Yopp v. Hodges

Citation598 S.E.2d 760,43 Va.App. 427
Decision Date06 July 2004
Docket NumberRecord No. 3165-02-3.
PartiesSherry D. YOPP v. Danny Lee HODGES.
CourtCourt of Appeals of Virginia

John T. Boitnott, Rocky Mount, for appellant.

Tonita M. Foster (Law Office of Tonita M. Foster, on briefs), for appellee.

(Deanna P. Stone; Rhodes, Ferguson & Stone, Ltd., on brief), Guardian ad litem for the infant child.

Present: ANNUNZIATA, CLEMENTS and KELSEY, JJ.

ANNUNZIATA, Judge.

Sherry D. Yopp (mother) appeals the trial court's decision awarding visitation with her minor child D.L.H. (child) to Danny Lee Hodges (maternal grandfather) and his wife (maternal grandmother) (grandparents, collectively). Mother contends the trial court applied the wrong burden of proof and, thus, failed to find by clear and convincing evidence that denial of visitation to the maternal grandparents would be harmful or detrimental to the child's welfare. She also contends that the trial court erred in finding that visitation with the maternal grandparents was in the child's best interests. At oral argument on this case, this Court asked the parties to brief whether or not the appeal should be dismissed for lack of jurisdiction based on mother's failure to timely mail or deliver a copy of her notice of appeal to the child's guardian ad litem, Deanna P. Stone. The guardian ad litem and maternal grandfather submitted briefs arguing that the appeal must be dismissed under this Court's decision in Hughes v. York County Dep't of Soc. Servs., 36 Va.App. 22, 548 S.E.2d 237 (2001). We hold that Hughes is distinguishable and decline to dismiss the appeal. We further hold on the merits that the trial court did not err in awarding visitation to the maternal grandparents.

I. Procedural Background

Danny Lee Hodges, the child's maternal grandfather, filed a petition in the juvenile and domestic relations district court on behalf of the maternal grandparents seeking visitation with the child. Following resolution of the matter by the juvenile and domestic relations district court, the case was appealed to the circuit court and tried de novo. As permitted by Code § 16.1-266(E)1 (formerly Code § 16.1-266(D)), the trial court appointed Deanna P. Stone as guardian ad litem to represent the child's interests in the matter. Neither party challenges the trial court's authority to appoint a guardian ad litem in this case to represent the interests of the child. The court's order of August 22, 2002, appointing the guardian ad litem was "[r]equested by" mother and "[s]een and agreed" to by maternal grandfather.

The child's natural father, who neither lived with mother nor had any contact with the child, joined in the maternal grandparents' request that the court award them visitation with the minor child. At the hearing, the guardian ad litem allied herself with the maternal grandparents and the child's natural father in requesting that the maternal grandparents be awarded visitation with the child. The circuit court found it was in the child's best interests to have visitation with the maternal grandparents on the second weekend of each month, on December 26 and 27, and for one week during summer vacation.2 The court's final order memorializing its ruling was entered on October 30, 2002. The guardian ad litem endorsed the final order under the heading "Seen." On December 2, 2002, mother timely filed a notice of appeal with the clerk of the circuit court indicating her intention to challenge the circuit court's final order, but she failed to deliver a copy of the notice of appeal to the child's guardian ad litem.3

II. Factual Background

On appeal, we view the evidence, and all reasonable inferences that may be drawn from the evidence, in a light most favorable to the maternal grandparents as the party prevailing below. Congdon v. Congdon, 40 Va.App. 255, 258, 578 S.E.2d 833, 835 (2003). So viewed, the record establishes that the child and mother lived in the home of the maternal grandparents for the first year and a half of the child's life. Mother moved to a residence immediately adjacent to the maternal grandparents' home, but the child remained with the grandparents. The child resided with the maternal grandparents in their home until age four and a half.

Around the time the child reached age five, mother married Jamie Yopp (Jamie). Jamie stayed with mother only occasionally. Grandfather testified that Jamie would "move in for a while and then move out and get an apartment and stay there for a while, then he'll move back in again, then move back out. It's just like a revolving door." Grandfather said that he was concerned "with the situation with [Jamie] moving in and out [because] there's no sense of stability to [the child's] life." Jamie and mother have since separated, although they still "socialize like human beings."

