Opinion
Record Nos. 0534-92-2 and 1678-92-2
June 15, 1993
FROM THE CIRCUIT COURT OF HENRICO COUNTY LEE A. HARRIS, JR., JUDGE.
(Murray L. Steinberg, pro se, on briefs).
(Murray J. Janus; Deanna L. Dworakowski; Bremner, Baber Janus, on briefs), for appellee.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the records and briefs of the parties, we conclude that these appeals are without merit. Accordingly, we affirm the decisions of the trial court. Rule 5A:27.
Murray L. Steinberg ("father") appeals two orders of the circuit court regarding custody and visitation of his daughter, Chelsea. The orders were issued while the primary custody determination was on appeal in this Court. Steinberg v. Steinberg, Record Nos. 1839-91-2, 2036-91-2 and 2171-91-2 (Va.Ct.App. February 9, 1993). The orders resulted from show cause orders filed by both father and Katherine T. Steinberg ("mother") regarding compliance with existing court orders.
Record No. 0534-92-2
Father filed a show cause order alleging that mother had denied him court-ordered visitation. In response, mother filed a notice that sanctions would be sought against father for filing frivolous pleadings, and that contempt would be sought for father's failure to return Chelsea on time following a scheduled visit. Mother also moved that father's visitation be suspended pending his examination by a psychiatrist. Father filed a amended show cause order seeking a revision of the custody plan. Following a hearing during which the court took evidence, reviewed exhibits and heard argument from counsel for mother and from father, proceeding pro se, the court issued an order on February 18, 1992. It found that neither party was in contempt regarding the court's orders for visitation. The court did, however, order father to pay $850 of mother's attorney's fees and costs, finding that father's pleadings were filed for improper purposes and constituting a needless increase in litigation costs.
On appeal, father raises nine allegations of error:
I. The court erred in holding father to the same standard as an attorney in sanctioning him for his pleadings;
II. The court did not have jurisdiction over the case while it was on appeal to this Court;
III. If the court had jurisdiction to hear the show cause orders, the court erred in sanctioning father for filing the pleadings;
IV. The court erred in failing to find mother in contempt for violating the court's order;
V. The court erred in failing to sanction mother for her motion to suspend father's visitation until he is examined by a psychiatrist;
VI. The court erred in not amending the custody decree;
VII. The court erred in its initial assumption of jurisdiction in April 1991;
II., III. and VI.
As to these arguments, we find no error. The court has authority to enforce its orders, even while they are on appeal. The court correctly held, however, that it could not amend the custody determination while that issue was on appeal.Greene, 223 Va. at 212, 288 S.E.2d at 448.
IV.
Father complains that the trial court did not find mother in contempt. The court acted within its discretion in declining to find either mother or father in contempt for what it determined to be relatively minor violations of the child custody and visitation orders. See Wells v. Wells, 12 Va. App. 31, 36, 401 S.E.2d 891, 894 (1991). These decisions are not plainly wrong or without evidence to support them. Code § 8.01-680. See Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d 666, 669 (1991).
V.
Father contests the court's failure to sanction mother and her attorney for moving to suspend his visitation until he is examined by a psychiatrist. He alleges that this motion is frivolous and harassing under Code § 8.01-271.1. "We apply an abuse-of-discretion standard in reviewing a trial court's award or denial of a sanction." Oxenham v. Johnson, 241 Va. 281, 287, 402 S.E.2d 1, 4 (1991). We see no abuse of discretion in the court's decision on this issue.
VII.
Father attempts to challenge the circuit court's initial assumption of jurisdiction in 1991. This portion of the case has already been before us on review in Steinberg v. Steinberg, Record Nos. 1839-91-2, 2036-91-2 and 2171-91-2 (Va.Ct.App. February 9, 1993). The trial court's actions were affirmed, and are not subject to another review upon this appeal.
VIII.
