COURT OF APPEALS OF VIRGINIA 

Present: Judge Elder, Senior Judges Annunziata and Clements 

THOMAS L. SWITZER 

 MEMORANDUM OPINION*

v. Record No. 0345-08-3 PER CURIAM 

FEBRUARY 24, 2009 

PAULA FRIDLEY, SAMUEL SMITH AND 

 JODI SMITH 

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY 

Humes J. Franklin, Jr., Judge 

 (Thomas L. Switzer, pro se, on brief). 

 No brief for appellees. 

 Thomas L. Switzer appeals an emergency protective order entered by the trial court on 

January 11, 2008. 

BACKGROUND 

In 1996, Switzer and his former wife, Paula Switzer, had a child. The Department of 

Social Services removed the child from his parents’ home at a young age due to his parents’ 

mental and emotional problems and acts of violence committed against each other. In March 

2000, the trial court awarded permanent custody of the child to Samuel Smith and Jodi Botkin 

(now, Jodi Smith, and collectively “the Smiths”). Switzer appealed that decision, and this Court 

affirmed the trial court in an unpublished decision. Switzer v. Smith, Record No. 0779-00-3 (Va. 

Ct. App. July 31, 2001). The Virginia Supreme Court refused Switzer’s appeal. Switzer v. 

Smith, Record No. 012108 (Va. Feb. 20, 2002). The child has remained in the Smiths’ custody 

since 2000. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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THE EMERGENCY PROTECTIVE ORDER 

 On or about January 11, 2008, the child’s Guardian ad litem (GAL) moved the trial court 

for an emergency protective order to prohibit the release of academic and health records to 

persons other than those having legal and physical custody of the child. The motion alleged that 

Switzer requested such records from the school system, and the school system indicated it would 

release that information absent intervention by the court. The GAL averred that those records 

would reveal to Switzer the child’s school location that had theretofore been confidential, and, as 

a result, the child “is likely to be subject to an immediate danger to his life, safety or welfare if 

such records are disclosed.” On January 11, 2008, the trial court entered an emergency 

protective order prohibiting the release of the child’s academic or health records to anyone other 

than persons having legal and physical custody of the child. 

The manuscript record contains a document indicating that a certified copy of the 

emergency protective order was delivered to Switzer on January 14, 2008. 

On January 22, 2008, Switzer filed a three-page written communication dated January 15, 

2008, stating that he “received a document today [January 15, 2008] entitled ‘Emergency 

Protective Order.’” Switzer indicated his dissatisfaction with the order and stated, inter alia, he 

wished to file responses, he did not trust the GAL, and he has a right to receive the child’s 

information. 

 On January 31, 2008, Switzer filed a “Motion to Amend” indicating that on February 14, 

2008, he would appear and move to amend “orders entered in the Augusta Circuit Court on 

January 11, 2008 to establish venue, rules for discovery, and other relief.” 

On February 11, 2008, Switzer filed in the trial court a notice of appeal appealing to this 

Court the trial court’s January 11, 2008 emergency protective order. Switzer included objections 

and a proposed statement of facts with the notice of appeal. 
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On February 14, 2008, the trial court conducted an ore tenus hearing. In its order entered 

on that same date, the trial court ruled on eight matters, none of which involved the emergency 

protective order. 

ISSUES ON APPEAL 

Switzer limits his questions on appeal to issues relating to the emergency protective order. 

On December 8, 2008, four days before he filed his opening brief, Switzer filed a motion 

entitled: 

Motion to Limit the Appeal to the Questions Presented in Regards 

to the Judgment Entitled “Emergency Protective Order” and 

Withdrawal the Appeal as it Pertains to the Questions of Custody 

and Visitation and Remand These Questions to the Trial Court. 

 Because Switzer limits his arguments in his opening brief to questions relating to the 

emergency protective order, the December 8, 2008 motion is moot. 

 Switzer presents four numbered questions on appeal: (1) the trial court erred in refusing to 

uphold Switzer’s right to obtain the child’s medical and educational records; (2) the trial court 

abused its discretion by failing to provide service of process and opportunity to be heard “before 

said right was terminated”; (3) the trial court erred “by holding the ‘just cause’ clause in Va. Code 

§ 20-124.6 creates an ex parte cause of action”; and (4) the trial court erred “by concluding the 

evidence in the record supports its conclusion that it had just cause to enter an ex parte judgment.” 

A transcript or written statement of facts is essential to a determination of these issues. 

See Anderson v. Commonwealth, 13 Va. App. 506, 508-09, 413 S.E.2d 75, 76-77 (1992); Turner

v. Commonwealth, 2 Va. App. 96, 99-100, 391 S.E.2d 400, 402 (1986). 

The record does not contain a transcript or signed written statement of facts. On 

February 8, 2008, Switzer submitted to the trial court a document entitled “Statement of Facts” 

containing the following two statements: 
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There was no testimony presented or hearing held prior to the entry 

of this order. 

This was an ex parte judgment in which the father and mother 

where [sic] excluded as parties. 

 The trial judge scratched through the line stating “I CERTIFY THE ABOVE AS BEING 

TRUE AND CORRECT.” The trial judge then handwrote the following: “This is not correct 

but a misstatement of the proceedings.” 

Even though Switzer was not present at the January 11, 2008 hearing, the record shows 

that a certified copy of the order was “mailed/hand delivered” to him on January 14, 2008. 

Moreover, Switzer’s communication with the court, filed on January 22, 2008, was dated 

“01/15/08” and indicated he received a copy of the order “today.” Despite timely receipt of the 

order and his awareness of the proceedings, Switzer took no action within the twenty-one-day 

jurisdictional period, see Rule 1:1, to make a record and obtain a transcript or signed written 

statement of facts. 

“An appellate court must dispose of the case upon the record and cannot base its decision 

upon appellant’s petition or brief, or statements of counsel in open court. We may act only upon 

facts contained in the record.” Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 

(1993). “[O]n appeal the judgment of the lower court is presumed to be correct and the burden is 

on the appellant to present to us a sufficient record from which we can determine whether the 

lower court has erred in the respect complained of.” Justis v. Young, 202 Va. 631, 632, 119 

S.E.2d 255, 256-57 (1961). “The burden is upon the appellant to provide us with a record which 

substantiates the claim of error. In the absence thereof, we will not consider the point.” Jenkins 

v. Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991). 
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Absent a proper record, we are unable to address the issues raised. Therefore, we 

summarily affirm the trial court. Rule 5A:27. 

Affirmed.