COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Huff and Malveaux Argued by tele conference

CLIFTON ANTONY GRANT MEMORANDUM OPINION * BY v. Record No. 0960

- 21

- 4 JUDGE RANDOLPH A. BEALES JUNE 28, 2022 TONI GAIL WALTERS

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

John M. Tran , Judge Clifton Antony Grant , pro se . Paul A. Scott (Madigan & Scott, Inc., on brief) , for appellee. Appellee submitting on brief.
Clifton Antony Grant appeals an order of the Circuit Court of Fairfax County denying his request to modify child custody and visitation. In addition, he assigns error to the circuit court’s
order den ying his motion to hold Toni Gail Walters, the mother of their child, in contempt of court

. Furthermore, he also challenges the circuit court’s refusal to change their child’s last name and to remove the restriction preventing Grant from noticing Walters for hearings on his motions.

* Pursuant to Code § 17.1

- 413, this opinion is not designated for publication. UNPUBLISHED- 2

- I. BACKGROUND 1 Clifton Grant and Toni Walters were married on March 14, 2009. During the marriage, the couple had one child who was born on September 4, 2009. The parents had separated on June 28, 2009, and Walters petitioned the Fairfax County Juvenile and Domestic Re lations District Court ( “ the JDR court ” ) for custody of the child and child support

. On July 15, 2010,
the JDR court ordered that Grant pay child support to Walters. The JDR court on that day also granted Walters sole legal and physical custody of the ch ild and ordered that Grant “ shall have visitation at least one day each week, on a day and during such times as is determined by the mother and is agreeable with the father.” Grant appealed the JDR court’s orders to the Circuit
Court of Fairfax County (“ c ircuit court”) , but the circuit court granted Walters’s motion to
dismiss the case on December 8, 2010. On December 13, 2010, Grant filed motions in the JDR court requesting modifications to child support, custody, and visitation

— all of which were denied

. Grant appealed to the circuit court, which also denied Grant’s motions for change in support and custody

. The circuit court , however , modified the visitation arrangement to give Grant one additional weekend per month and one week during the summer beca use Walters had moved to Massachusetts to complete her
education

. In July and August of 2012, Grant again filed petitions in the JDR court requesting
modification of child support, custody, and visitation

— all of which the JDR court again denied.
Grant appealed the JDR court’s rulings to the circuit court. On October 28, 2013, the circuit court found that there had not been a material change of circumstance s that would warrant a

1 The record in this case was sealed. Nevertheless, the appeal necessitates unsealing relevant portions of the record to resolve the issues Grant has raised. Evidence and factual findings below that are necessary to address the assignments of error are inc luded in this opinion. Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we unseal only those specific facts, finding them relevant to the decision in this case. The remainder of the previously sealed record rema ins sealed.” Levick v. MacDougall , 294 Va. 283, 288 n.1 (2017).- 3

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change in custody or child support and denied Grant’s petiti ons on those issues. T he circuit

court also reduced Grant’s visitation rights to the original terms of the JDR court’s July 15, 2010

o rder because Walters had returned from Massachusetts to live in Virginia

. The circuit court expressly retained jurisdict ion over all future support, custody, and visitation matters in this case.
Since the circuit court issued its October 28, 2013 o rder, Grant has filed multiple motions
for reconsideration with the circuit court

— all of which the circuit court has denied

— an d he has appeal ed six of those decisions to this Court

. On January 10, 2014, the circuit court , in responding to one of the motions filed by Grant , ordered that Grant “shall not place this proceeding on the C ourt’s Motion Docket or file any further motions in this proceeding without first obtaining the specific leave of this C ourt.” The circuit court explained that Grant’s motion had “no basis in law or fact” and was filed “solely to harass the Petitione r and unduly increase litigation costs ” for Walters

. 2 On April 16, 2021, Grant , representing himself, filed a “Motion for Contempt and Rule to
Show Cause , ” in which he claimed that Walters should be held in contempt because she had “ not determined a day whe n the father can have visitation with ” their son “ since September 2019. ”
Grant’s motion also requested that the circuit court grant him joint custody of the child , modify the visitation schedule, and change the child’s last name from Walters to Grant. On April 27, 2021, Grant filed a “Motion to Amend Order ,” restating his request for joint custody and
increased visitation based on “ a material change in circumstance.” Notably, neither of these two motions sought to amend his court

- ordered child support pa yments.