Father complains that the record does not include his waiver of trial by jury on his custody and visitation allegations. The record contains no indication that father requested trial by jury on this issue. See generally Code § 8.01-336. The cases he cites relate to criminal prosecutions rather than equitable cases and are therefore inapposite.
IX.
Father's final objection to this order is that the trial court did not consider all the evidence in the record then before this Court on appeal. The trial judge has conducted all the proceedings in this case and was therefore familiar with all the evidence and pleadings. Father was free to offer copies of anything from the record which he deemed relevant. The trial court did not err.
Record No. 1678-92-2
In this appeal, father challenges an order entered by the trial court on August 10, 1992. In that order the trial court ruled on father's motion to show cause, mother's motion to hold father in contempt, father's motion to suspend execution of a prior order requiring father to pay a sum of attorney's fees, and mother's motion to require father to sign a registration form for the child to attend a certain day care center. The trial court, after hearing evidence, reviewing exhibits and hearing argument from both sides, found that the day care center is an appropriate facility for the child, that mother has never done anything or made any decision contrary to the best interests of the child, and that father's other allegations "are completely without merit." The trial court ordered that father's signature was unnecessary for the day care registration, denied the motions of both parties for contempt, denied father's motion to suspend execution of a prior order, and ordered father to pay $350 in attorney's fees to mother's attorney pursuant to Code § 8.01-271.1.
On appeal, father makes the following allegations:
I. The court erred in finding that father's allegations had no merit;
II. The court erred in ruling on matters not raised by either party;
III. The court erred in ordering that father's signature is not needed on the day care registration form because that order constitutes a modification of the order requiring joint legal custody, then on appeal in this Court;
IV. The court erred in imposing sanctions under Code § 8.01-271.1;
V. The court erred in declining to hear relevant evidence;
VI. The trial judge erred in refusing to recuse himself after making biased remarks about father;
VII. The court erred in not sanctioning mother under Code § 8.01-271.1.
I. and III.
The trial court has discretion to determine the care, custody, support and maintenance of a minor child "and the extent to which those rights and responsibilities shall be apportioned between estranged parents." Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986). Here, the court's ruling regarding the day care center was necessary to effectuate its order on custody and visitation, then on appeal. The court did not abuse its discretion in its disposition of father's claims. Therefore, father's allegations are without merit.
II.
Father complains that the trial court ruled on the suitability of the day care facility for the child when that issue was not specifically brought before the court by either party. The conduct of a trial or hearing is in the sound discretion of the trial court. See Cunningham v. Commonwealth, 2 Va. App. 358, 365, 344 S.E.2d 389, 393 (1986). The trial court determined that resolution of this issue was necessary to ensure the best interests of the child. See D'Auria v. D'Auria, 1 Va. App. 455, 461, 340 S.E.2d 164, 168 (1986). This ruling is within the discretion of the trial judge and is not plainly wrong or without evidence to support it. Box v. Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986).
IV. and VII.
These issues concern the trial court's imposition of sanctions on father under Code § 8.01-271.1 and its refusal to impose such sanctions on mother. These decisions do not constitute an abuse of discretion. See Oxenham, 241 Va. at 287, 402 S.E.2d at 4.
V.
Father alleges that the trial court declined to hear relevant evidence during the hearing. "The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). Father, proceeding pro se, was limited in his direct and cross examinations of witnesses from straying from the issues of that hearing or from repeating evidence which the judge had heard at prior hearings. Our review of the record convinces us that the trial court did not abuse its discretion.
VI.
Father contends that the trial judge should have recused himself after making biased statements about father. Father made no such motion to the court. "It is within the trial judge's discretion to determine whether he harbors bias or prejudice which will impair his ability [to conduct a fair hearing]." Terrell v. Commonwealth, 12 Va. App. 285, 293, 403 S.E.2d 387, 391 (1991). The judge's comments reflected his concerns about the motivation for father's behavior towards mother and his frequent recourse to the courts. We find no bias or prejudice in the judge's comments or in his conduct of the proceedings.
For the reasons stated, we affirm the decisions of the circuit court.
Affirmed.