COURT OF APPEALS OF VIRGINIA 

Present: Judges Kelsey, Petty and Senior Judge Bumgardner 

JOSEPH MICHAEL RUSSELL 

v. Record No. 1469-05-4 

NANCY LYNNE RUSSELL 

JOSEPH MICHAEL RUSSELL 

v. Record No. 2247-05-4 

NANCY LYNNE RUSSELL MEMORANDUM OPINION*

 PER CURIAM 

JOSEPH MICHAEL RUSSELL OCTOBER 3, 2006 

v. Record No. 2585-05-4 

NANCY LYNNE RUSSELL 

JOSEPH MICHAEL RUSSELL 

v. Record No. 3151-05-4 

NANCY LYNNE RUSSELL 

JOSEPH MICHAEL RUSSELL 

v. Record No. 0204-06-4 

NANCY LYNNE RUSSELL 

JOSEPH MICHAEL RUSSELL 

v. Record No. 1107-06-4 

NANCY LYNNE RUSSELL 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

Jane Marum Roush, Judge 

(Fred M. Rejali, on briefs), for appellant. 

(William B. Reichhardt; Colleen C. Sweeney; William B. 

Reichhardt & Associates, on briefs), for appellee. 

 Joseph Michael Russell (father) has filed six appeals arising from custody, visitation, and 

contempt issues concerning his relationship with Nancy Lynne Russell (mother) and their minor 

son, Benjamin. Father presents numerous questions on appeal, which will be addressed within 

the body of this opinion. Both parties request attorney’s fees on appeal. Upon reviewing the 

records and briefs of the parties, we conclude that these appeals are without merit. Accordingly, 

we summarily affirm the decisions of the trial court. Rule 5A:27. 

BACKGROUND 

 The parties married in September 1991. The couple’s final separation occurred in 

December 1992. On May 27, 1993, Benjamin, their only child, was born. Their divorce was 

finalized in 1995. 

The parties had informally agreed to a number of visitation arrangements since their 

separation. When the child was five years old, father and mother were living in separate houses 

but were within walking distance of each other, and the two agreed to split their time with him 

during the week; this arrangement was finalized in a 2001 consent order. In an effort to obtain 

sole custody of the child, mother filed a petition to reopen and modify custody and child support 

in 2003. The trial court appointed a guardian ad litem (GAL) to represent the child’s interests. 

 The parties agreed to a modified custody order on December 24, 2003. The order 

decreed that the parties would attend counseling sessions with Dr. Victor Elion, that the parties 

would make decisions concerning Benjamin together, and that “[i]f the parties cannot reach an 
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agreement as to activities, they shall submit the issue to Dr. Elion or other therapist, who shall 

make the decision.” The order also stated that Dr. Elion would draft a report on the progress of 

the family counseling for the court to review. 

Dr. Elion delivered a written report to the GAL, who asked him to draft a second report. 

On August 27, 2004, Dr. Elion filed the second report. One of the report’s recommendations 

was that the court reconsider mother’s petition for modification of custody. The trial court held a 

hearing in December 2004 to review Dr. Elion’s appraisal of the situation. During that hearing, 

the trial court ordered that a hearing for visitation and custody be held on May 2 and 3, 2005. 

After the May 2005 hearing, at which Dr. Elion testified, the court entered a custody order on 

May 20, 2005, granting sole custody of the child to the mother. 

Subsequently, mother filed a motion asking the trial court to require father to show cause 

why he should not be held in contempt for violating the May 20, 2005 custody order. The trial 

court determined, in a hearing pursuant to this motion on November 29, 2005, that father had 

violated the custody agreement on numerous occasions. The trial court found father had 

interfered with mother’s visitation rights during weeknights, during Thanksgiving break, had 

supplied the child with locks to lock himself in his room in mother’s house, and used the child to 

communicate with mother on visitation issues. The trial court found father in contempt of court, 

but suspended the jail sentence on certain conditions. 

