COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Annunziata 

Argued at Richmond, Virginia 

JAMES F. SCOTT 

 

v. Record No. 0461-98-2 

JEAN HALL RUTHERFOORD OPINION BY 

 JUDGE ROSEMARIE ANNUNZIATA 

JAMES F. SCOTT JULY 6, 1999 

v. Record No. 1010-98-2 

JEAN HALL RUTHERFOORD 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Dixon L. Foster, Judge Designate 

 Sanford K. Ain (James P. Head; R. Craig 

Wood; James M. Johnson; Sherman, Meehan, 

Curtin & Ain; McGuire, Woods, Battle & 

Boothe, on briefs), for appellant. 

 John K. Taggart, III (Patricia D. McGraw; 

Rachel L. Rust; Tremblay & Smith, on brief), 

for appellee. 

 In these appeals, James F. Scott ("husband") contends the 

circuit court judge erred by: 1) amending nunc pro tunc a final 

order more than twenty-one days after its entry; 2) exercising 

jurisdiction in a matter involving custody and visitation in 

violation of the Uniform Child Custody Jurisdiction Act 

("UCCJA"); 3) exercising jurisdiction in a matter involving 

custody and visitation in violation of the Federal Parental 

Kidnapping Prevention Act ("PKPA"); 4) failing to recuse 
himself; and 5) finding husband in contempt for failing to pay 

an award of attorney's fees. For the reasons that follow, we 

affirm the rulings of the circuit court. 

I. 

BACKGROUND 

 Husband and Jean Hall Rutherfoord ("wife") were married in 

1980 and divorced in 1986 by the Circuit Court of Albemarle 

County ("the circuit court"). Until 1995, the parties had joint 

custody of their two children, William Scott and Meredith Scott, 

born March 29, 1981 and March 23, 1983, respectively. 

 In August 1995, wife, together with the parties' children, 

moved from Virginia to the District of Columbia. Thereafter, 

the parties engaged in protracted litigation before the circuit 

court over matters relating to custody, visitation, and support. 

Wife petitioned for sole custody, which the court granted on a 

date undisclosed by the record. In June 1996, appellant 

purchased a house in the District of Columbia in order to 

facilitate visitation with his children. 

 On November 12, 1996, the circuit court entered an order 

("the November order") which gave "continued" sole custody of 

the children to wife. The order also provided husband 

visitation with each child, setting out a detailed schedule that 

permitted visitation from 9:00 a.m. to 6:00 p.m. on specified 

days, varying from month to month, until September 1997. The 

order provided no visitation to husband with either child after 

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September 28, 1997. In closing, the order provided, "nothing 

further to be done in this cause, the same is hereby ORDERED 

removed from the docket." The order was signed by counsel for 

both parties, by the children's guardian ad litem, and by the 

trial judge. 

 In April 1997, husband filed suit in the Superior Court for 

the District of Columbia, allegedly to enforce the circuit 

court's November order. Husband contended wife was actively 

interfering with the visitation schedule provided by the 

November order. Wife responded that husband was attempting to 

relitigate issues adjudicated in the circuit court. Wife cited 

husband's prayer for relief before the Superior Court for the 

District of Columbia, which asked the court, inter alia, to 

award him joint custody of his children, to establish weekly 

overnight visits with the children and substantial visitation 

during school breaks and summer vacations, and to appoint an 

independent mental health professional to evaluate the situation 

and advise the court as to the best interests of the children. 

 On May 30, 1997, wife moved the circuit court to strike the 

language in the November order removing the case from the 

court's docket and to reopen the case for the purpose of 

reviewing husband's visitation rights. During a telephonic 

hearing on June 5, 1997, husband objected to wife's motion to 

reopen, arguing: 1) the court lost jurisdiction over the case 

when the November order became final twenty-one days after its 

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entry, and 2) jurisdiction over the case rested in the District 

of Columbia where the parties and their children resided. 

 The court disagreed, stating at the hearing that the 

November order was not intended to be a final order. The court 

recalled that the parties agreed at the time of the November 

order that the issue of visitation "was to come back up again 

after a year," the parties indicating that they wanted to get 

out of court and "see how [they got] along." The court noted 

that, under the circumstances of the case, a permanent 

visitation schedule could not be established at the time it 

entered the November order and that "we said something to the 

effect that it would run for one year. We had to be so precise 

about every particular part, every holiday and every other time. 

