COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, Petty and Seni or 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 opin ion is not designated for publication.- 2 - FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY M. Langhorne Keith, Judge Jane Marum Roush, Judge (Fred M. Rejali, on briefs), for appellant. (William B. Reichhardt; Collee n 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 w ith Nancy Lynne Russell (mother) and their minor son, Benjamin. Father presents numerous questi ons on appeal, which will be addressed within the body of this opinion. Both parties request at torney’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 ag reed to a number of visitation arrangements since their separation. When the child was fi ve years old, father and mother were living in separate houses but were within walking distance of each other, a nd 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, moth er filed a petition to reopen an d 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 at tend counseling sessions with Dr. Victor Elion, that the parties would make decisions concerning Benjamin togeth er, and that “[i]f the parties cannot reach an- 3 - agreement as to activities, they shall submit the issue to Dr. Elion or ot her 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 repor t. One of the report’s recommendations was that the court reconsider mother’s petition fo r modification of custody. The trial court held a hearing in December 2004 to review Dr. Elion’s appr aisal of the situation. During that hearing, the trial court ordered that a hearing for visi tation and custody be held on May 2 and 3, 2005. After the May 2005 hearing, at which Dr. Elion testified, the court en tered a custody order on May 20, 2005, granting sole custody of the child to the mother. Subsequently, mother filed a motion asking the tr ial court to require father to show cause why he should not be held in contempt for vi olating the May 20, 2005 custody order. The trial court determined, in a hearing pursuant to th is motion on November 29, 2005, that father had violated the custody agreement on numerous o ccasions. The trial court found father had interfered with mother’s visitation rights during weeknights, during Thanksgiving break, had supplied the child with locks to lo ck 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 cu stody 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 wa s 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- 4 - by a mental health professional.” Father failed to comply with the trial court’s order; his counsel argued that doing so could compro mise his due process rights. After a March 21, 2006 hearing, the trial court issued an order sta ting that, “Michael Russell shall be released from jail. Pending Mich ael 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.” W ithin 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.”

ANALYSIS 1 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 th e 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 cour t 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 cour ts 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). Sp ecifically, Code § 20-107.2 provides that “[u]pon entry of a decree providing . . . for a divor ce . . . the court may make such further decree

1 Father has filed a “Motion for an Expedite d 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 St ay Orders Pending Appeal,” arguing that the trial court had no jurisdiction to issue various orders. We deny th is motion for reasons provided in the analysis section.- 5 - as it shall deem expedient concerning the cust ody or visitation and suppor t 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 ma intenance 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 discre tion, 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. Furthe rmore, the trial court was within its discretion to revise an existing custody agreement based in part on Dr. Elion’s re port and testimony. Dr. Elion is an expert clinical ps ychologist who met with the parent s and the child numerous times. He found mother to be responsive during the sessi ons, and observed that father was unresponsive and uncooperative. He described the parties’ rela tionship 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 ex ample 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 “t ook away time from other impor tant aspects of childrearing experiences.” The trial court, ac ting 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 c ourt 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- 6 - from his sessions with Benjamin to father’s counsel despite having been subpoenaed for these

documents. In November 2004, both parties se rved 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 in terests, as Dr. Elion explicitly told the child he would not release this information to his parents. A subsequent order from the trial court provid ed that “none of Benjamin’s psychological

records are discoverable.”

“The trial court’s deci sion, when based upon an ore tenus hearing, is entitled to great weight and wi ll 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 allowi ng 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 undiscoverabl e in order to protect th e 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 ad mitting Dr. Elion’s report and giving substantial weight to his testimony when he had been inst ructed only to report on the status of family therapy. Father also contends the trial cour t erred in admitting Dr. Elion’s report when it contained gross misstatements.- 7 - The December 24, 2003 consent order states th at “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 progr ess 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 testimon y. “In determining whether credible evidence exists, the appellate court does no t retry the facts, reweigh the pr eponderance 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 th e trial court has not abused its discre tion, 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 Fathe r’s Deposition Transcript

Father contends the trial cour t erred in admitting the entire transcript of his April 2005 deposition into evidence, arguing that the depo sition transcript cont ained hearsay and was prejudicial to father. “[A] party may, subject to the rules of ev idence, introduce an adverse party’s discovery deposition as substantive evidence in his own ca se, whether the deponent is present or not.” Horne v. Milgrim , 226 Va. 133, 138, 306 S.E.2d 893, 895 (1983).- 8 - The party offering such a depositi on may tender only that part of it he considers relevant. If fa irness requires the admission of additional parts, a remedy is pr ovided by Rule 4:7(a)(5). The deposition is, of course, subject to objection on the grounds of authenticity, relevancy, non-complia nce with the Rules of Court, or any failure to comport w ith the rules of evidence.