2 Grant has also been held in contempt of court repeatedly for failing to pay child support

. The circuit court found that “ [t] he evidence is undisputed that the Father, believing that he has paid enough, stopped paying any child support since October 1, 2016.”- 4

-

On July 8, 2021, the circuit court held a hearing on Grant’s motions

. 3 On July 15, 2021,
the circuit court issued a fifteen

- page memorandum opinion and order discussing both the lengthy history of this case and its factual findings

. The circuit court made the following rulings. First, the circuit court denied and dismissed with prejudice Grant’s motion to amend custody and visitation because there had been no material change of circumstances that would warrant modification of the current arrangement. The circuit court found Walters to be credible and Grant “presently unfit” as a father. The circuit court further found that during Walters’s testimony, which was “at times, tearful and exasperated recounting of past and recent events,” Walters gave at least fifteen reasons why Grant was unfit to have joint custody , including claims
that Grant failed to communicate properly with her , denied the child reliable contact with her , and disparaged her in front of the child. The circuit court also concluded , “The testimony most impactful to the Court was the Mother’s appeal to the Father about how over these past ten year s she ha d expended considerable time and effort in preventing the child from disliking his own Father.” The circuit court concluded that Walters’s testimony was “remarkably credible and marked with the appropriate level of emotional angst when certain issues were touched upon.” In comparison, the circuit court found that Grant’s “evidence was markedly absent of any
pos itive evidence of how the Father could contribute to the best interest of the child.” As a result, the circuit court found that there had not been a material change of circumstance s

3 Although the January 10, 2014 order barred Grant from filing and holding hearings for motions without the approval of the circuit court, a hearing was still held on these motions. The circuit court later explained, “The judges at Calendar Control hearings do not have easy access to the actual files and more importantly do not have the luxury of time to study the files to ensure whether a hearing should be se t.”- 5

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warranting modification of custody and visitation

— and that joint custo dy was not in the child’s
best interest s
. 4 Second, the circuit court denied Grant’s “ M otion for C ontempt and R ule to S how C ause .”
The circuit court found that “the facts and legal principles submitted are insufficient to make out

even a prima facie case for the C ourt to consider finding the M other, the only fit parent before it, in contempt.” As a result , the circuit court ruled that it “expands the word ‘shall’ to mean ‘may’ in the pertinent part of the October 28, 2013 Order and that visitation m [ a]y occur only upon the
exercise of the Mother ’ s discretion. ” The circuit court explained that its decision would

“ eliminate the argument that if on any given week visitation does not occur that the Mother is in contempt of the Order.” Third, the circu it court ordered that “ [ t ] he Court’s 201 4 Order that precluded the Father from setting or noticing the Mother for a hearing continues.” The circuit court explained that the 2014 order “does not preclude the Father from filing a motion. ” Instead, that ord er “ precludes the Father from noticing the Mother ’ s appearance to a hearing

. . . until such time as the Chief Judge of this Court or her designee determines the pleadings have stated facts sufficient to state a cause of action given the history of his cas e. ” Finally , the circuit court denied Grant’s request to change the child’s last name

. The
circuit court concluded that the request to force the child to change the n ame that he has lived
with since birth lack s merit

.

4 The circuit court found that “[e]ven if the Court finds that a material change of circumstance has occurred,” that “[e]very factor under § 20

- 124.3, except for one inapplicable factor, overwhelmingly favors the Mother ’ s exercise of sole legal and so le physical custody.” The circuit court made extensive findings of fact under the factors in support of maintaining the current custody and visitation order. In short, the circuit court found, “There is no evidence the F ather has done or desires to do an ything to procure any cooperation from the Mother or seek compromise or even take small steps towards increasing co

- parenting. ”- 6

-

The circuit court entered an order denying all of Grant’s requested relief on August 2,
2021. The circuit court did not make any ruling relating to c hild support, which was raised for the first time at the July 8, 2021 hearing. 5 Grant filed a motion for reconsidera tion, which the
circuit court denied

. Grant now appeal s to this Court.
II. ANALYSIS
Grant claims that the circuit court erred on ten separate grounds

. In short, Grant asserts in these assignments of error that the circuit court erred by denying his requests for joint custody and increased visitation, for a reduction in child support, to change the child’s last name, and to remove the restriction on his ability to notice Walters for a hearing. Grant’s assignments o f error will be addressed collectively in the way that he organizes them together in his brief. See Opening Brief
ii.