But there's no way that we could have done that the next three 

or four years at the time, so that was the reason that we were 

going to bring the matter back up again, maybe to modify it for 

a little more . . . ." 

 On July 18, 1997, the court entered an order reopening the 

case and placing it upon the active docket. In the same order, 

the court also amended its November order nunc pro tunc by 

deleting the language: "And nothing further remaining to be 

done in this cause, the same is hereby ORDERED removed from the 

docket." 

 On July 22, 1997, the Superior Court for the District of 

Columbia dismissed husband's suit, finding Virginia retained 

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jurisdiction over the issues raised. In its order dismissing 

the case, the Superior Court stated that Virginia was the more 

appropriate forum to determine the custody issues, noting 

[t]he issue is not simply whether the 

District of Columbia may assume 

jurisdiction, but whether it is in the best 

interest of the parties and the children for 

this forum to be utilized in light of the 

November 1996 Virginia Circuit Court's 

custodial order and its most recent June 5, 

1997, telephonic hearing. Virginia already 

has a body of information, which this 

jurisdiction does not. Thus, it would 

appear that Virginia has continuing 

jurisdiction in this case. 

 On October 7, 1997, the circuit court heard argument on 

husband's motion to dismiss wife's request to reinstate the 

case. Husband contended the court did not have subject matter 

jurisdiction because the parties were residents of the District 

of Columbia and, under the PKPA and UCCJA, only the District of 

Columbia had jurisdiction. The court denied husband's motion, 

stating it "had the authority to enter a nunc pro tunc order" 

and that it "should retain jurisdiction until we have another 

hearing." On March 30, 1998, the circuit court held a scheduled 

status hearing and entered a final order in this case. 

II. 

AMENDMENT OF THE NOVEMBER ORDER NUNC PRO TUNC

 Husband contends the circuit court erred by amending the 

November order nunc pro tunc more than twenty-one days after its 

entry. Husband further contends the court, having removed this 

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case from its docket by the terms of the November order, lacked 

jurisdiction to reopen the case and reinstate it on the active 

docket by order of July 18, 1997. We disagree. 

 Under settled law, the divorce court generally has 

continuing jurisdiction to revise or alter its decree concerning 

the custody and maintenance of minor children. See Code 

§ 20-108; Lutes v. Alexander, 14 Va. App. 1075, 1083, 421 S.E.2d 

857, 862 (1992). Code § 20-108 provides in relevant part as 

follows: 

The court may, from time to time after 

decreeing as [to the custody or visitation 

of minor children], on petition of either of 

the parents, or on its own motion or upon 

petition of any probation officer or 

superintendent of public welfare, . . . 

revise and alter such decree concerning the 

care, custody, and maintenance of the 

children and make a new decree concerning 

the same, as the circumstances of the 

parents and the benefit of the children may 

require. 

The court's authority to alter a previous decree and enter a new 

decree "as the circumstances of the parents and the benefit of 

the children may require" is unaffected by the court's prior 

removal of the case from its active docket. See Code § 20-108. 

Although the court unnecessarily stated that it was deleting 

nunc pro tunc the language of the November order that removed 

the case from its docket, the court had the authority under Code 

§ 20-108 to conduct further hearings and enter a new decree 

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concerning the care, custody, and maintenance of the parties' 

minor children.1

 Accordingly, the trial court was not revising its order 

nunc pro tunc, despite its language to that effect and, 

therefore, that issue is not before us. 

III. 

ALLEGED VIOLATION OF UNIFORM CHILD CUSTODY JURISDICTION ACT 

 Husband next contends the circuit court violated the UCCJA 

by continuing to exercise jurisdiction in this case after both 

parties and their children had moved to the District of 

Columbia. 

