Varma v. Bindal

• Decision Date: 18 July 2017
• Docket Number: Record No. 2100-16-2
• Court: Virginia Court of Appeals
• Parties: AMIT VARMA v. MEENAKSHI BINDAL

AMIT VARMA v. MEENAKSHI BINDAL

Record No. 2100-16-2

COURT OF APPEALS OF VIRGINIA

JULY 18, 2017

UNPUBLISHED

Present: Judges Humphreys, Decker and O'Brien

Argued at Richmond, Virginia

MEMORANDUM OPINION^* BY JUDGE ROBERT J. HUMPHREYS

FROM THE CIRCUIT COURT OF HANOVER COUNTY

Theodore J. Markow, Judge Designate

Brian H. Jones (Ann Brakke Campfield; Barnes & Diehl, P.C., on briefs), for appellant.

John K. Cottrell (James Ray Cottrell; Amy W. Spain; Cottrell Fletcher Bartol & Cottrell, on brief), for appellee.

Dr. Amit Varma ("father") appeals the November 29, 2016 decision of the Circuit Court for the County of Hanover (the "circuit court") to enter a supplemental order to the final decree of divorce from Dr. Meenakshi Bindal ("mother"). Father contends that the circuit court erred in entering the supplemental order because it: (A) impermissibly altered the terms of the parties' Custody and Visitation Stipulation (the "custody stipulation"); (B) was not supported by evidence at the hearing; and (C) changed custody and visitation rights without considering the bests interests of the child.¹ Both parties also request attorney fees incurred in this appeal.

Mother and father (collectively, "the parties") were married on November 26, 2005, and had one daughter (the "child"), who is now approximately three years old. The parties were granted a divorce on November 29, 2016.

Among the primary issues in the divorce was father's admitted addiction and abuse of prescription drugs. Because of his addiction to prescription drugs as a medical doctor, father is required by the Board of Medicine to participate in the Physician's Assistance Program (the "program").² The custody stipulation, entered into by the parties on April 13, 2016, provided that mother would have sole legal and primary physical custody of the child. Regarding father's visitation with the child, the custody stipulation also provided,

In the event Dr. Varma violates the conditions of the Physician's Assistance Program, he shall be first obligated to immediately inform in writing Dr. Bindal, to include the exact nature of the violation. If the violation involves a relapse of his addictive behavior, visitation shall be suspended only until such time as the court determines he is once again in compliance and it is appropriate for him to resume visitation.

The custody stipulation did not contain a provision prohibiting the circuit court from making changes or adding provisions.

On November 29, 2016, the circuit court held a hearing in which it was to enter the final decree of divorce (the "final decree"), incorporate the custody stipulation into the final decree, and also hear argument on mother's motion to require father to provide access to mother regarding status of his physician's assistance program (the "motion to provide access").³ Father did not file a response to that motion.

At the hearing, counsel for mother proffered information indicating that father had possibly relapsed into his drug abuse, and thus that there should be an "efficient and reliable means of determining [father's] status within the . . . program." She argued that providing access to father's compliance with the program would help ensure the safety of the child during visitation, especially since father now lives in Pennsylvania, and mother lives in Virginia. Counsel for father argued that to grant mother's motion to provide access would essentially be "rewrit[ing] the part[ies'] agreement [on custody and visitation]." He argued that the circuit court could either enter the parties' custody stipulation as it was (as a part of the final decree), without amending it, or else would need to "go back to square one" and hear evidence and make rulings regarding the best interests of the child. However, father was not present at the November 29, 2016 hearing to contest any of mother's proffers.

The circuit court entered the final decree of divorce, which also affirmed, ratified, and incorporated, but did not merge, the custody stipulation. The circuit court also granted mother's motion to provide access and entered a supplemental order that granted mother access to father's program records (the "supplemental order"). The supplemental order provided that father was to authorize mother to "be able to obtain information directly from" the program, and that father was to "sign any and all documents and release forms necessary to authorize [mother] to obtain [the program] information." The order further stated that the "information obtained . . . pursuant to this order shall be maintained confidentially" and could only be disseminated to mother's counsel if the information showed father to be in violation of his program. Father now appeals.