A December 9, 2005 order, entered pursuant to a show cause hearing initiated by mother, 

provided that mother shall have exclusive custody of Benjamin until January 2, 2006. Mother 

testified at a January 20, 2006 hearing that on December 17, 2005, father drove by and picked up 

Benjamin in father’s vehicle while Benjamin was playing in a neighbor’s yard. On January 23, 

2006, the trial court entered an order finding father in contempt, and incarcerated him until he 

“submits a written plan as to how he will comply with this court’s orders and obtain assistance 
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by a mental health professional.” Father failed to comply with the trial court’s order; his counsel 

argued that doing so could compromise his due process rights. 

After a March 21, 2006 hearing, the trial court issued an order stating that, “Michael 

Russell shall be released from jail. Pending Michael Russell’s submission to the court of a plan 

to follow the Court’s Order all visitation shall be suspended. Michael Russell shall have no 

contact with Benjamin.” Within hours of being released, father called Benjamin on the 

telephone. In a March 31, 2006 hearing, the court refused to grant father visitation, saying “I 

think it’s clear at this time in Ben’s life contact with his father would be toxic.” 

ANALYSIS1

Record No. 1469-05-4, Questions Presented I and II

Scheduling of Custody Hearing of May 2-3, 2005

Father contends there was no legal basis for Dr. Elion to suggest a custody modification 

and that the trial court erred in scheduling the May 2-3, 2005 custody hearing when a final order 

had been entered in the matter on December 24, 2003 and no petition had been filed for a change 

in custody. Father also contends the trial court erred in allowing Dr. Elion to testify and in 

considering his testimony when he had not prepared a custody evaluation. 

 “In matters of a child’s welfare, trial courts are vested with broad discretion in making 

the decisions necessary to guard and to foster a child’s best interests.” Farley v. Farley, 9 

Va. App. 328, 328, 387 S.E.2d 794, 795 (1990). Specifically, Code § 20-107.2 provides that 

“[u]pon entry of a decree providing . . . for a divorce . . . the court may make such further decree 

 1

 Father has filed a “Motion for an Expedited Hearing, and Request for Attorney’s Fees,” 

arguing that his appeals are “extremely compelling” and that mother is “maliciously prosecuting 

him.” We deny this motion because we find father’s appeals to be without merit. Father has also 

filed a “Motion to Declare Orders Void or to Stay Orders Pending Appeal,” arguing that the trial 

court had no jurisdiction to issue various orders. We deny this motion for reasons provided in 

the analysis section. 
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as it shall deem expedient concerning the custody or visitation and support of the minor children 

of the parties.” Code § 20-108 states: 

The court may, from time to time after decreeing as provided in 

§ 20-107.2 . . . on its own motion . . . revise and alter such decree 

concerning the care, custody, and maintenance of the children and 

make a new decree concerning the same, as the circumstances of 

the parents and the benefit of the children may require. 

“The court, in the exercise of its sound discretion, may alter or change custody or the terms of 

visitation when subsequent events render such action appropriate for the child’s welfare.” 

Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986). 

In this case, Dr. Elion’s recommendation to modify custody provided the court with a 

sufficient basis to hold a custody hearing. Furthermore, the trial court was within its discretion 

to revise an existing custody agreement based in part on Dr. Elion’s report and testimony. Dr. 

Elion is an expert clinical psychologist who met with the parents and the child numerous times. 

He found mother to be responsive during the sessions, and observed that father was unresponsive 

and uncooperative. He described the parties’ relationship as a “case where there is, in terms of 

harmonious communication or effective communication that would be in the best interest of the 

child, as being virtually non-existent.” One example Dr. Elion provided was that father was 

unresponsive to any suggestion that the child’s athletic activities should be reduced despite the 

fact that these activities “took away time from other important aspects of childrearing 

experiences.” The trial court, acting in the best interests of the child, was free to hold a hearing 

and modify custody based in part on Dr. Elion’s informed opinion. 

Record No. 1469-05-4, Questions Presented III and IV

Subpoenas 

Father contends the trial court erred when it allowed mother to present evidence by Dr. 