 Under the UCCJA, a court having competence to decide child 

custody matters has jurisdiction to modify a child custody 

determination if: 

1. This Commonwealth (i) is the home state 

of the child at the time of the commencement 

of the proceeding, or (ii) had been the 

child's home state within six months before 

the commencement of the proceeding . . . ; 

or 

 2. It is in the best interest of the child 

that a court of this Commonwealth assume 

jurisdiction because (i) the child and his 

parents, or the child and at least one 

contestant, have a significant connection 

with this Commonwealth, and (ii) there is 

available in this Commonwealth substantial 

evidence concerning the child's present or 

future care, protection, training, and 

personal relationships; or 

 

 1 The court's jurisdiction under Code § 20-108, however, is 

further subject to the requirements of the UCCJA and PKPA, which 

we address below. 

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 3. The child is physically present in this 

Commonwealth and (i) the child has been 

abandoned, or (ii) it is necessary in an 

emergency to protect the child because he 

has been subjected or threatened with 

mistreatment or abuse or is otherwise 

neglected or dependent; or 

 4. (i) It appears that no other state would 

have jurisdiction under prerequisites 

substantially in accordance with subdivision 

1, 2, or 3 of this subsection, or another 

state has declined to exercise jurisdiction 

on the ground that this Commonwealth is a 

more appropriate forum to determine the 

custody of the child, and (ii) it is in the 

best interests of the child that this court 

assume jurisdiction. 

Code § 20-126(A). 

 Husband contends that none of the four above-referenced 

circumstances existed in this case to confer jurisdiction upon 

the circuit court once it had entered its November order. We 

disagree and find that the court properly exercised jurisdiction 

under Code § 20-126(A)(2) and (4). 

 The Virginia Supreme Court stated in Middleton v. Middleton

that, like the Model Act upon which it was based, the Virginia 

UCCJA was 

enacted to avoid jurisdictional competition 

and conflict with courts of other states in 

matters of child custody; to promote 

cooperation with courts of other states so 

that a custody decree is rendered in a state 

which can best decide the issue in the 

interest of the child; to assure that 

litigation over the custody of a child 

ordinarily occurs in the state that is most 

closely connected with the child and his 

family and where significant evidence 

concerning his case, protection, training 

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and personal relationships is most readily 

available; to assure that the courts of this 

state decline the exercise of jurisdiction 

when the child and his family have a closer 

connection with another state; to discourage 

continuing controversies over child custody; 

to deter abductions and other unilateral 

removals of children undertaken to obtain 

custody awards; to facilitate the 

enforcement of foreign custody orders and to 

avoid relitigating foreign custody decisions 

in this state so far as possible; and to 

promote the exchange of information and 

other forms of mutual assistance between 

courts of this state and those of other 

states concerned with the same child. 

227 Va. 82, 93, 314 S.E.2d 362, 367 (1984). 

 The record plainly reveals the Superior Court for the 

District of Columbia declined to exercise jurisdiction over this 

case on the ground that Virginia "has continuing jurisdiction." 

In doing so, the Superior Court considered whether its exercise 

of jurisdiction would be in the best interests of the parties' 

children "in light of the [circuit court's] November 1996 . . . 

custodial order and its most recent June 5, 1997, telephonic 

hearing," in which the circuit court clarified that it intended 

to revisit the issue of visitation after the schedule 

established by the November order expired. The Superior Court 

also cited the substantial body of evidence the circuit court 

had accumulated in adjudicating the issues of custody and 

visitation. 

 We accordingly find that the circuit court properly 

modified the November order pursuant to Code § 20-126(A)(4). 

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Under this provision, a Virginia court may exercise jurisdiction 

when another state has declined to do so and its exercise of 

jurisdiction is in the best interests of the children at issue. 

It is undisputed that the circuit court had jurisdiction over 

the parties' custody proceeding following wife's move to the 

District of Columbia in August 1995. As we earlier determined, 

under Code § 20-108 the circuit court retained continuing 

jurisdiction to amend its decree upon the entry of the November 

order. Subsequently, the Superior Court for the District of 

Columbia declined jurisdiction, finding Virginia was the more 

appropriate forum, that Virginia's jurisdiction was continuing, 

and that it was in the best interest of the children to have the 

matter adjudicated in Virginia. Finally, we note that the 

Superior Court's decision to decline exercising jurisdiction 

over this matter is consistent with one of the purposes of the 

UCCJA, which seeks to avoid the relitigation of foreign custody 

decisions. As reflected by the record, husband sought to raise 

in his pleading before the Superior Court issues determined 

approximately five months earlier by the Virginia circuit court, 

including the custody of the children and the visitation to 

which husband was entitled. 