- iv.
A. Custody and Visitatio n ( Assignments of Error Three, Four, Six, Seven, Eight, and Ten )
Grant argues that the circuit court erred in denying his motions to modify custody and
visitation. Specifically, Grant contends that the circuit court erred by den ying his motion to amend and its findings that he was an unfit parent. “In matters of custody, visitation, and related child care issues, the court’s paramount concern is always the best interests of the child.” Rhodes v. Lang , 66 Va. App. 702, 708

- 09 (2016) (quoting Farley v. Farley , 9 Va. App. 326, 327

- 28 (1990)). “In determining whether a chang e in custody is warranted, the trial court applies a two

- part test: (1) whether a change of circumstances has occurred since the most recent custody award; and (2) whether such a change would be in the best interests of the child.” Khalid

- Schieber v. Huss ain , 70 Va. App. 219, 228 (2019) (quoting Parish v. Spaulding , 26 Va. App. 566, 570

- 71 (1998)) ; see also Keel v. Keel , 225

5 Grant’s written motions did not include a request to modify the child support award, but he argued at length at the July 8, 2021 hearing that child support was incorrectly calculated in the July 15, 2010 o rder.- 7

-

Va. 606, 611 (1983)

. “Whether a change of circumstances exists is a factual finding that will not be disturbed on appeal if the find ing is supported by credible evidence.” Denise v. Tencer , 46
Va. App. 372, 395 (2005) (quoting Ohlen v. Shively , 16 Va. App. 419, 423 (1993)). As the party requesting the change to custody and visitation, father had the burden of proving that a material change of circumstances had occurred. See i d

. at 396 ( the party seeking to modify custody and visitation has the burden of proving that a materi al change of circumstances occurred since the entry of the last order). “In the absence of a material change in circumstances, reconsideration

. . . would be barred by principles of res judicata .” Sullivan v. Knick , 38 Va. App. 773, 782 (2002) ( alteratio n in original).
In deciding Grant’s third, seventh, eighth , and tenth assignments of error, 6 t here is overwhelming credible evidence in the record to support the circuit court’s determination that
there has been no material change of circumstances

. Walters explained to the circuit court that she had at least fifteen issues with Grant’s current fitness as a father, including his disparagement
of Walters in front of the child and Grant’s issues with proper communication

. The circuit c ourt found, “ The testimony most impactful to the Court was the Mother’s appeal to the Father about how over these past ten year s she had expended considerable time and effort in preventing the child from disliking his own Fathe r.” The circuit court conclu ded that Walters’s testimony was “remarkably credible and marked with the appropriate level of emotional angst when certain
issues were touched upon.” In addition, while “ [t] he intentional withholding of visitation of a child from the other parent without just cause may constitute a material change of circumstances

6 Grant’s third a ssignment of e rror states, “Trial court erred in denying the father motion to amend and approving motion to strike .” His seventh assignment of error states, “ Trial court erred in questioning the ability of a judge to continue or set a hearing.” His eighth assignment of error state s, “Trial court erred in implying the father is presently unfit .” Grant’s tenth assignment of error states, “ The defendant is being denied due process and equal protection under the law .”- 8

-

justifying a change of custody in the discretion of the court ,” the record in this case demonstrates
that Walters had not withheld the child from Grant , who had not called or requested visitatio n between September 2019 and March 2020

. Code § 20

- 108 (emphas e s added)

. For Grant’s sixth a ssignment of e rror (“Trial court erred in treating the father’s and the mother’s statement and allegation differently”), the circuit court needed to make factual findings to determine if there was a material change of circumstance s when deciding Grant’s motion to modify child custody and visitation

. See Denise , 46 Va. App. at 395. In addition, Grant argues in his fourth assignment of error that the “ [t] rial court erred in expanding the word ‘shall’ to

mean ‘ may’” because “[w]ith this order, father will not be able to f ile a rule show cause when the mother alienates the father from the child by denying visitation thus denying the father access to the courts.” However, while Grant raised seventeen written objections to the circuit court’s August 2, 2021 order, he did not include any objection to the circuit court’s ruling that expanding the word “shall” to mean “may” was necessary to clarify the existing visitation arrangement. Consequently, Grant has not preserved this issue for appeal. See Rule 5A:18

. Therefore, f or all
of these reasons , this Court does not disturb the circuit court’s ruling denying Grant’s motion to modify child custody and visitation

.