Elion when the doctor had not provided to father’s counsel the first report he drafted or the notes 
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from his sessions with Benjamin to father’s counsel despite having been subpoenaed for these 

documents. 

 In November 2004, both parties served Dr. Elion with a subpoena duces tecum and a 

subpoena for a witness, requesting access to the child’s medical records. In a November 12, 

2004 motion, the GAL stated that the subpoenas duces tecum should be denied on the basis that 

releasing the records was not in the child’s best interests, as Dr. Elion explicitly told the child he 

would not release this information to his parents. 

A subsequent order from the trial court provided that “none of Benjamin’s psychological 

records are discoverable.” 

“The 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.” “Certainly it is true that 

the legal rights of the parent should be respected . . . but the 

welfare of the child is to be regarded more highly than the 

technical legal rights of the parent.” 

Green v. Richmond Dep’t of Soc. Servs., 35 Va. App. 682, 686-87, 547 S.E.2d 548, 550 (2001) 

(quoting L.C.S. v. S.A.S., 19 Va. App. 709, 724, 453 S.E.2d 580, 588 (1995) (citations omitted)). 

 Both Dr. Elion and the GAL believed allowing the parents access to Benjamin’s medical 

documents could interfere with his counseling. The trial court was well within its discretion, 

then, in ruling these records to be undiscoverable in order to protect the welfare of the child. 

Record No. 1469-05-4, Questions Presented V and VI

Admissibility of Expert Testimony

 Father contends the trial court erred in admitting Dr. Elion’s report and giving substantial 

weight to his testimony when he had been instructed only to report on the status of family 

therapy. Father also contends the trial court erred in admitting Dr. Elion’s report when it 

contained gross misstatements. 
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 The December 24, 2003 consent order states that “this Order and the efficacy of the 

family counseling will be reviewed by Dr. Elion . . . within five months from the entry of this 

Order. A report regarding the efficacy and progress of family counseling shall be prepared for 

review by the Court and the Guardian ad litem.” Father argues that Dr. Elion’s report and 

testimony went beyond the limited scope assigned to him by the consent order and that the report 

misstated the number and intensity of athletic activities Benjamin was involved in and 

erroneously stated that father had punched Benjamin in the chest. 

 As the trial court noted at the time, even if true, father’s arguments merely go to the 

weight accorded Dr. Elion’s report and testimony. “In determining whether credible evidence 

exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or 

make its own determination of the credibility of the witnesses.” Wagner Enters., Inc. v. Brooks, 

12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). “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.” Joynes v. Payne, 36 Va. App. 401, 416, 551 S.E.2d 10, 17 (2001). 

 The trial court did not abuse its discretion by weighing Dr. Elion’s evidence as it did and 

in granting sole custody to mother. 

Record No. 1469-05-4, Question Presented VII

Admissibility of Father’s Deposition Transcript 

Father contends the trial court erred in admitting the entire transcript of his April 2005 

deposition into evidence, arguing that the deposition transcript contained hearsay and was 

prejudicial to father. 

 “[A] party may, subject to the rules of evidence, introduce an adverse party’s discovery 

deposition as substantive evidence in his own case, whether the deponent is present or not.” 

Horne v. Milgrim, 226 Va. 133, 138, 306 S.E.2d 893, 895 (1983). 
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The party offering such a deposition may tender only that part of it 

he considers relevant. If fairness requires the admission of 

additional parts, a remedy is provided by Rule 4:7(a)(5). The 

deposition is, of course, subject to objection on the grounds of 

authenticity, relevancy, non-compliance with the Rules of Court, 

or any failure to comport with the rules of evidence. 

Id.

Father asserts that the deposition transcript contains irrelevant content and hearsay. He 

does not, however, specify which sections of the transcript are objectionable. The deposition 

transcript consists mainly of father’s answers to questions about Benjamin’s extra-curricular 

activities, his relationship to Benjamin and mother, and his participation in family therapy. None 

of these subjects is irrelevant to the issue of custody. In the absence of specific examples of 

hearsay or irrelevance, then, this Court cannot conclude the trial court erred in admitting the 

deposition into evidence.