 We also find no merit in husband's argument that, in the 

absence of continuing jurisdiction in Virginia, the circuit 

court cannot exercise jurisdiction based solely on the Superior 

Court's refusal to assume jurisdiction on forum non conveniens

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grounds. The Commentary to § 6 of the Model UCCJA, promulgated 

by the National Conference of Commissioners on Uniform State 

Laws and codified in Virginia at Code § 20-129, makes clear 

that, even if Virginia lacked continuing jurisdiction, it would 

not be improper for one of its courts to adjudicate a matter if 

it constituted the most convenient forum. 

 When the courts of more than one state 

have jurisdiction [under Code § 20-126] 

. . . , priority in time determines which 

court will proceed with the action, but the 

application of the inconvenient forum 

principle of [Code § 20-130] may result in 

the handling of the case by the other court. 

 While jurisdiction need not be yielded 

. . . if the other court would not have

jurisdiction under the criteria of the Act, 

the policy against simultaneous custody 

proceedings is so strong that it might in a 

particular circumstance be appropriate to 

leave the case to the other court even under 

such circumstances. 

Unif. Child Custody Jurisdiction Act § 6, 9 U.L.A. 219, 

commentary at 220 (1988) (emphasis added). 

 Finally, we find that the circuit court's exercise of 

jurisdiction was proper under Code § 20-126(A)(2), which permits 

the court to modify its November order based on the significant 

connection husband and the children maintain with the 

Commonwealth and on the presence of substantial evidence 

pertaining to the children's present and future personal 

relationships. Upon wife's move to the District of Columbia in 

August 1995, the parties engaged in proceedings concerning the 

custody and visitation of their children for approximately 

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fifteen months before the circuit court's entry of the November 

order establishing a temporary visitation schedule. During 

these proceedings in which the court held numerous hearings, 

heard testimony from both parties, and spoke with the children, 

a significant body of evidence was developed for the court's 

consideration. The children's guardian ad litem, a resident of 

Virginia, represented the children throughout the proceedings. 

Furthermore, notwithstanding husband's purchase of a house and 

his purported residency in the District of Columbia, the record 

also reveals that husband continued to own a residence and 

business in Virginia. In short, the record shows that the 

children and husband "have a significant connection with this 

Commonwealth" and that "there is available in this Commonwealth 

substantial evidence concerning [their] present or future care, 

protection, training, and personal relationships." Code 

§ 20-126(A)(2). Thus, the circuit court's exercise of 

jurisdiction was not improper under the UCCJA. 

IV. 

ALLEGED VIOLATION OF THE PARENTAL KIDNAPPING PREVENTION ACT 

 The husband further contends that the circuit court's 

exercise of jurisdiction violated the PKPA. See 28 U.S.C. 

§ 1738A. We find the mandates of the PKPA have no bearing on 

the issues raised in this case. 

 The PKPA was enacted in support of the same goals and 

policies that underlie the UCCJA. See Thompson v. Thompson, 484 

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U.S. 174, 177 (1988) ("[O]ne of the chief purposes of the PKPA 

is to 'avoid jurisdictional competition and conflict between 

State courts.'" (quoting Pub. L. 96-611, 94 Stat. 3569, 

§ 7(c)(5), note following 28 U.S.C. § 1738A)). However, for the 

purposes of this case, one important distinction exists. Unlike 

the UCCJA, which attempts to avoid the exercise of jurisdiction 

by multiple states over a single custody matter by providing a 

forum with jurisdiction to decide the case, the PKPA "only 

addresses whether another state's order is entitled to full 

faith and credit." Megan Clark, A Proposal to End 

Jurisdictional Competition in Parent/Non-Parent Interstate Child 

Custody Cases, 28 Ind. L. Rev. 65, 90 (1994). See Thompson, 484 

U.S. at 181, 183 ("[T]he principal problem Congress was seeking 

to remedy was the inapplicability of full faith and credit 

requirements to custody determinations. . . . The sponsors and 

supporters of the Act continually indicated that the purpose of 

the PKPA was to provide for nationwide enforcement of custody 

orders made in accordance with the terms of the UCCJA. . . . 

