Surles v. Mayer

Decision Date25 April 2006
Docket NumberRecord No. 1782-05-2.,Record No. 2064-05-2.
Citation628 S.E.2d 563,48 Va. App. 146
PartiesPhilip SURLES v. Kristan MAYER Philip Surles v. Kristan Mayer and Marty Cullen, Jr.
CourtVirginia Court of Appeals

Kristie L. Kane (Simmons, Brown & Kane, P.L.C., on briefs), Fredericksburg, for appellant.

Barry J. Waldman (Waldman & Associates, LLC, on briefs), for appellee Kristan Mayer.

No brief or argument for appellee Marty Cullen, Jr.



Appellant Philip Surles ("Surles") appeals the trial court's denial of his petition for custody of his biological daughter, Kayla. In a connected case, Surles also appeals the denial of his motion for visitation with Kayla's half-sibling, James, whose biological father is appellee Marty Cullen, Jr. ("Cullen"), and to whom Surles has no biological ties. We consolidated these separate appeals for purposes of oral argument, and, because the two cases involve similar factual and legal issues, we have also consolidated them for purposes of this decision.

On appeal, Surles argues that the trial court erred in determining that he lacked standing to pursue visitation with James because he is not a "person with a legitimate interest" within the meaning of Code § 20-124.1, even though he resided intermittently with James, Kayla, and their biological mother, appellee Kristan Mayer ("Mayer"). Surles further contends that the trial court erred in determining that, even if he is a "person with a legitimate interest," he failed to prove that awarding visitation would be in the best interests of the child. Surles also argues that the trial court erroneously: (1) held that granting him custody of Kayla would not be in the best interests of the child, (2) permitted Mayer to relocate to Florida with the children, and (3) admitted evidence that, while living with Mayer, Surles had been involved in relationships with other women. For the reasons that follow, we affirm the judgments below. We also deny Mayer's request for an award of the attorneys' fees incurred on appeal.1


On appeal, we view the evidence in the light most favorable to Mayer, the party prevailing below. Yopp v. Hodges, 43 Va. App. 427, 430, 598 S.E.2d 760, 762 (2004). So viewed, the evidence in this case establishes the following.

In November of 1998, Mayer and Surles began dating. At the time, Mayer had a ten-month-old son, James. During the early months of his relationship with Mayer, Surles saw James "maybe twice, three times a month." During the summer of 1999, however, Mayer started to work from her home, and Surles and James began to have contact "almost [ ] everyday." At that point, James had virtually no contact with Cullen, his biological father. As a result, Surles served as James' primary father figure.2

In February of 2000, Mayer and Surles moved in together. They separated soon afterwards, when Mayer discovered that Surles had "cheated on her." In the middle of July, however, the parties reunited, and, one month later, Mayer discovered that she was pregnant with Surles' child. In May of 2001, Mayer gave birth to Kayla. The parties never married, however, and, in December of 2002, they ended the relationship. Surles has since become engaged to another woman.

While Mayer and Surles were living together, Surles was, on at least two separate occasions, physically abusive toward Mayer. Specifically, Surles once "shoved Ms. Mayer in the bedroom over a laundry basket and onto the bed." On another occasion, Surles, who "had been drinking," "smack[ed]" Mayer while at the home of a family friend.

Following the parties' separation, Mayer filed a petition for custody of Kayla. On May 5, 2003, the Spotsylvania County Juvenile and Domestic Relations District Court entered a "Custody/Visitation Order" granting the parties joint legal custody of Kayla. According to the court order, Mayer obtained primary physical custody of Kayla, and Surles received the right to "reasonable and seasonable visitation" with the child. Following entry of this custody order, James occasionally accompanied his half-sister to Surles' home for visitation. James' last visit with Surles occurred in November of 2003.

In late 2003, Mayer's father moved to Florida. Accordingly, Mayer — who worked as a loan officer for a mortgage company — decided to accept a transfer offer to Florida. In January of 2004, Mayer notified Surles by letter that she intended to relocate to Florida in March of 2004.

