COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, McCullough and Senior Judge Annunziata

Argued at Alexandria, Virginia

JOSEPH P. CRAVEN

MEMORANDUM OPINION* BY

v. Record No. 1023-11-4 JUDGE ROBERT P. FRANK

JANUARY 10, 2012

DEENA S. WILLIAMSON

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

David S. Schell, Judge

Melinda L. VanLowe (Greenspun Shapiro, P.C., on briefs), for 

appellant.

James Ray Cottrell (Christopher Wm. Schinstock; Cottrell, Fletcher, 

Schinstock, Bartol & Cottrell, on brief), for appellee.

Joseph P. Craven, appellant/father, appeals a visitation order entered April 25, 2011. On 

appeal, he contends the trial court erred in denying him visitation for the month of August, in failing 

to provide a legal or factual basis for its decision, and in failing to grant his motion for clarification. 

For the reasons stated, we affirm the trial court.

BACKGROUND1

On March 31, 2009, father and Deena S. Williamson, appellee/mother, entered into a 

“Parenting Agreement” setting forth custody and visitation, including a detailed visitation schedule 

 * Pursuant to Code § 17.1-413, this opinion is not designated for publication.

1 Mother, in her brief, asks that the appeal be dismissed under Rule 5A:8(b)(4)(ii) for 

failure “to ensure the record contains transcripts . . . necessary to permit resolution of appellate 

issues . . . .” However, the trial court’s final decree dated April 25, 2011 states, “the Court 

having made detailed findings from the bench on March 14, 2011 concerning the child custody 

factors set forth in Virginia Code § 20-124.3, said findings attached hereto as Exhibit A and 

incorporated herein in haec verba . . . .” Because the rulings from the bench, being incorporated 

by order, provide sufficient facts to address the assignments of error, we will not dismiss the 

appeal. 
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for their four children. However, the parties could not decide on a summer visitation schedule, with

that issue to be submitted to the circuit court if no decision could be reached by a date certain.

The parties were divorced by final decree entered November 18, 2009, which incorporated 

by reference the Parenting Agreement.

On September 22, 2010, mother filed a twelve-page petition for change of custody and 

visitation, praying for sole custody of the children and supervised visitation for father. After a 

four-day hearing, the trial court established a visitation schedule and explained the basis of his 

decision by addressing each of the ten factors of Code § 20-124.3. Of particular importance are 

factors two, three, four, and nine.

2

Under factor two, age, physical and mental conditions of each parent, the trial court 

indicated it considered the anger father exhibits towards the children.

As to factor three, relationship between each parent and child, the trial court found that 

generally father has a good relationship with all of the children, except K., who refuses to visit with 

father. There is some evidence the children are uncomfortable with father when he raises his voice 

and gets angry. The trial court indicated father’s weakest area in relating to the children is his 

emotional responses to the children. 

The trial court referred to an incident in July 2010, where one of the children said “my father 

stomped on me” or “my father stepped on me when he was angry,” requiring intervention by Child 

Protective Services. Father’s visitation was terminated for a period of time.3

 

 2 Father contends when analyzing factors two, three, four, and nine the court made no 

finding father abused the children.

3 While mother recites in detail as to the injury and Child Protective Services

intervention, none of those recitations are in the appellate record. Mother refers to the trial 

transcript, but gives no page references. Mother has the responsibility to provide this Court with 

an adequate record of the trial proceedings to enable us to reasonably understand her position 

and the underlying facts upon which her contention is based. Buchanan v. Buchanan, 14 

Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). An appellate court does not have the 
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The court further discussed each parent’s ability to meet the emotional, intellectual, and 

physical needs of the children, noting that father’s ability “breaks down when it has to interface with 

the mother’s.” The trial court then addressed factor four, the needs of the children and their other 

important relationships. The trial court opined it is not in K.’s best interest, at this time, to have a 

relationship with father, recommending therapy for her.

As to factor nine, family abuse, the court considered that there was “some testimony . . . of 

the father losing his temper and raising his voice.” However, evidence also indicated father had

been with the children without incident.4

The trial court found a material change in circumstances, i.e., that Child Protective Services

determined that father abused one of the children, based upon statements of the children that father 

stepped on them. One child was seriously hurt while in the care of the father and as a result of that 

incident, the children are afraid of him. The court ordered father into anger management 

counseling. 

The court ordered summer visitation as follows:

In the summer: the father will exercise four weeks in the summer, 

and it’ll be broken down into four one-week periods, beginning the 

second Monday in June, the fourth Monday in June, the second 

Monday of July, and the fourth Monday in July. And the visitation 

will run from 9:00 a.m., Monday, to 6:00 p.m., Sunday. This 

visitation provision overrides any other provisions of visitation that 

you may have in the agreement.

After the court announced the summer schedule, father’s counsel asked that the court

repeat the ruling. The court replied, “Four weeks: second Monday in June, fourth Monday in 

June, second Monday in July and fourth Monday in July.” The court also confirmed mother “has 

 

responsibility of scouring the record to understand the facts necessary to support a party’s legal 

position. Id.

4 We note that generally, the trial court found father to be concerned for the children and 

is very committed to them.
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them all other times in the summer.” The court entered a written decree on April 25, 2011 

confirming its oral pronouncement, which, inter alia, awarded four weeks visitation to father 

without any mention of the specific number of weeks to mother.

Father filed a “Motion for Clarification” on April 15, 2011, asking, inter alia, the trial 

court to clarify how the summer would be divided between the parents. Father claimed the 

court’s earlier statement that “it should be four weeks with the father and I think it’ll be five to 

five and a half weeks for the mother” is inconsistent with the actual ruling, giving mother eight 

to nine weeks.5

 At the hearing on the motion, the trial court characterized the motion as one for 

reconsideration, not for clarification, and there was nothing to reconsider. The court denied the 

motion, making it clear that it had awarded father four weeks summer visitation, and 

characterizing his earlier statement that mother would have five to five and a half weeks as 

“dicta.”6

This appeal follows.