Congress' chief aim in enacting the PKPA was to extend the 

requirements of the Full Faith and Credit Clause to custody 

determinations . . . ."). 

 Here, the enforcement or modification of an out-of-state 

court order regarding custody or visitation was not in issue 

before the circuit court. Instead, the circuit court was asked 

to address and modify its own previous order. Under these 

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facts, the full faith and credit clause is irrelevant. As a 

result, the PKPA is also irrelevant. 

 Accordingly, we find the circuit court's exercise of 

continuing jurisdiction over the custody and visitation issues 

presented by the parties subsequent to the November order did 

not violate any provision of the PKPA. 

 V. 

COURT'S FAILURE TO RECUSE ITSELF 

 On December 8, 1997, husband moved the trial judge to 

recuse himself or transfer the case to the Superior Court for 

the District of Columbia. No testimony was received in 

conjunction with the allegations. Instead, husband filed two 

affidavits over wife's objection. Graeme Baxter's affidavit 

stated she overheard the trial judge make unkind remarks about 

husband to the court reporter and bailiff while she waited in 

the courtroom before testifying at a hearing on October 30, 

1997. According to Baxter, the judge stated that "the problem 

with this case is that [husband] has gone about this the wrong 

way because he is too rich," that "[husband] bought his way onto 

the board of one of the children's schools," and that "all of 

[husband's] money could not help him to have a relationship with 

his children." Baxter also alleged the judge made these remarks 

with a tone that indicated "strong animosity" toward husband. 

Husband, by affidavit, also alleged the judge's wife had asked 

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one of husband's former neighbors to "get the Garden Club girls 

to rally round [wife]" regarding the parties' dispute. 

 At a hearing on December 9, 1997, husband asserted that, 

based on the judge's alleged statements, he had lost faith in 

the judge's ability to act impartially, contending that his 

perception of bias required the judge to recuse himself or 

transfer the case to the District of Columbia. In rebuttal, 

wife's counsel proffered that he had contacted the court 

reporter, who could not verify that such statements had been 

made. The statement allegedly made by the judge's wife to 

husband's former neighbor was denied by the neighbor.2 Wife also 

raised hearsay objections to husband's use of the affidavits.3

 Addressing husband's allegations from the bench, the judge 

stated he held no feelings of animosity toward him and did not 

believe recusal was "necessary or appropriate . . . at this 

time." The judge entered an order denying husband's motion on 

 

 2 The denial was submitted by the proffer of wife's counsel. 

3

 The court did not expressly rule on this objection but 

stated from the bench: 

I don't think it's incumbent upon the Court 

to sit here and answer these affidavits or 

these allegations that are made in these 

affidavits. I, quite frankly, would think 

that the person would be brought here to 

testify before the Court as to what was said 

or wasn't said, rather than an affidavit, so 

that somebody can have an opportunity to find 

out, you know, cross-examine. However, maybe 

this is the proper way to proceed. I don't 

know. I suppose it is. 

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the same day. We find no error in the judge's denial of 

husband's motion to recuse. 

 Decisions regarding a judge's impartiality are to be made 

by the judge in the exercise of his or her discretion and will 

be reversed on appeal only upon a finding that the court abused 

its discretion in deciding the question. See Davis v. 

Commonwealth, 21 Va. App. 587, 591, 466 S.E.2d 741, 743 (1996). 

In the exercise of such discretion, "a judge must not only 

consider his or her true state of impartiality, but also the 

public's perception of his or her fairness, so that public 

confidence in the integrity of the judicial system is 

maintained." Buchanan v. Buchanan, 14 Va. App. 53, 55, 415 

S.E.2d 237, 238 (1992). 

 In this case, husband's claim of bias is without evidence 

to support it. Under Virginia law, unless subject to a hearsay 

exception, affidavits are generally not admissible as evidence. 