Record No. 1469-05-4, Question Presented VIII

Judicial Bias 

On April 29, 2005, Judge Keith presided over a hearing and issued an order in a separate 

case in which father was a party. Judge Keith’s order involved Benjamin’s mental health 

records, and stated in part that these records were not to be communicated to father. Based on 

this ruling, father contends the trial court had already formed an opinion as to the admissibility of 

the child’s mental health records and that the judge abused his discretion by relying on opinions 

formed in this previous case when he granted mother sole custody. 

 The fact that Judge Keith had presided over a hearing in which father was a party that 

concerned Benjamin’s mental health records does not, by itself, constitute an abuse of discretion 

on his part. “‘Merely because a trial judge is familiar with a party and his legal difficulties 

through prior judicial hearings . . . does not automatically or inferentially raise the issue of 
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bias.’” Deahl v. Winchester Dep’t of Soc. Servs., 224 Va. 664, 672-73, 229 S.E.2d 863, 867 

(1983) (quoting Barry v. Sigler, 373 F.2d 835, 836 (8th Cir. 1967)). 

“Frequently, in the disposition of cases, both civil and criminal, a 

judge is called upon to form and express an opinion upon a matter 

or issue which may come before him in a subsequent proceeding 

arising out of the same state of facts. The courts are practically 

unanimous in the view that neither the forming nor the expression 

of such a conclusion, under such circumstances, disqualifies a 

judge in the subsequent matter. [Citations omitted.]” 

Justus v. Commonwealth, 222 Va. 667, 673, 283 S.E.2d 905, 908 (1981) (quoting Slayton v. 

Commonwealth, 185 Va. 371, 376, 38 S.E.2d 485, 488 (1946)). 

Father alleges nothing more than that Judge Keith previously issued a ruling involving 

the admissibility and disclosure of Benjamin’s mental health records similar to the one he issued 

in May of 2005; this fact alone is insufficient to show Judge Keith abused his discretion. 

Record No. 1469-05-4, Question Presented IX

Sufficiency Of The Evidence 

Father contends the trial court should have given Dr. Elion’s report almost no weight and 

there was little evidence besides the report to support granting mother sole custody of the child. 

“The 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). Dr. Elion is a clinical 

psychologist whom both parents designated to evaluate themselves and their son. He conducted 

numerous clinical sessions with the parents and with the child. The trial judge did not abuse his 

discretion in relying heavily on Dr. Elion’s testimony. The record shows the trial judge 

explained his decision-making process in detail, and discussed the factors listed in Code 

§ 20-124.3 when deciding the best interests of the child. The trial judge relied on many pieces of 

evidence in coming to his decision, including testimony from the parties and e-mails the parents 
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had written concerning Benjamin. The evidence was sufficient to support the trial court’s 

decision. 

Record No. 2247-05-4

Jurisdiction 

On August 19, 2005, the trial court issued an order stating that the non-custodial parent is 

restricted from visiting with Benjamin during the other parent’s half of the summer with him. 

Mother contends this order merely clarified a May 20, 2005 order. Father argues the order 

modified the May 20 order and that, because the May 20 order was on appeal at the time, the 

trial court no longer had jurisdiction. Therefore, father argues, the August 19 order is void. 

Provision E of the May 20, 2005 order states as follows: 

The Father shall have visitation for the first half of summer break 

in 2005 and the Mother shall have the second half. Father and 

Mother shall alternate their respective halves each year thereafter. 

Each of the parties shall have regular visitation as described herein 

for the Father during the other parent’s one-half summer visitation 

time. However, upon prior notice of dates exchanged no later than 

May 1 of each year, each parent shall be entitled to exclusive 

visitation during their summer visitation for vacation and travel 

with their son. 

