COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Humphreys and McClanahan

Argued at Chesapeake, Virginia

JOHN A. LANZALOTTI

 OPINION BY

v. Record No. 2808-02-1 JUDGE ELIZABETH A. McCLANAHAN

 SEPTEMBER 30, 2003

CATHY LYNN LANZALOTTI

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG 

AND COUNTY OF JAMES CITY

Samuel Taylor Powell, III, Judge

Willafay H. McKenna for appellant.

No brief or argument for appellee. 

John A. Lanzalotti (father) appeals from a decision of the

Circuit Court of the City of Williamsburg and County of James

City granting his former wife, Cathy Lynn Lanzalotti (mother),

physical custody of their child. Father contends the trial

court erred by (1) failing to communicate the basis of its

decision as required by Code § 20-124.3; (2) limiting the length

of the hearing; and (3) failing to quash mother's

attorney-issued witness subpoenas. For the following reasons,

we affirm in part, reverse in part and remand.

I. BACKGROUND

The parties married on June 18, 1994. One child was born

of the marriage on September 14, 1995. On November 10, 1999,

after leaving the home two days earlier, mother filed a bill of
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complaint for divorce. On May 5, 2002, after two pendente lite

hearings that included rulings on custody and visitation, and

several other hearings on other issues, the circuit court

entered a final decree of divorce. The order reserved custody

and visitation issues for a separate hearing.

On June 20, 2002, father issued a notice of hearing on

custody and visitation for August 27, 2002. Prior to the

hearing, both parties submitted proffers and home studies for

the court's consideration, and utilized attorney-issued

subpoenas for witnesses to be called at hearing. Father filed

motions to quash two witness subpoenas issued by mother's

attorney on the grounds they were not properly endorsed and did

not include the issuing attorney's bar identification number. 

At the beginning of the hearing, the court informed the

parties that the matter was scheduled for two hours, and gave

each party one hour to present its evidence. Neither party

objected to the time limitation. Father's attorney raised the

motions to quash. Mother's attorney stated that the subpoenas

were issued by a private process server under her authority, but

admitted they were not personally signed by her, but by the

private process server. Counsel for mother also admitted that

the subpoenas did not include her bar number, but maintained

that father's counsel knew her and that father was not

prejudiced by the omission. The court overruled the motions. 
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Both parties and witnesses for each party testified at the

hearing, which was punctuated by the chancellor's reminders of

time used or remaining for each side. At the conclusion of the

evidence, the chancellor stated:

The Court will find that both parties are

competent and capable of raising their son.

The Court will consider the statutory

factors set forth in 20-104.3 [sic]. I have

some other matters in the file that I want

to review. This is a substantial file. I'm

going to defer ruling for 24 hours so that I

can review the entire file.

On September 3, 2002, the court issued a letter to the parties

that read:

The Court heard the evidence ore tenus,

reviewed the proffers by each party and the

home studies, and all other relevant

evidence in this matter and in consideration

of the factors as set forth in § 20-124.3,

find that the best interests of the child

will be served by awarding custody of the

child to the mother with reasonable

visitation reserved to the father. 

The court entered an order on October 15, 2002, which included

the following language:

Evidence was heard ore tenus and was argued

by counsel, upon consideration of which, and

seeming proper to do, it is 

ADJUDGED, ORDERED and DECREED as

follows:

1. Primary physical custody of the

minor child born of the marriage . . . is

granted to the Plaintiff, Cathy Lynn

Lanzalotti, with reasonable visitation

rights reserved to the Defendant. . . .

Father noted objections to the order, inter alia, that the court

failed to communicate the basis of the decision as required by 
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Code § 20-124.3 and that the court erred in overruling father's

motions to quash the attorney-issued subpoenas. 

II. ANALYSIS

On appeal, we view the evidence in the light most favorable

to the prevailing party. Brown v. Burch, 30 Va. App. 670, 681,

519 S.E.2d 403, 408-09 (1999). A trial court's decision, when

based upon an ore tenus hearing, is entitled to great weight and

will not be disturbed unless plainly wrong or without evidence

to support it. Venable v. Venable, 2 Va. App. 178, 186, 342

S.E.2d 646, 651 (1986). "A trial court's determination of

matters within its own discretion is reversible on appeal only

for abuse of that discretion . . . and a trial court's decision

will not be set aside unless plainly wrong or without evidence

to support it." Goldhammer v. Cohen, 31 Va. App. 728, 734-35,

525 S.E.2d 599, 602 (2000). A trial court, "'by definition

abuses its discretion when it makes an error of law.'" Shooltz

v. Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998)

(quoting Koon v. United States, 518 U.S. 81, 100 (1996)). 