Id. Father asserts that the deposition transcript c ontains irrelevant content and hearsay. He does not, however, specify which sections of th e transcript are objecti onable. The deposition transcript consists mainly of father’s answers to questions about Benjam in’s extra-curricular activities, his relationship to Benj amin and mother, and his participation in family therapy. None of these subjects is irre levant 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 h earing and issued an order in a separate case in which father was a party. Judge Keith’s order involved Benjam in’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 tr ial court had already formed an opi nion as to the admissibility of

the child’s mental health records and that the judge abused his discre tion 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 au tomatically or inferentially raise the issue of- 9 - 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 f acts. The courts are practically unanimous in the view that neit her 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 issu ed a ruling involving the admissibility and disclosure of Benjamin’s ment al health records simila r to the one he issued in May of 2005; this fact alone is insufficien t to show Judge Keith abused his discretion. Record No. 1469-05-4, Question Presented IX Sufficiency Of The Evidence

Father contends the trial cour t 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 deci sion, when based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unless plai nly 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 eval uate themselves and their son. He conducted

numerous clinical sessions with the parents and with th e child. The trial judge did not abuse his discretion in relying heavily on Dr. Elion’s testimony. The r ecord shows the trial judge explained his decision-making process in detail, and discussed the fact ors 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 tes timony from the parties and e-mails the parents- 10 - had written concerning Benjamin. The evidence was sufficient to suppo rt the trial court’s

decision.

Record No. 2247-05-4

Jurisdiction On August 19, 2005, the trial court issued an orde r stating that the non-custodial parent is restricted from visiting with Benj amin during the other parent’s half of the summer with him. Mother contends this order merely clarifie d a May 20, 2005 order. Fa ther argues the order modified the May 20 order and that, because th e May 20 order was on appeal at the time, the trial court no longer had jurisdiction. Theref ore, father argues, th e August 19 order is void. Provision E of the May 20, 2005 order states as follows:

The Father shall have visitation fo r the first half of summer break in 2005 and the Mother shall have the second half. Father and Mother shall alternate their respec tive halves each year thereafter. Each of the parties shall have regu lar visitation as described herein for the Father during the other pa rent’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 vis itation for vacation and travel with their son. The provision is unclear. The first sentence stat es 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 “s hall have regular visitation as described herein for the Father during the other parent’s one-h alf summer visitation time.” The third sentence arguably contradicts the first, leaving undefined and unclear the meani ng of “regular visitation as

described herein for the Father.” The trial judge, during the May 3, 2005 hearing, st ated 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 h earing, the trial judge st ated that he viewed- 11 - 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 suppos ed 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 in consistent and unclear statements, the August 19, 2005 order was a clarification, not a modifi cation, of the original order. As such, the trial court had the authority to enter the Augus t 19, 2005 order.

Record No. 2585-05-4 Inconsistent Ruling of September 23, 2005 Order

Father filed a motion to unseal the file in th is case. The trial court entered an order on September 23, 2005, stating “[Father’s] motion is de nied 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 th at the court lacked jurisdiction over the matter and then also ruling that no compelling reason was presented to unseal the f ile. If a court lacks jurisdiction over a case, it must dismiss. The sentence in th e 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.- 12 - Record Nos. 3151-05-4 and 0204-06-4, Questions Presented I and II Contempt Orders

Jurisdiction Father contends the November 29, 2005 or der, suspending a jail sentence, and the January 23, 2006 order, imposing a jail sentence, we re modifications of the May 20, 2005 order, which was on appeal at that time, and, as such, th e trial court lacked jurisdiction to enter those

orders. We do not accept the premise of father’s argum ent. Under Code § 20-124.2(E), the trial court has the “continuing author ity and jurisdiction to make a ny additional orders” which are necessary to enforce a custody order it has pr eviously issued. The November 29, 2005 and January 23, 2006 orders were not entered to m odify the May 20, 2005 order; instead, the court entered them to enforce the May 20, 2005 order b ecause 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 defect s invalidate the November 29, 2005 order. Specifically, he claims lack of service of pr ocess for the January 20, 2006 hearing. However, father presents no arguments, case law, or st atutes to support his contention. “Statements unsupported by argument, authorit y, 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- 13 - order.” Carswell v. Matterson , 224 Va. 329, 332, 295 S.E.2d 899, 901 (1982). In a show cause hear ing, 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 ad mitted 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, th erefore, 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 fr om 4:00 p.m. Friday to 7:30 p.m. Sunday.” During the January 20, 2006 hearing, mother te stified that on December 17, 2005, without prior notice, father took the child whil e 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 fath er in contempt not ba sed 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 or der was the result of a combination of the facts alleged in mother’s show cause motions a nd 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 modi fying visitation orders while the issue of visitation was on appeal. We have addressed th is issue in the secti on entitled “Record No. 1469-05-4, Questions Presented I and II.”- 14 - Record No. 1107-06-4, Questions Presented III and IV

Void Orders Father argues the trial court er red in finding him in contempt of court for violating orders

that were void. The modification of the visi tation 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 a nd 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 w ith 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 co unsel 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 fa ther’s release from in carceration, instructing him to submit a written plan as to how he would obey the court’s orde rs. 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- 15 - provision was a right the December 9, 2005 order di d 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 Cour t award costs and attorney’s fees for matters related to these appeals. Because father’s ap peals were clearly without merit, we deny his request and we award costs and atto rney’s fees to mother. We remand this case to the trial court for a determination of attorney’s fees incu rred 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 th e 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.