Opinion
Record No. 1028-93-3
October 5, 1993
FROM THE CIRCUIT COURT OF SMYTH COUNTY CHARLES B. FLANNAGAN, II, JUDGE.
(Ronnie Carl Call, pro se, on brief).
(Danny R. Lowe; Lowe Money, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Ronnie Carl Call ("husband") appeals the decision of the circuit court granting a divorce a vinculo matrimonii to Eva May Reedy Call ("wife") and ordering custody of the couple's minor child to remain with wife. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Husband argues the trial court erred in denying his motion seeking to be transported to the court, in not appointing a guardian ad litem when he was unable to be present in court, and in denying his request to subpoena witnesses. He also raises the question whether the court's order granting wife custody of their minor child was in the child's best interests in light of his allegations of abuse of the child by wife.
Husband, appearing pro se, filed a Bill of Complaint seeking a divorce from wife on September 21, 1992. The Bill of Complaint was not properly served upon wife until November 10, 1992. Wife filed an Answer and Cross-Bill, and sought the appointment of a guardian ad litem to represent husband, who was incarcerated. Husband, in his Answer, asserted he wished to be present in court and to continue pro se, and asked the court not to appoint a guardian ad litem. Husband also filed a motion seeking to be transported from the Pulaski Correctional Unit #1 to the Smyth County Jail for the duration of the divorce proceeding.
The evidence properly before the trial court consisted of the deposition of wife and a witness on her behalf. The depositions of husband and his witness had been taken before wife had been properly served and thus were not evidence before the trial court.
On appeal, we construe the evidence in the light most favorable to the prevailing party, granting that party all inferences fairly deducible therefrom. McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990). A divorce decree based solely on depositions "is presumed correct and will not be overturned if supported by substantial, competent and credible evidence."Collier v. Collier, 2 Va. App. 125, 127, 341 S.E.2d 827, 828 (1986).
Husband asserts that the trial court erred in denying his motion seeking to be transported to Smyth County Jail in order to be present at the trial. Code § 8.01-410 authorizes a circuit court to order the presence of a convict or prisoner as a witness, but the exercise of that authority is expressly left to the court's discretion and its consideration of the importance of the witness' "personal appearance" and the reason for his incarceration.
The facts underlying the parties' grounds for divorce, having lived separate and apart for over one year, were uncontested. Husband was incarcerated for violence against wife. The custody of the parties' child had been determined in a previous hearing, and, as discussed below, husband apparently was not seeking immediate custody of the child. Considering these facts, we cannot say that the circuit court abused its discretion in refusing to order husband's presence at the hearing.
Husband asserts the trial court erred in not appointing a guardian ad litem for him. If husband were the defendant, Code § 8.01-9 would require the appointment of a guardian ad litem to represent him. See also Code § 8.01-2 (a "person under a disability" includes an imprisoned felon). However, husband commenced this action. There is no statutory requirement that a guardian ad litem be appointed for a plaintiff. Moreover, in his Answer, husband expressly asked the court to allow him to continue to represent himself and not to appoint a guardian ad litem. This is what the court did. We find that there was no error by the trial court in granting husband's request.
Husband also argues that the court erred in denying his request to subpoena witnesses and medical records. There is nothing in the record to support this allegation. Therefore, husband has not carried his burden to demonstrate that the trial court abused its discretion by barring him from submitting relevant, admissible evidence.
Wife had been granted custody of the couple's minor child in January 1992 following a separate court proceeding in which, it appears, according to husband's complaint, both parties were represented by counsel. In his complaint seeking a divorce, husband indicated that he would seek to amend the previous custody order upon his release from incarceration. At the time this matter was before the court, husband was still incarcerated. Thus, it does not appear that a request to change custody was even before the trial court.
Moreover, husband had the burden to prove that changed circumstances warranted a modification of the existing custody arrangement. "Where a prior order has formally divested a parent of custody, the burden rests on the parent to show that circumstances have so changed that it is in the best interest of the child to return custody to the parent, and that burden must be met by clear and convincing evidence." Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 21, 348 S.E.2d 13, 16 (1986). While husband alleged abuse of the couple's child by wife, no evidence supported these allegations. The only evidence before the court refuted husband's allegations. Therefore, husband did not carry his burden of proof and the court did not abuse its discretion in maintaining wife's custody of the minor child.
Accordingly, we affirm the decision of the trial court.
Affirmed.