COURT OF APPEALS OF VIRGINIA Present: Judges Petty, O’Brien and Russell Argued at Alexandria, Virginia

KAREN BONSACK

v. Record No. 0415-16-4

MICHELE GREGORY MEMORANDUM OPINION  BY KAREN BONSACK JUDGE WILLIAM G. PETTY OCTOBER 25, 2016 v. Record No. 0416-16-4

MICHELE GREGORY

FROM THE CIRCUIT COUR T OF ARLINGTON COUNTY Louise M. DiMatteo, Judge Keenan R. Goldsby (Molly M. Garrett; Shou nBach, on briefs), for appellant. Morriah H. Horani (Pasternak & Fidi s, P.C., on brief), for appellee.

Karen Bonsack appeals the trial court’s gran t of Michele Gregory’s “Motion to Dismiss and for Summary Judgment.” Bonsack argues that her petitio n for visitation relating to Gregory’s two children 1 should have been resolved on the mer its during the trial that had already

been scheduled rather than su mmarily dismissed. For the reason below, we agree and remand. Because the parties are fully conversant w ith the record in this case and this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties’ understa nding of the dispositi on of this appeal.

“We review the evidence in the light most favorable to . . . th e party prevailing below and grant

 Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 The petition for visitation for each child ha s a separate case number. The two cases have been consolidated for purposes of appeal.UNPUBLISHED- 2 - all reasonable inferences fairly deduc ible therefrom.” Layman v. Layman, 62 Va. App. 134, 135, 742 S.E.2d 890, 890 (2013) (alteration in or iginal) (quoting Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999)). Although this Court reviews judgments invol ving visitation and custody under an abuse of discretion standard, see O’Rourke v. Vuturo, 49 Va. App. 139, 151, 638 S.E.2d 124, 129 (2006), where, as here, “the assigned error presents only a question of law, we will review the circuit court’s ruling de novo .” Johnston Memorial Hospital v. Bazemore, 277 Va. 308, 311, 672 S.E.2d 858, 859-60 (2009). A party is entitled to an appeal of right to a court of record when th e party is aggrieved by the judgment of a juvenile and domestic relations district court. Code § 16.1-296. “This statute gives the parties a trial de novo in the circuit court.” Ragan v. Woodcroft Vill. Apartments, 255 Va. 322, 327, 497 S.E.2d 740, 742 (1998) (analyzing C ode § 16.1-106 referring to appeals from district courts). “The purpose of this two-tier trial system is to allow a party aggrieved by a final judgment of the general district court to have th e case tried again by the ci rcuit court as if the case originally had been institut ed there.” Id. The Supreme C ourt has “often warned our trial courts about granting motions that ‘short circuit’ the legal process and deprive litigants of their ‘day in court and depriv[e] this Court of an oppor tunity to review a thor oughly developed record on appeal.’” Dodge v. Trs. Randolph-Macon Woman’s Coll., 276 Va. 1, 6-7, 661 S.E.2d 801, 804 (2008) (Lemons, J., dissenting) (quoting Seyfarth, Shaw, Fair weather & Geraldson v. Lake Fairfax Seven Ltd. P’ship, 253 Va. 93, 95, 480 S. E.2d 471, 472 (1997)). “Unfortunately, that principle [wa]s not followed in this case.” Id.

Bonsack was entitled to a trial de novo in circuit court on the juvenile and domestic

relations district court’s denial of her petition for visitation wi th Gregory’s two minor children. After Bonsack non-suited the appeal in the Circ uit Court of Arlington County, she timely refiled- 3 - on May 15, 2015. While the case was pending in the circuit court, Gregor y obtained a protective order pursuant to Code § 19.2-152.10 in district court forbidding contact between Bonsack and the children. Bonsack appealed the protective order to the Circuit C ourt of Arlington County, but resolved the appeal with a consent decr ee dated August 28, 2015 (“August 28 order”). The August 28 order established no-cont act restrictions to replace those in the protective order 2 and specified in relevant part that “this Consent Order shall be modified by an Order of this [c]ourt upon proper motion and hearing.” The circuit court trial on Bonsack’s petition fo r visitation was schedul ed for February 24, 2016 in Arlington County. On February 5, 2016, Gr egory filed a “Motion to Dismiss and for Summary Judgment,” the heari ng for which was scheduled for February 19, 2016 (“motions day hearing”). Also on February 5, Bonsack f iled a notice and motion (“modification motion”) requesting that the August 28 order be vacated or modified at the February 24 trial consistent

with the court’s determination of visitation. Bonsack additio nally included a copy of the modification motion in her written objection to Gregory’s motion for summary judgment. At the motions day hearing, the circuit co urt concluded that the August 28 order was valid and “renders it impossible for a [c]ourt to give visitation to [Bonsack ].” The circuit court

reasoned that it could not “make a decision that’s contrary to the [c]our t’s existing orders” and consequently “since the [c]ourt cannot make a visitation decision or custody issue—decision different from [the August 28] or der of no contact, there’s no point in having a trial.” It therefore

concluded it would “dismiss the case because th e [c]ourt cannot do anything differently than what the [c]ourt has already ordere d in a parallel case. And theref ore, none of the issues come

2 Although the order was titled a “Consent Order,” it was, in practical effect, a protective order pursuant to Code § 19.2-152.10(A)(2), which provides that a court has jurisdiction and authority to issue an order “[p]rohibiting such contacts by the respondent with the petitioner or family or household members of the petitioner as the court deems necessary for the health or safety of such persons.”- 4 - before the [c]ourt because there’ s no relief that can be given to [Bonsack].” Bonsack pointed the court to the specific modification language in the August 28 order and the filed modification motion. Nevertheless, the court concluded that because the modification had not yet occurred, it would grant Gregory’s motion to dismiss the case. 3

The circuit court’s decision to dismiss the case on the eve of trial on the basis that it was precluded from granting visitati on during the February 24 trial wa s erroneous. The Circuit Court of Arlington County issued the August 28 order providing, in releva nt part, that “[t]his consent

order shall be modified by an order of this [c]our t upon proper motion and hearing.” (Emphasis added). The Circuit Court of Arlington County certa inly had authority to modify the order at the February 24 trial, or at any time. By dism issing the case on February 19, on the basis that modification had not yet occurred, the circuit court short-circuite d the legal process and denied Bonsack her day in court, the following week, to argue the merits of her case. We reverse the

trial court’s dismissal of the case and remand for a trial on the merits. 4 For the reason stated above, we reverse and remand this case for a trial on the merits.

Reversed and remanded.

3 The circuit court declined to address any of the issues of law or fact in Gregory’s motion for summary judgment, decl aring them “moot” in view of the court’s dismissal of the visitation case. Additionally, the court made no findings of fact and admitted no evidence. We consider here only the ground upon which the cour t based its decision to summarily dismiss.

4 Because we are remanding for a trial on the merits, we do not address Bonsack’s other assignments of error. Gregory argues that we can affirm the circuit court’s dismissal for other reasons. Application of “right result, wrong reason” doctrine is not proper in “those cases where, because the trial court has rejected the right reason or confined its decision to a specific ground, further factual resolution is needed before th e right reason may be assigned to support the trial court’s decision.” Whitehead v. Commonwealth, 278 Va. 105, 115, 677 S.E.2d 265, 270 (2009) (quoting Harris v. Commonwealth, 39 Va. App. 670, 675-76, 576 S.E.2d 228, 231 (2003)). Further factual resolution, includ ing determination of the best interests of the children, is required in this case. We therefore decline to consider Gregory’s alternative reasons for affirming the circuit court’s dismissal.