COURT OF APPEALS OF VIRGINIA

Present: Judg es Elder, Bray and Senior Judge Overton

GREGORY JUDE DeVEAU MEMORANDUM OPINION * v. Record No. 09 15-01-4 PER CURIAM OCTOBER 2, 2001 MUTSUMI AZEMOTO

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Jane Marum Roush, Judge (Ted Kavrukov; Kavruk ov & DiJoseph , LLP, on brief), for appellant. (Timothy J. McGary, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Gregory Jude DeVeau , father, appeal s a decision of the trial judge. On appeal, he argues the trial judge erred by: (1) denying his motion to transfer jurisdicti on of child custody and visitation issues to Maryland; (2) de nying a rule to show cause finding Mutsumi Az emoto, mother, in contem pt; and (3) re moving the requirement of the chil dren's supervised visi tation with mother. Upon reviewing the reco rd and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27. BACKGROUND Father and mother we re divorced by fina l decree entered in the trial court on August 10, 1995. On May 1, 1995, the trialjudge entered an order awarding custod y of the parties' two children to father and reservin g supervised vi sitation with mother. Mother had at tempted to abduct one of the children to Japan. On August 11, 2000, father filed a motion to transfer custody and visitation issues to Annapolis, Maryland , where he had been residing with th e children. Mother oppo sed the motion, and she filed a motion to modify visitation, requesting, among other things, that the tria l judge terminat e the requirem ent that her visitation with the children be supervised. Fath er also filed a petition for a rule to show cause, contendi ng that mother had failed to pay co urt-ordered atto rney's fees an d that she had failed to timely pay cour t-ordered chil d support. The trial judge conducted a hear ing on January 25, 2001 concerning all of the motions. On March 9, 2001, the trial judge entered an order ruling on the issues. The trial judge lifted the restriction of the chil dren's supervised visi tation with mother. The trial judge also refused to fi nd mother in cont empt and denied father's motion to tran sfer the case to Mary land. Father appeals these rulings. MOTION TO TRANSF ER JURISDICTION Under the former Uniform Child Custody Jurisd iction Act (UCCJA), 1 "[a] court which has jurisdicti on [to modify a decree]

1 On July 1, 2001, the legislature repealed the UCCJA and enacted the Uniform Child Custody Jurisdiction and Enforcement - 2 -may decline to exercise its jurisdiction . . . if it finds that it is an inconvenient forum . . . an d that a court of another state is a more appropri ate forum." Code § 20-130(A). We will reverse a trial court's de cision whether to exercise its jurisdic tion only upon a finding of ab use of discretion. See Johnson v. Johnson , 26 Va. App. 135, 147, 493 S.E.2d 668, 673 (1997). Father has not demons trated abuse of disc retion on the part of the trial judge in exercising jurisdiction over this matter. Although father an d the children ha ve lived in Mary land since June 1998, Virginia was the home state of the chil dren at th e start of the proceedings. In addition, mo ther continues to be domiciled in Virginia. The Virginia courts have ruled on visitation matters involving these pa rties since 1995 . Indeed, in her ruling, the trial judge commen ted that the file in th is case is the biggest file of any case in the Fairfax Coun ty Circuit Court. Furthermore, the trial judg e indicated that she lacked authority to transfer the case to Ma ryland because there was no pending matter concerni ng these parties in a Maryland court. In addition, father 's motion requested on ly that the case be transferred to "Annapolis, Maryland" with out further identification of the appropriat e court. "[B] efore the trial court should defer juri sdiction to an other forum, it should know

Act. Code §§ 20-146.1 through 20-146.38. This case involves the former UCCJA as it was in effect at the time of the proceeding.

- 3 -the identity of that forum." Mubarak v. Mubarak , 14 Va. App. 616, 622, 420 S.E.2d 225, 228 (1992). The trial judge furthe r stated that if "somethi ng" was filed in Maryland , then she would confer with a Maryland judg e about which state would be the most appropriate forum. See Code § 20-130(D). Moreover, inform ation regarding the issues involved in this matter, whether mo ther was in contempt of court and whet her mother should be allowe d unsupervised visitation with the ch ildren, was more readily available in Virginia, mo ther's residenc e. While the children's residence in Maryland may merit a future determination that Virginia is an inconvenient forum, we cannot say the trial judge abused her discreti on in this instance by refusing to make that determination prior to ruling on father 's rule to show cause for violations of existing court orders and on mother's motion for unsupervised visitation. Therefore, the Virg inia trial court had jurisdiction under former Code § 20-126 (A)(1)(i). RULE TO SHOW CAUSE By court order ente red on June 28, 1995 , mother was ordered to pay father $47,837 for his attorney 's fees. Mother did not pay the attorney's fees. Father filed a petition for a rule to show cause. On September 18, 2000, anothe r trial judge of the Fairfax County Circuit Court is sued the rule to show cause. However, prior to the hearing on the rule, the trial judge in this matter ruled that because ther e had been a standing order in the case that no motions in this case were to be docketed without her prior