After receiving the letter, Surles filed a motion to amend the May 2003 custody order on the grounds that Mayer "is moving to Florida." Surles requested that he "be granted physical custody of Kayla or that [Mayer] be prohibited from moving from Virginia," reasoning that, if Mayer were permitted to relocate, Kayla "will be effectively alienated from her Father." Surles also filed a petition seeking visitation with James, alleging that James "is a child whose visitation requires determination as provided by [Code § 16.1-241(A)(3)]."

After conducting an expedited hearing regarding Surles' petition to amend the May 2003 custody order, the juvenile and domestic relations district court denied Surles' request. By final order dated April 8, 2004, the court also held that Mayer was permitted to move to Florida with Kayla, further providing that Surles was to receive visitation with Kayla "for six consecutive days per month beginning April 2004." Immediately following issuance of the order, Mayer moved to Florida. The rest of Mayer's family — including her mother and stepfather — soon followed.

After Mayer moved to Florida, the juvenile and domestic relations district court scheduled a hearing to resolve the merits of Surles' petition for visitation with James. Cullen — James' biological father — did not appear at the hearing before the district court.3 By order dated September 10, 2004, the district court denied Surles' request for visitation with James. Surles appealed this decision to the circuit court, and he also appealed the April 2004 order allowing Mayer to relocate to Florida and denying Surles' petition to amend the custody arrangement regarding Kayla.

While the appeals to the circuit court were pending, Mayer and Surles had difficulties scheduling his court-ordered visitation with Kayla. These problems apparently stemmed from the parties' different work schedules — Mayer preferred to have the visitation begin on a weekend, so she would not have to miss work, whereas Surles — a firefighter who works four ten-hour days a week — preferred to have visitation begin on one of his days off, which are often weekdays. However, although Surles was only given six consecutive days of visitation with Kayla under the April 2004 visitation order, Mayer allowed him "seven or more" days of visitation on some occasions.

Also, because Mayer missed several office meetings while trying to convey Kayla to and from Virginia, she lost the job that enabled her to work at home. Instead, in September of 2004, she started a new office job as a loan processor with another mortgage company. As a result, Mayer enrolled Kayla in a "Head Start" program that lasts from approximately 8:00 a.m. until 5:15 p.m. Kayla also started gymnastics lessons in Florida, and James became involved in a Cub Scouts program. Also, after moving to Florida, Kayla stopped having problems with her allergies, which had troubled her since birth. Thus, Kayla's allergy specialist recommended that she stop taking her prescription allergy medication.

During the May 10 hearing before the circuit court, Surles testified that he had been a "father figure" to James and had "treated [James] just like he was my son." Surles also said that he "took [James] under [his] wing" because James' biological father "was only around ... a handful of times" during "the first couple years." Similarly, Surles' father testified that Surles' relationship with James was "just like any father would have with any son."

As to Kayla, Surles said that, when she comes to visit, "[s]he's a whole lot more clinging to me" than she had been before the move to Florida. Similarly, Surles' father — Kayla's grandfather — testified that, generally, Kayla "seems to be a little bit nervous and very glad to be here." Surles also said that, if he is awarded custody of Kayla, he has made arrangements for her to receive child care while he is at work.

At the conclusion of Surles' case-in-chief, Mayer moved to strike the petition for visitation with James, reasoning that there was no evidence that James would suffer actual harm in the absence of visitation. In response, Surles argued that "actual harm has been shown at this point" because the child has been "emotionally harmed by the fact that he has limited contact with Mr. Surles...." Mayer also made a second motion to strike, arguing that Surles lacked standing to seek visitation with James because he did not fall within the "statutory standard of a party who has a legitimate interest." In response, Surles argued that he fell within the statutory definition of "blood relatives and family members" because he is the father of James' half-sister. The court took both motions to strike under advisement.

Mayer, testifying on her own behalf, stated that her entire family now resides in Florida. Specifically, in addition to her father and stepmother, Mayer's brother, half-brother, stepbrother, uncle and seven-year-old cousin, grandfather, and step-grandparents live in Florida. According to Mayer, the children have become close to each of these members of her family. For example, Mayer stated that, in the year and a half since the family moved to Florida, the children visited with her brother (their uncle) between twelve and fifteen times, each visit lasting for an entire weekend.

Additionally, Mayer testified that Surles was involved...

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