ANALYSIS

Visitation

Appellant contends the trial court abused its discretion in denying him visitation for the 

month of August. He argues that the trial court’s considerations and findings of facts pursuant to 

 5 Settled principles provide that “[a] court speaks through its orders and those orders are 

presumed to accurately reflect what transpired.” McBride v. Commonwealth, 24 Va. App. 30, 

35, 480 S.E.2d 126, 128 (1997); see also Stamper v. Commonwealth, 220 Va. 260, 280-81, 257 

S.E.2d 808, 822 (1979) (holding that when a court’s statements from the bench conflict with its 

written order, the order controls). Therefore, any inconsistency perceived between the oral 

pronouncement and the written order is resolved in favor of the written order. 

6 Dicta generally refers to “that portion of an opinion ‘not essential’ to the disposition in 

the case.” Newman v. Newman, 42 Va. App. 557, 565, 593 S.E.2d 533, 537 (2004) (en banc) 

(quoting Cent. Green Co. v. United States, 531 U.S. 425, 431 (2001)). While not technically 

dicta, the trial court made it clear that statement was not part of its ruling.
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Code § 20-124.3 do not support a conclusion that appellant should have no visitation with his 

children for an entire month each year.

Code § 20-124.3 lists ten factors a trial court must consider when deciding the best 

interests of a child for determining custody and visitation of a child. Artis v. Jones, 52 Va. App. 

356, 363, 663 S.E.2d 521, 524 (2008). The statute concludes by directing that the trial court 

“communicate to the parties the basis of [its] decision either orally or in writing.” This Court has

interpreted this statute as “requir[ing] the trial court to identify the fundamental, predominating 

reason or reasons underlying its decision.” Kane v. Szymczak, 41 Va. App. 365, 372-73, 585 

S.E.2d 349, 353 (2003). “While communicating the ‘basis’ of the decision does not rise to the 

level of providing comprehensive findings of fact and conclusions of law, it does mean that the 

trial court must provide more to the parties than boilerplate language or a perfunctory statement 

that the statutory factors have been considered.” Lanzalotti v. Lanzalotti, 41 Va. App. 550, 555, 

586 S.E.2d 881, 883 (2003). A court “‘is not required to quantify or elaborate exactly what 

weight or consideration it has given to each of the statutory factors.’” Sargent v. Sargent, 20 

Va. App. 694, 702, 460 S.E.2d 596, 599 (1995) (quoting Woolley v. Woolley, 3 Va. App. 337, 

345, 349 S.E.2d 422, 426 (1986)). “As long as evidence in the record supports the trial court’s 

ruling and the trial court has not abused its discretion, its ruling must be affirmed on appeal.” Id.

Where the court hears evidence ore tenus, its findings are entitled to the weight of a jury 

verdict, and they will not be disturbed on appeal unless plainly wrong or without evidence to 

support them. Rice v. Rice, 49 Va. App. 192, 201, 638 S.E.2d 702, 707 (2006). Moreover, it is 

well established that “[o]n appeal, we view the evidence in the light most favorable to the 

prevailing party, granting that party the benefit of any reasonable inferences.” Denise v. Tencer, 

46 Va. App. 372, 397, 617 S.E.2d 413, 426 (2005).
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Here, the trial court expressly and painstakingly addressed each of the factors contained 

in Code § 20-124.3 in awarding visitation. Of particular consideration, the court elaborated on 

the importance of factors two, three, four, and nine, and determined that it was in the children’s 

best interests for father to have four weeks visitation with them during the summer and to have 

no contact with them in August. While the father may be dissatisfied with the court’s decision, 

he has not demonstrated how the court abused its discretion in fashioning its visitation schedule.

Motion for Clarification

Appellant argues the trial court erred in denying his motion for clarification. He contends 

that because the trial court made an inconsistent ruling, clarification was warranted. We disagree 

with the father.

In denying the motion, the trial court stated, “I have reviewed both of those pleadings 

carefully. In my judgment, the motion for clarification is a motion for reconsideration with a 

different title.” The trial court could not have been clearer in stating its ruling that the father is to 

receive four weeks of visitation during the summer. The court repeated its ruling twice in 

response to father’s questions during the March 14 hearing. The court again explicitly stated at 

the March 22 hearing that father is to receive four weeks of visitation during the summer. Thus, 

the court’s ruling was unambiguous and did not need clarification. The court properly denied 

father’s motion.

Attorney’s Fees on Appeal

Mother asks for attorney’s fees and costs incurred in connection with this appeal. 

The rationale for the appellate court being the proper forum to 

determine the propriety of an award of attorney’s fees for efforts 

expended on appeal is clear. The appellate court has the 

opportunity to view the record in its entirety and determine 

whether the appeal is frivolous or whether other reasons exist for 

requiring additional payment. 

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). 
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Having reviewed and considered the entire record in this case, we find husband’s appeal 

is frivolous and without merit. We hold that mother is entitled to reasonable attorney’s fees and 

costs. Accordingly, we remand and direct the trial court to award mother the reasonable 

attorney’ s fees she incurred in defending this appeal, as well as any attorney’s fees incurred by 

her on remand to determine such fees. See Miller v. Cox, 44 Va. App. 674, 688, 607 S.E.2d 126, 

133 (2005).

CONCLUSION

For the reasons stated herein, the decision of the trial court is affirmed. We remand to the 

trial court for an award of attorney’s fees.

Affirmed and remanded.