See Neal v. Commonwealth, 15 Va. App. 416, 421-22, 425 S.E.2d 

521, 524-25 (1992); Charles E. Friend, The Law of Evidence in 

Virginia § 18-28 (4th ed. 1993). "'When evidence apparently 

inadmissible is offered for a limited purpose, the party making 

the offer has the burden of making clear to the court his or her 

theory of admissibility.'" Neal, 15 Va. App. at 422, 425 S.E.2d 

at 525 (quoting State v. Davis, 269 N.W.2d 434, 442 (Iowa 

1978)). Other than the statements presented by affidavit, no 

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evidence in support of husband's allegations of bias was 

presented. 

 Even assuming the court admitted the affidavits 

notwithstanding their hearsay nature, we find no abuse of 

discretion in the court's denial of husband's motion to recuse. 

Nothing in the record indicates that any bias actually affected 

the proceedings. See Buchanan, 14 Va. App. at 56, 415 S.E.2d at 

238. Moreover, "'courts are practically unanimous in the view 

that neither the forming or expressing of an opinion upon a 

matter or issue which may come before him in a latter proceeding 

disqualifies a judge in a subsequent matter." Id. at 55, 415 

S.E.2d at 238. Finally, contrary to husband's argument, it is 

the public's perception of bias, not a litigant's personal 

perception, that a judge must consider when determining whether 

recusal is necessary to preserve the integrity of the judicial 

system. See id. We find no abuse of discretion in the trial 

judge's assessment of his own impartiality and in his refusal to 

recuse himself based on husband's personal perception of bias.

 V. 

FINDING OF CONTEMPT 

 At the hearing on December 9, 1997, wife informed the court 

of a bill for approximately $15,000 in attorney's fees and asked 

that she be awarded the full amount, rather than seventy-five 

percent of her fees as the court had done in the past. In 

support of her request, wife cited three new lawsuits filed by 

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husband against her and her inability to pay her current legal 

fees. Husband objected to wife's request. 

 The court decided to alter its previous award of fees and 

ordered husband to pay eighty percent of wife's fees, amounting 

to $12,905.38, within thirty days. The court offered no reasons 

for its decision, stating, "I think [the fees] ought to be 

altered a little bit, but we're not going to alter it a whole 

lot. I think it ought to be eighty percent and twenty percent." 

Husband immediately noted an objection without stating his 

grounds. On the court's order, husband wrote his objections 

above counsel's signature; these objections were based on the 

court's lack of jurisdiction and the court's failure to grant 

his motion to recuse. 

 On January 21, 1998, wife filed a Petition for Order to 

Show Cause why husband should not be held in contempt for 

failing to pay her attorney's fees. The court issued an Order 

to Show Cause and, on January 23, 1998, heard argument. 

 On January 30, 1998, the court entered a decree finding 

husband in contempt, but permitting husband to purge the 

contempt if he paid the fees or was legally relieved of the 

necessity to do so. Husband subsequently filed an irrevocable 

letter of credit in an amount sufficient to cover the attorney's 

fees. 

 Husband asserts two grounds upon which the court allegedly 

erred in finding him in contempt. Husband first argues the 

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court's order to pay wife's attorney's fees was void because the 

court, for reasons already discussed above, did not have 

jurisdiction. See Lating v. Commonwealth, 205 Va. 511, 513, 137 

S.E.2d 896, 898 (1964) ("[T]he disobedience of a void order is 

not contempt."). On the grounds stated earlier, we find this 

argument to be without merit. 

 Husband also contends the court erred in entering its order 

to pay attorney's fees without an evidentiary hearing or 

competent testimony to determine whether its award was 

reasonable. Because husband did not raise an objection on this 

ground before the circuit court, Rule 5A:18 bars husband from 

raising this claim for the first time on appeal. See Rule 

5A:18; Lee v. Lee, 12 Va. App. 512, 517, 404 S.E.2d 736, 738 

(1991) (en banc). Furthermore, having examined the issue raised 

herein, we find no reason to invoke any exception to the general 

applicability of Rule 5A:18. 

 For the reasons stated, we affirm the decisions of the 

circuit court. 

 Affirmed.

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