Opinion
Record No. 0069-92-4
December 22, 1992
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY THOMAS R. MONROE, JUDGE.
William T. K. Dolan, pro se.
No brief or argument for appellee.
Present: Judges Baker, Coleman and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
On March 15, 1991, the Circuit Court of Arlington County (trial court) entered a decree of divorce dissolving the bonds of matrimony between William T. K. Dolan (husband) and Marie-France Vareilles (wife). Subsequently, on December 13, 1991, the trial court entered a further decree directing husband to pay $15,365.25 attorney's fees and $1,000 sanctions for conducting "fruitless litigation." Husband appeals from each of these decrees, alleging multiple trial court errors. Wife neither appealed nor filed a reply brief.
The March 15, 1991 decree (1) granted the divorce pursuant to the provisions of Code § 20-91(9)(a); (2) confirmed, ratified, approved and incorporated by reference a property settlement agreement (PSA) entered into by the parties; (3) restored wife's maiden name; (4) continued the custody and primary residence of the child born of the marriage between the parties as provided in the pendente lite order; (5) reserved final judgment on custody of the child for a future hearing and further order; and (6) directed husband to pay $723 per month for the child's support until the child attained the age of nineteen years, completed high school or was emancipated, whichever first occurred. The December 13, 1991 judgment order required husband to pay counsel fees and $1,000 for sanctions imposed during the course of the proceedings. As the parties are fully conversant with the facts contained in the record, we recite only those necessary to an understanding of our opinion.
After a number of preliminary hearings, the matter was referred to a Commissioner in Chancery and scheduled for hearing on its merits. At the hearing, the parties advised the commissioner that the only evidence to be presented was (1) that which would show the parties had been separated for the sufficient time and under appropriate circumstances to warrant an a vinculo decree pursuant to Code § 20-91(9)(a); and (2) for the introduction of the PSA to be incorporated in the decree of divorce subsequently entered by the trial court.
The commissioner reported to the trial court that all jurisdictional matters had been proved; that the parties were adults and not members of the armed forces; that the separation had been continuous for the time required to entitle them to a divorce under Code § 20-91(9)(a); and that the PSA settled their respective property rights and should be incorporated into the decree of divorce when granted. The only remaining issues concerned those pertaining to the child.
On August 9, 1990, at one of the interim hearings, husband made the following representation to the trial judge:
MR. DOLAN: Judge Monroe, this case is about a son's birth right to have a deep and abiding relationship with his father and likewise a father's relationship to have a deep and continuing physical relationship with his son to share in the joys of parenting and childhood and of bringing up a child and the child being brought up by his father.
The case also involves the same rights and relationships with the child's mother. Trial courts throughout the Commonwealth daily are confronted with child custody and visitation issues. It is not helpful to the trial court's resolution of custody and visitation issues to have unnecessary pleadings and irrelevant arguments excessively clouding the true issue. Here, notwithstanding the multiple errors alleged, we believe the issue is simply with whom residential custody of the child shall be ordered and what rights of custody or visitation should be awarded the other party. Those issues have not been finalized by the trial court.
We have reviewed the record and carefully considered the errors alleged and find that no conflict has been shown that required the trial judge to recuse himself; that the trial court did not abuse its discretion in holding that husband conducted fruitless litigation, in assessing $1,000 in sanctions, in awarding attorney's fees, in not requiring wife's attorney to provide husband with copies of his charges prior to the hearing, or in admitting evidence from an attorney not involved in this case but experienced in the practice of divorce law as to the reasonableness of those charges.
We further find that the trial court did not err in quashing the subpoenas and excluding the records of the general files of the Arlington County Circuit Court that husband alleges would have proved gender discrimination by the judges of that court in awarding custody, or in quashing the request for interrogatories and requests for admissions that greatly exceeded the limit permitted by the Rules.
Husband argues that the trial court erred in entering sua sponte a final judgment on December 13, 1991 without hearing the merits of the matters included in that decree. We find no error. Evidence had been taken at prior hearings relative to counsel fees and the sanctions decision previously made. Only the amounts of the awards remained to be included in a decree.
The remaining issues, although stated in various forms, relate to the residential custody of the infant child and visitation or custody to the non-residential custodian. Husband's primary concern in this appeal, as it apparently has been throughout the many hearings, motions and arguments made, is the custody of the child born of the parties' marriage. The divorce decree specifically reserved the issue of child custody for future consideration. At oral argument before this Court, husband conceded that he had not requested such hearing. The issue raised concerning change of circumstance is not properly before this Court. All questions relative to custody may be yet decided pursuant to the reservation contained in the divorce decree.
Husband filed a lengthy brief on appeal alleging sixteen reversible errors, one of which contained seven sub-sections. Included are his arguments that numerous errors made at thependente lite hearing on custody and support require that we reverse the judgment of the trial court and order a new trial. We disagree. None of the sub-issues raised by the allegedpendente lite errors constitutes a legal reason to reverse either the judgment contained in the divorce decree or subsequent awards of counsel fees and sanctions. The evidence before the commissioner and his report supports the trial court's award of an a vinculo decree without the necessity of further evidence. The PSA settled the property issues that could properly be raised concerning the property and support rights of the parties. Husband's remedy relative to the custody issue is reserved in the March 15, 1991 decree and awaits his request for a hearing. At oral argument he conceded that he has never sought the custody hearing reserved in the March 15, 1991 divorce decree. It is in the best interest of the child that an opportunity to secure a relationship with each parent be given, while giving the child stability in his other place of residence. That issue was not finalized. The courthouse door remains open and the trial court awaits the request by husband to be heard according to the decree the court entered on March 15, 1991.
Finding no error, the judgments of the trial court are affirmed.
Affirmed.