B. Child Support ( Assignments of Error One , Two , and Ten ) Although Grant has three assignments of error 7 relating to child support, t he circuit court in both its July 15, 2021 memorandum opinion and order and its August 2, 2021 order did not make any ruling on child support. Grant did not raise child support in his initial written motions ,

7 Grant’s first assignment of error states, “Trial court erred in not correcting the clerical error or fraud upon the court that altered the order of the court when it was brought to the court attention. ” Grant’s second assignment of error states, “ Trial court erred in not recalculating the child support award to make i t in line with the child support order, when it was brought to the court attention. ” Grant also argues that his tenth assignment of error, discussed supra , applies to child support in addition to child custody and visitation.- 9

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and the circuit c ourt did not make any ruling on the child support arguments in the orders currently before this Court . As a result, this Court cannot reach these assignments of error pertaining to child support because we do not have a circuit court ruling on it presentl y before us.
See Duva v. Duva , 55 Va. App. 286, 299 (2009) (“Because the record does not show that the trial court ruled on appellant’s argument, there is no ruling of the trial court for this Court to review on appeal

. ”); Lostrangio v. Laingford , 261 Va. 495, 497 n

. 2 (2001) (“ The trial court made no ruling with respect to the Town ’ s demurrer and, accordingly, we will not address that issue in this appeal.”).
C. Name Change for the Child ( Assignment of Error Nine )
Grant argues in his ninth assignment of error that the “ [t] rial court erred in not changing the child last name and that the change lacks merit. ” “Under Code § 8.01

- 217, the parent seeking to change a child’s surname over the objection of the other parent bear s the burden of proving that the name change is in the child’s best interest.” McMahon v. Wirick , 288 Va. 197, 200 (2014). “[T]o prove that the name change is in the child’s best interest, the petitioning parent must demonstrate that ‘substantial reasons exist for the change.’” Id

. (quoting Flowers v.
Cain , 218 Va. 234, 23 6 (1977)). “[W]e will only reverse a trial court’s decision to grant or deny a name change upon a showing that the trial court abused its discretion.” Id

. at 201

- 02. Here, the circuit court found no reason to change the child’s last name , which has been

“ Walters ” since his birth

. The record does not demonstrate that Grant has provided a substantial reason for a name change. Although Grant’s argument appears to rely on the idea that the child would inherently benefit from sharing his last name , Grant conc eded at oral argument before this Court that the child’s last name has been Walters since birth

. As a result , we certainly cannot say
that the circuit court abuse d its discretion in denying Grant’s motion at this point to change the

now twelve

- year - old ch ild’s last name

.- 10

- D

. Filing Restriction ( Assignment of Error Five ) Grant argues in his fifth assignment of error that the “ [t] rial court erred in continuing the court’s 2014 Order that precluded the father from setting or noticing the mother for a hearing. ” The Supreme Court has stated that a court “must .

. . protect its jurisdiction from repetitious and harassing conduct that abuses the judicial process.” Madison v. Bd. of Supervisors of Loudoun
C n ty. , 296 Va. 73, 76 (2018).

As the United Stat es Supreme Court has noted, “ [e]very paper filed with the Clerk of this court, no matter how repetitious or frivolous, requires some portion of the institution ’s limited resources. A part of the Court’s responsibility is to see that these resources are al located in a way that promotes the interests of justice. ” Id

. (quoting In re McDonald , 489 U.S. 180, 184 (1989)).

In determining whether a pre

- filing injunction is substantively warranted, a court must weigh all the relevant circumstances, including (1) the party ’ s history of litigation, in particular whether he has filed vexatious, harassing, or duplicative lawsuits; (2) whether the party had a good faith basis for pursuing the litigation or simply intended to harass; (3) the extent of the burden on the courts and other parties resulting from the party's filings; and (4) the adequacy of alternative sanctions. Id

. at 77 (quoting Cromer v. Kraft Foods N. Am., Inc. , 390 F.3d 812, 81 8 (4th Cir. 2004) )

. Since the circuit court’s October 28, 2013 o rder, Gran t has filed multiple motions for reconsideration, which the circuit court denied, and appeals to this Court. As a result, the circuit

court restricted his ability to schedule a hearing on his motions until it “ determines the pleadings
have stated facts sufficient to state a cause of action given the history of his case.” This restriction does not prohibit Grant from filing new motions or prevent his access to the court

. Instead, the restriction was intended to avoid unnecessary hearings to the detriment of Walters.
Under the circumstances of this case , we conclude that the circuit court did not abuse its discretion in continuing to restrict Grant’s ability to notice Walters for a hearing. See Switzer v. Switzer , 273 Va. 326, 333 (2007) (n oting that “leave of court” requirements have been “widely- 11

-

approved on appellate review” because they ensure that the filing “is not frivolous or filed for the purpose of harassing the opposing party or the court”).
III. CONCLUSION
For all of the foregoing reasons, we do not disturb the ruling of the circuit court. Affirmed

.