- 4 -approval, the prev ious rule was se t aside. The tr ial judge then heard evidence concerni ng father's rule to show cause at the January 25, 20 01 hearing. Father contends th e trial judge er red in not proceeding on the rule to show cause issued by the other trial judg e. However, a trial court has "inherent auth ority to administ er cases on its docket." Yarbrough v. Commonwealth , 258 Va. 347, 35 6, 519 S.E.2d 602, 605 (1999), aff'd , ___ Va. ___, ___ S. E.2d ___ (2001). Because father's rule was heard by th e trial judg e who was familiar with th e case, we cannot say th e trial judg e erred in hearing the eviden ce on the rule to show cause. Evidence was presente d that father discha rged his attorney's fees in bankrupt cy proceedings. Moreover, mo ther presented evidence that she ha d financial diff iculties. The trial judge ruled that mother's fa ilure to pay father's attorney's fees was not contem ptuous. "On appellate re view of this issue, we may reverse the ruling of the trial court only if we find that it abused its discretion. A trial court may hold a[n] . . . obligor in contem pt for failure to pay where such failure is based on unwillingness, not inability, to pay." Barnhill v. Brooks , 15 Va. App. 696, 704, 427 S.E.2d 209, 215 (1 993). We cannot conclude , based on the evidence in this record, that the trial judge abus ed her discretion.

- 5 -UNSUPERVISED VISITATION A party seeking to modify an existing custody order bears the burden of proving that a change in circumstances has occurred since the last custody determination and that the circumstances warrant a change of custody to promote the children's best interests. In deciding whether to modify a custody order, the trial court's paramount concern must be the children's best interests. However, the trial court has broad discretion in determining what promotes the children's best interests. Brown v. Brown , 30 Va. App. 532, 537- 38, 518 S.E.2d 336, 338 (1999) (citatio ns omitted). The requiremen t of supervised visita tion with mother was imposed in June 1995. Thus, the requirement had be en in effect for almost six years. The trial judg e found that since 1995, the mother and the children had formed stronger ties to the co mmunity. After mother attempted to abduct one of th e children, the trial court required mother to surrender he r passport to the court. Since that time, mother had twice retr ieved her passpo rt from the court and traveled to Japan withou t incident. Up on her return from Japan, mother then returned her passport to the tria l court. Mother is employ ed in the area and has improved her ability to speak English. Father presented test imony from Dr. Victor Elian that mother still presented a flight risk. Ho wever, Dr. Elian admitted that he had had no contact with mother since Janu ary 1996, and he met with mother once in 19 95. The trial judge sp ecifically found that

- 6 -these factors call ed into question the weig ht she gave his opinion testimony. "In determining the we ight to be give n the testimony of an expert witness, the fact finder may consider the basis for the expert's opinion." Street v. Street , 25 Va. App. 380, 387, 488 S.E.2d 665, 668-69 (1997) ( en banc ). The tria l judge found that mother presented no future risk for ab ducting the children. The trial judge also indicated she acce pted the testimony of Dr. Verna M. Fields, a clinical and forensic psychologist , who had had contact with mother about every te n days from 1995 until the date of the hearin g. Dr. Fields opined that moth er presented no flight risk beca use mother had established "roots" in Virginia and had established he rself in a professional ca reer. Dr. Fields also opined that it is de trimental to the childr en to have continued supervised visitation wi th mother because it "sets up a very false situation" and is a "b arrier" to spontaneit y between mo ther and the children. The trial judge further found th at father ha d exhibited "inappropriate" behavior in front of the children as a result of the difficulti es of the superv ision requir ement. In addition, mother testified that the few unsuperv ised visits sh e had had with the children were "more comfortabl e" and "free," re sulting in more conversation between her and the children. The trial judg e ruled that the superv ision requir ement had "been the source of ongoing diffic ulties between th e parties" and had proved to be "ver y cumbersome, ve ry expensive," and, after six

- 7 -years, "detrimental to the children." The trial judge ordered that the visitation schedule would remain unchanged, but the requirement for supervision would be lifted for a period of six months. After that ti me, the parties would return for a "status review" to determine if changes are ne cessary. Ba sed on this record, we cannot say that the trial judge ab used her discretion in this ruling. Accordingly, the decision of the trial judg e is summarily affirmed. Affirmed.

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