After mother's marriage, the child began spending more time with her. However, the maternal grandparents still cared for him a majority of the time because "he would go up there [to mother's house] and want to come back, and she would let him come back." The maternal grandparents essentially "raised [the child] until he was five or six years old." They ensured the child got on the school bus every morning, met him in the afternoon on his return, prepared dinner for him, and helped him with his homework. Grandfather helped the child plant sunflower and green bean seeds in their backyard. Grandfather said, "We dug a little spot and we planted it. He [the child] checked it every day, every day." Grandfather talked to a neighbor about "plowing up a place to plant a big garden" for the child, and the child became "all excited about [it]." Grandfather also took the child on fishing trips.

The relationship between mother and grandparents disintegrated in 2002 after mother denied the grandparents' request to take the child "to the beach." The grandparents subsequently filed a petition seeking visitation rights. Mother thereafter refused to allow the grandparents to see the child except for one weekend each month. Mother resisted the grandparents' petition for visitation on the grounds that the grandparents "badger[ed] [the child] with questions" when they visited with him and consumed alcohol in the child's presence. She also contended that grandfather has a "very violent" temper. As evidence of grandfather's violent temper, mother related an incident in which grandfather "picked up [her] bed and slammed it down because ... [mother's] boyfriends made him mad." However, mother admitted that this incident took place before she had any children.

When the child visits with his grandparents, mother does not allow them to touch, hug, or kiss the child. The child "cries to stay" with his grandparents when mother ends the visitation. Mother admitted that the child loves his grandparents "very much." However, she opined that severing contact between the child and his grandparents would have no effect on him.

The child's biological father expressly requested that the maternal grandparents be given visitation rights. The mother did not claim, nor does any evidence establish, that the biological father is an "unfit" parent.4See Troxel v. Granville, 530 U.S. 57, 68, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). The child's appointed guardian ad litem took the father's request into account and joined in the recommendation that the maternal grandparents be given visitation rights.

After hearing the evidence, the court ordered the parties to mediation. Mediation proved fruitless, however, and the trial court ultimately ruled that, "based on the evidence... I've heard, I do find that it would be in the child's best interest to continue to have some relationship and contact with these grandparents." It thus granted the maternal grandparents' petition for visitation with the child. This appeal followed.

III. Analysis
A. Mother's Failure to Notice the Guardian Ad Litem Did Not Create a Jurisdictional Defect Requiring Dismissal of her Appeal

We first address whether mother's appeal must fail on jurisdictional grounds because she failed to deliver a copy of the notice of appeal to the guardian ad litem. We hold that mother's failure does not give rise to a jurisdictional defect requiring dismissal of her appeal because the guardian ad litem in this case is not an indispensable party.

Rule 5A:6, which governs notices of appeal to this Court, states in relevant part:

No appeal shall be allowed unless, within 30 days after entry of final judgment or other appealable order or decree, counsel files with the clerk of the trial court a notice of appeal, and at the same time mails or delivers a copy of such notice to all opposing counsel and the clerk of the Court of Appeals.

(Emphasis added). Rule 5A:1 defines "opposing counsel" as "depending on the context, `counsel for the appellant' or `counsel for the appellee.'" Rule 5A:1 further defines "counsel for the appellee" as "one of the attorneys representing each appellee represented by an attorney, and each appellee not represented by an attorney." The Rules do not specifically define the term "appellee." See Hughes, 36 Va.App. at 25,

548 S.E.2d at 238.

In Hughes, we held that the guardian ad litem in a termination of parental rights case is an "appellee" within the meaning of Rule 5A:1 because the guardian had taken a position opposing that of the appellant. Id. at 26, 548 S.E.2d at 239. Central to the conclusion that the guardian ad litem was an appellee within the meaning of Rule 5A:1 was our determination that, "[i]n a proceeding to terminate parental rights, the guardian ad litem representing the interests of the children is an indispensable party to the appeal of the final decree." Id. at 26, 548 S.E.2d at 238. "Thus," we concluded, "in the present case, the guardian ad litem [,] [as an indispensable party,] constituted an appellee and `opposing counsel' for purposes of Rule [ ] 5A:6." Id. at 26, 548 S.E.2d at 239 (emphasis added)....

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