Code §§ 20-107.2 and 20-124.3 allow a court to make a

decree concerning the custody of minor children. In determining

what custodial arrangement serves the best interests of a child,

the court must consider the factors enumerated in Code

§ 20-124.3. In its original form, the statute did not expressly

require the trial court to elaborate on its findings or, for

that matter, to provide any explanation for its decision. In
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1999, however, the General Assembly amended Code § 20-124.3 to

direct the trial court to state the "basis for the decision

either orally or in writing." This Court has recently held that 

Code § 20-124.3 requires the trial court to

identify the fundamental, predominating

reason or reasons underlying its decision.

This level of specificity does not require

the chancellor to address all aspects of the

decisionmaking process, as one would expect

from comprehensive findings of fact and

conclusions of law. Nor does the 1999

amendment require the chancellor "to

quantify or elaborate exactly what weight or

consideration it has given to each of the

statutory factors." 

Kane v. Szymczak, ___ Va. App. ___, ___, ___ S.E.2d ___, ____

(August 26, 2003) (quoting Sullivan v. Knick, 38 Va. App. 773,

783, 568 S.E.2d 430, 435 (2002) (citation omitted)); see also

Goodhand v. Kildoo, 37 Va. App. 591, 600, 560 S.E.2d 463, 467

(2002); Joynes v. Payne, 36 Va. App. 401, 416, 551 S.E.2d 10, 17

(2001). 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. "The trial court must provide a case-specific

explanation (one that finds its contextual meaning from the

evidence before the court) of the fundamental, predominating

reason or reasons for the decision." Kane, ___ Va. App. at
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____,___ S.E.2d at ____. The statute requires "an express

communication to the parties of the basis for the decision."

Id. 

At hearing, the trial court stated it needed to review the

entire file before it could issue a ruling. In his letter to

the parties, the chancellor stated that he "heard the evidence

ore tenus, reviewed the proffers by each party and the home

studies, and all other relevant evidence in this matter and in

consideration of the factors as set forth in § 20-124.3 find

that the best interests of the child are served by awarding

custody to the mother." The order provided no reasoning. The

trial judge did not sufficiently communicate to the parties the

basis of his decision to place custody of the child with mother.

Therefore, we reverse and remand this matter to the trial court

with instructions to provide an explanation in compliance with

the statute. 

Regarding the objection to time limits imposed at hearing,

we find that father did not properly preserve the issue for

appeal, as no timely objection was made. Rule 5A:18 states:

"No ruling of the trial court . . . will be considered as a

basis for reversal unless the objection was stated together with

the grounds therefor at the time of the ruling, except for good

cause shown or to enable the Court of Appeals to attain the ends

of justice." 
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At the beginning of the hearing, the chancellor announced

that the matter was scheduled for two hours, gave each side an

hour to present their evidence, and stated, "This is what you

asked for." The chancellor's statement indicates to this Court

that the parties were in agreement that two hours were

sufficient for the hearing. Neither party raised an objection

at the time the chancellor announced the time restriction, and

neither party noted their objection on the court's order. There

were no proffers in the record as to what additional evidence

would have been presented, or how the restriction harmed

counsel's ability to present the case such that there was a due

process violation. Further, we find that neither "good cause"

nor "the ends of justice" require us to consider the issue. 

On the issue of whether the chancellor erred in not

quashing mother's attorney-issued witness subpoenas, we find

without deciding whether there was error, that the decision to

allow the witness testimony was harmless. The witnesses at

issue were already in attendance at the hearing, and even if the

motion to quash had been granted, they could have testified. A

review of the transcript reveals that the parties were neither

hurt nor harmed by the testimony of the witnesses at issue.

Therefore, it plainly appears that even if the chancellor erred,

it was harmless. Code § 8.01-678; Sargent v. Commonwealth, 5

Va. App. 143, 360 S.E.2d 895 (1987).
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Accordingly, we hold that the chancellor's letter opinion

and order fail to satisfy Code § 20-124.3's requirement that the

trial court communicate to the parties the basis of the

decision. We reverse and remand this matter to the trial court

for compliance with this statutory mandate. We find that the

question on time limits was not properly preserved and that the

issue regarding attorney-issued subpoenas had no effect on the

outcome of this case. Therefore we affirm in part, reverse in

part and remand. 

Affirmed in part,

reversed in part

and remanded.