in a child custody proceeding. On appeal, father argues that the trial court erred by refusing to enter an order incorporating its findings and rulings announced at the end of the July 13 and 14, 2009 custody hearing when this draft order was properly noticed and docketed and by considering mother's motion to reconsider without first entering this draft order. Father next contends that the trial court's decision to grant mother's motion to reconsider was erroneous because the motion was not noticed or docketed for hearing. Father also asserts that the trial court erred by considering an issue never raised in mother's written motion to reconsider but raised orally at a hearing scheduled only for entry of the final custody order, by granting the motion to reconsider on the basis that the father traveled with the child to foreign destinations other than those explicitly mentioned to the trial court, andby modifying custody primarily on this basis absent an explicit prohibition in a court ruling or order restricting travel. Finally, father contends that the trial court erred by "effectively ignoring or minimizing the mother's demonstrated failure to promote the relationship between [father] and child by (a) falsely accusing him of threatening to kidnap the child; (b) moving five hours drive, one-way away from the marital home; [and] (c) making unfounded accusations" that father sexually abused the child. For the reasons that follow, we affirm.

I. BACKGROUND

Father and mother were married on November 10, 2004, and divorced on December 31, 2007. One child was born of the marriage. On July 13, 2007, the trial court ordered joint legal custody and shared physical custody of the child with the child spending every other week with each parent.

In March of 2009, father filed a petition to modify custody and visitation. Mother filed a cross-petition to modify custody in June of 2009. A hearing was scheduled on the matter on July 13 and 14, 2009, and the trial court addressed the factors set forth in Code § 20-124.3. At the conclusion of the hearing, the trial court announced that it was awarding primary physical custody to father with mother having visitation every other weekend during the school year. The trial court further stated that mother would have custody for six consecutive weeks during the summer after which father could take child to Egypt to see his extended family. The trial court then ordered father's counsel to prepare an order for presentation to the trial court on July 31, 2009. Mother filed a motion to reconsider on July 24, 2009. At the July 31, 2009 hearing, mother's counsel informed the trial court that father had taken child to Kuwait rather than Egypt, as agreed upon at the previous hearing, and indicated that this behavior contributed to her motion for reconsideration. Without explicitly objecting to the motion to reconsider, father's counsel stated that father interpreted the order to allow him to take the child out of our country and thatthe destination country was immaterial. Based on this information, the trial court decided to hear mother's motion to reconsider and set the November 18, 2009 hearing for that purpose. On August 19, 2009, father filed a motion for pendente lite relief in which he argued that the trial court erred in its

decision to grant a new trial of this matter on the oral Motion of [mother's] counsel... (a) without proper notice to the [f]ather; (b) without any evidence or testimony (c) more importantly on the basis of a misleading representation to the [c]ourt and (d) without sufficient legal cause on the apparent basis that the [f]ather had somehow violated the [c]ourt's ruling from the bench referring to his travel plans to visit family in Egypt.

As relief, father asked the trial court to enter the draft custody order that he tendered for the July 31, 2009 hearing. Alternatively, he asked the court to enter a pendente lite order granting him physical "care and custody" of the child so that she may enroll in school where he lives and suspending his child support obligations pending further hearing. If the court was unwilling to grant either of the aforementioned requests for relief, father sought to reschedule the hearing on mother's motion to reconsider from November to September. Finally, father asked for "other and further relief as the [c]ourt deems appropriate." The trial court denied his motion on November 11, 2009.

Following a hearing on mother's motion to reconsider on November 18, 2009, the trial court ordered, inter alia, that as of December 3, 2009, the date the order was entered, child's primary residence shall be with mother and father shall get visitation. Father did not object to this order on the order itself. On the same day that the custody order was entered, father filed written exceptions to the order in a separate document. In this document, father stated that he objected because 1) the trial "court's reconsideration of its July custody rulings and findings are procedurally and substantively flawed;" 2) mother did not foster a relationship between father and child; and, 3) father's trip to Kuwait rather than Egypt was not a material circumstance thatshould affect the trial court's decision. He also incorporated the objections that he previously stated in his motion for pendente lite and other relief.

II. ANALYSIS

A. Preservation of Father's Objections

On appeal, father contends that the trial court erred by refusing to enter the order reflecting the July 13 and 14, 2009 custody hearing and by considering mother's motion to reconsider before entering the aforementioned order.¹ However, father's objections filed in response to the custody order simply state that the trial court's decision was in error because 1) the trial "court's reconsideration of its July custody rulings and findings are procedurally and substantively flawed;" 2) mother did not foster a relationship between father and child;

3) father's trip to Kuwait rather than Egypt was not a material circumstance that should affect the trial court's decision; and, 4) for the reasons stated in his motion for pendente lite relief. In his motion for pendente lite relief, father argued that the trial court erred by granting mother's motion to reconsider 1) without proper notice to the father; 2) without any evidence or testimony; 3) on the basis of a "misleading representation to the [c]ourt" by mother; and

4) "without sufficient legal cause on the apparent basis that the [f]ather had somehow violated the [c]ourt's ruling from the bench referring to his travel plans to visit family in Egypt." As relief, father asked the court to enter the draft order that he had previously submitted for entry on July 31, 2009. Nowhere in his objections to the final order or his motion for pendente lite relief did father argue, as he now does, that the trial court erred by not entering the order or by not doing so before granting a hearing on mother's motion to reconsider.

Rule 5A:18 mandated that "[n]o ruling of the trial court... will be considered a basis for reversal unless the objection was stated with the grounds therefor at the time of the ruling...." "In order to preserve an issue for appeal, 'an objection must be timely made and the grounds stated with specificity.'" McDuffie v. Commonwealth, 49 Va. App. 170, 177, 638 S.E.2d 139, 142 (2006) (quoting Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986)). "A party must state the grounds for an objection 'so that the trial judge may understand the precise question or questions he is called upon to decide.'" Scialdone v. Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010) (quoting Jackson v. Chesapeake & Ohio Ry. Co., 179 Va. 642, 651, 20 S.E.2d 489, 492 (1942)). "To satisfy the rule, 'an objection must be made... at a point in the proceeding when the trial court is in a position, not only to consider the asserted error, but also to rectify the effect of the asserted error.'" Id at 437, 689 S.E.2d at 724 (quoting Johnson v. Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731 (2002)). Rule 5A:18 exists "'to protect the trial court from appeals based upon undisclosed grounds, to prevent the setting of traps on appeal, to enable the trial judge to rule intelligently, and to avoid unnecessary reversals and mistrials.'" Reid v. Boyle, 259 Va. 356, 372, 527 S.E.2d 137, 146 (2000) (quoting Fisher v. Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52 (1988)). The Supreme Court of Virginia has consistently focused on whether the trial court had the opportunity to rule intelligently on the issues. Scialdone, 279 Va. at 437, 689 S.E.2d at 724.

"If [the] opportunity [to address an issue] is not presented to the trial court, there is no ruling by the trial court on the issue, and thus no basis for review or action by this Court on appeal." Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 526, 636 S.E.2d 416, 420 (2006). An appellate court can only "determine whether or not the rulings and judgment of the court below... were correct." Jackson, 179 Va. at 651, 20 S.E.2d at 493.

Id.

That said, the purpose of the rule is not "'to obstruct petitioners in their efforts to secure writs of error, or appeals....'" Li (quoting Kercher v. Richmond, Fredericksburg & Potomac R.R. Co., 150 Va. 105, 115, 142 S.E. 393, 395 (1928)). If the circuit court is aware of the party's objections and has had the opportunity to rule on them, Rule 5A:18 has been complied with and the party's...