The provision is unclear. The first sentence states that the child will stay with one parent 

for the first half of the summer, and the other parent for the second half. The third sentence, 

though, provides that each parent “shall have regular visitation as described herein for the Father 

during the other parent’s one-half summer visitation time.” The third sentence arguably 

contradicts the first, leaving undefined and unclear the meaning of “regular visitation as 

described herein for the Father.” 

The trial judge, during the May 3, 2005 hearing, stated that he simply intended to split the 

summer “down the middle. And in 2005, the father will get the first half. The mother will get 

the second half.” Then, during the August 17, 2005 hearing, the trial judge stated that he viewed 
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the ensuing August 19, 2005 order as a clarification: “I certainly think I have the power to 

clarify that today.” He also stated: 

The [May 20, 2005] order that was—it’s inconsistent. Each of the 

parties are [sic] to have regular visitation during the other party’s 

one-half summer vacation time. That wasn’t my order. That’s not 

what I intended at all. It was supposed to be . . . . One half is all 

dad’s; one half is all mom’s, and there’s no visitation for the other 

parent during that time. 

 Because the May 20, 2005 order contained inconsistent and unclear statements, the 

August 19, 2005 order was a clarification, not a modification, of the original order. As such, the 

trial court had the authority to enter the August 19, 2005 order. 

Record No. 2585-05-4

Inconsistent Ruling of September 23, 2005 Order 

 Father filed a motion to unseal the file in this case. The trial court entered an order on 

September 23, 2005, stating “[Father’s] motion is denied because the Court lacks jurisdiction to 

enter the order while the matter is on appeal. Furthermore, no compelling reason was presented 

by the defendant that the file should not be sealed.” 

 Father contends the court erred in ruling that the court lacked jurisdiction over the matter 

and then also ruling that no compelling reason was presented to unseal the file. If a court lacks 

jurisdiction over a case, it must dismiss. The sentence in the order addressing the fact that no 

compelling reason was presented by the defendant is merely dicta. See Lofton Ridge, LLC v. 

Norfolk S. Ry., 268 Va. 377, 383, 601 S.E.2d 648, 651 (2004) (An “alternative justification for 

the ruling was unnecessary to the holding. As such, it is dicta.”). We therefore find no 

reversible error in the order. 
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Record Nos. 3151-05-4 and 0204-06-4, Questions Presented I and II

Contempt Orders

Jurisdiction

 Father contends the November 29, 2005 order, suspending a jail sentence, and the 

January 23, 2006 order, imposing a jail sentence, were modifications of the May 20, 2005 order, 

which was on appeal at that time, and, as such, the trial court lacked jurisdiction to enter those 

orders. 

We do not accept the premise of father’s argument. Under Code § 20-124.2(E), the trial 

court has the “continuing authority and jurisdiction to make any additional orders” which are 

necessary to enforce a custody order it has previously issued. The November 29, 2005 and 

January 23, 2006 orders were not entered to modify the May 20, 2005 order; instead, the court 

entered them to enforce the May 20, 2005 order because of father’s failure to comply. Code 

§ 20-124.2(E) gives the court the authority to do so. 

Service of Process

Father also argues that procedural defects invalidate the November 29, 2005 order. 

Specifically, he claims lack of service of process for the January 20, 2006 hearing. However, 

father presents no arguments, case law, or statutes to support his contention. “Statements 

unsupported by argument, authority, or citations to the record do not merit appellate 

consideration. We will not search the record for errors in order to interpret appellant’s 

contention and correct deficiencies in a brief.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 

S.E.2d 237, 239 (1992). 

Sufficiency

 Father also argues that the evidence was insufficient to find him in contempt. 

A trial court “has the authority to hold [an] offending party in 

contempt for acting in bad faith or for willful disobedience of its 
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order.” Carswell v. Matterson, 224 Va. 329, 332, 295 S.E.2d 899, 

901 (1982). In a show cause hearing, the moving party need only 

prove that the offending party failed to comply with an order of the 

trial court. Frazier v. Commonwealth, 3 Va. App. 84, 87, 348 

S.E.2d 405, 407 (1986). The offending party then has the burden 

of proving justification for his or her failure to comply. Id.

Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d 666, 669 (1991). 

At the November 29, 2005 hearing, father admitted communicating with mother through 

the child and picking up the child from school on Thanksgiving break. These actions were clear 

violations of the court’s May 20, 2005 order and, therefore, were sufficient to find father in 

contempt. 

 The December 9, 2005 order provided that “[t]he mother shall have exclusive custodial 

time during the Winter/Christmas visitation time of 2005” and “[a]fter January 2, 2006 the father 

shall resume every other weekend visitation from 4:00 p.m. Friday to 7:30 p.m. Sunday.” 

During the January 20, 2006 hearing, mother testified that on December 17, 2005, without prior 

notice, father took the child while he was playing in his friend’s yard and kept him for the 

weekend. This action was a direct violation of the December 9, 2005 order. The trial court was 

within its discretion to find father “clearly in contempt of this court’s orders.” 

Father also claims the trial judge found father in contempt not based on the violations 

alleged in mother’s show cause motions, but based on father’s own testimony during the 

hearings. This is untrue, as the contempt order was the result of a combination of the facts 

alleged in mother’s show cause motions and her testimony, and in father’s own testimony. 

Record No. 1107-06-4, Questions Presented I and II

Modification of Visitation Orders 

 Father argues the trial court erred in modifying visitation orders while the issue of 

visitation was on appeal. We have addressed this issue in the section entitled “Record No. 

1469-05-4, Questions Presented I and II.” 
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Record No. 1107-06-4, Questions Presented III and IV

Void Orders 

Father argues the trial court erred in finding him in contempt of court for violating orders 

that were void. The modification of the visitation orders was not void, though, as we have 

already explained in “Record No. 1469-05-4, Questions Presented I and II.” 

Record No. 1107-06-4, Question Presented V

Conditions of Contempt 

 Father argues the trial court erred in finding that he had not met the conditions of the 

contempt order. He presents no arguments and cites no law in support of this contention. 

“Statements unsupported by argument, authority, or citations to the record do not merit appellate 

consideration. We will not search the record for errors in order to interpret appellant’s 

contention and correct deficiencies in a brief.” Buchanan, 14 Va. App. at 56, 415 S.E.2d at 239. 

Record No. 1107-06-4, Questions Presented VI

Contempt Finding 

 Father contends that the trial court erred in finding him in contempt and ordering him to 

submit a written plan as to how he will comply with the court’s orders when father had already 

submitted such a plan as part of a January 3, 2006 motion. Father also argues the court erred in 

continuing to find father in contempt after his counsel explained that he did not want to submit 

another plan for how to comply with the court’s orders because he was concerned such a plan 

would violate his due process rights and harm his ability to appeal. 

The trial court set out clear conditions for father’s release from incarceration, instructing 

him to submit a written plan as to how he would obey the court’s orders. Father refused to do so. 

The “plan” he submitted on January 3, 2006 included a provision that Benjamin could visit father 

as often as he likes, as long as Benjamin is returned to mother’s house by 5:30 p.m. This 
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provision was a right the December 9, 2005 order did not grant father. In addition, father 

continuously disobeyed the court’s orders, from picking up Benjamin when the court order 

forbade it in December of 2005, to refusing to submit a plan as to how he would comply with the 

court’s orders, to telephoning Benjamin within hours of being released from incarceration. The 

trial court did not err, therefore, in finding father in contempt, in incarcerating him, or in refusing 

to grant him visitation with Benjamin. 

Attorney Fees 

 Both parties have requested that this Court award costs and attorney’s fees for matters 

related to these appeals. Because father’s appeals were clearly without merit, we deny his 

request and we award costs and attorney’s fees to mother. We remand this case to the trial court 

for a determination of attorney’s fees incurred in responding to these appeals. See O’Loughlin v. 

O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). 

CONCLUSION 

 For the reasons stated, we summarily affirm the decisions of the trial court. Rule 5A:27. 

We remand to the trial court for a determination of the attorney’s fees incurred by mother in 

these appeals. 

Affirmed and remanded.