A. Standard of Review

Each of the issues on appeal in this case we review under an abuse of discretion standard of review. "Matters of custody and determinations pertaining to the best interests of the children at issue, 'are left largely to the discretion of the trial court whose judgments will not be reversedin the absence of a showing that the discretion given has been abused.'" Ferguson v. Grubb, 39 Va. App. 549, 557, 574 S.E.2d 769, 772 (2003) (quoting Sutherland v. Sutherland, 14 Va. App. 42, 44, 414 S.E.2d 617, 618 (1992)). "Decisions involving the admission of evidence are reviewed on appeal for abuse of discretion by the trial court." Booker v. Commonwealth, 60 Va. App. 35, 40, 723 S.E.2d 621, 623 (2012). "A trial court's determination of a child's best interests 'is reversible on appeal only for an abuse of that discretion, and a trial court's decision will not be set aside unless plainly wrong or without evidence to support it.'" Rubino v. Rubino, 64 Va. App. 256, 261-62, 767 S.E.2d 260, 263 (2015) (quoting Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990)).

"A trial court, 'by definition abuses its discretion when it makes an error of law.'" Lanzalotti v. Lanzalotti, 41 Va. App. 550, 554, 586 S.E.2d 881, 883 (2003) (quoting Shooltz v. Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998)).

The Virginia Supreme Court has identified three principal ways by which a circuit court abuses its discretion: "when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment."

Rubino, 64 Va. App. at 262, 767 S.E.2d at 263 (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)).

B. Whether the Supplemental Order Impermissibly Changed the Parties' Custody Stipulation

Preliminarily, mother contends that father did not properly preserve this assignment of error because his brief "does not explain how the terms of the [supplemental o]rder conflict with the parties' Custody Stipulation."

Rule 5A:20(e) requires an opening brief to contain "[t]he standard of review and the argument (including principles of law and authorities) relating to each assignment of error.""[W]hen a party's 'failure to strictly adhere to the requirements of Rule 5A:20(e)' is significant, 'the Court of Appeals may . . . treat a[n assignment of error] as waived.'" Fox v. Fox, 61 Va. App. 185, 200, 734 S.E.2d 662, 669 (2012) (quoting Parks v. Parks, 52 Va. App. 663, 664, 666 S.E.2d 547, 548 (2008)). If an appellant fails to "fully develop[]" an argument in his brief, this Court need not address the issue. Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).

Here, father specifically argued that the supplemental order "was inconsistent with and fundamentally changed" the custody stipulation. Father cited Code § 20-109(C) and Rutledge v. Rutledge, 45 Va. App. 56, 608 S.E.2d 504 (2005), to support his contention that "the [circuit] court granted relief [in the supplemental order] that was not encompassed within the terms of the [custody stipulation]." Thus, father sufficiently developed his first assignment of error because he cited to specific authority and urged this Court to interpret such authority in a way that would favor father's view of the case, and this assignment of error is preserved.

Father contends that the supplemental order changes the parties' custody stipulation by adding a more restrictive layer to the requirement that father inform mother if he violates the terms of the program. Mother argues that it does not change the custody stipulation, but rather effectuates and enforces its terms.

Code § 20-124.2(E) states, "The court shall have the continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered" regarding the custody or visitation of a minor child. Further,

Code § 20-108 gives a divorce court continuing jurisdiction, after a final decree of divorce has been entered, to modify its decree with respect to the custody and maintenance of minor children. The court's power in this respect is unaffected by any contract entered into between husband and wife. Neitherratification nor incorporation of such a contract by the divorce decree affects the court's continuing jurisdiction in this regard.

Edwards v. Lowry, 232 Va. 110, 112, 348 S.E.2d 259, 261 (1986) (emphasis added).

To support his contention that the circuit court was not permitted to amend the parties' custody stipulation, father cites to Code § 20-109(C), which states,

In suits for divorce . . . if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed before entry of a final decree, no decree or order directing the payment of support and maintenance for the spouse, suit money, or counsel fee or establishing or imposing any other condition or consideration, . . . shall be entered except in accordance with that stipulation or contract.

(Emphasis added). However, father misrepresented the purpose of this...