Achin v. Ochoa

NORMAN M. ACHIN v. SANDRA I. OCHOA

Record No. 1466-19-4

COURT OF APPEALS OF VIRGINIA

JULY 28, 2020

UNPUBLISHED

Present: Judges Russell, Malveaux and Senior Judge Clements

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE WESLEY G. RUSSELL, JR.

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA

Lisa B. Kemler, Judge

Norman Achin, pro se.

Ashley Kempczynski; Ellen M. Dague, Guardian ad litem for the minor child (Timothy Bryan Beason; Dipti Pidikiti-Smith; Legal Services of Northern Virginia, on brief), for appellee.

Norman Achin, father, appeals an order of the circuit court awarding Sandra Ochoa, mother, sole legal and primary physical custody of their minor child and limiting his visitation to two two-hour supervised visits per month. Finding no reversible error, we affirm the judgment of the circuit court.

BACKGROUND

"When reviewing a trial court's decision on appeal, 'we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences.'" Brandau v. Brandau, 52 Va. App. 632, 635 (2008) (quoting Smith v. Smith, 43 Va. App. 279, 282 (2004)). "That principle requires us to discard the evidence of the appellant which conflicts, either directly or inferentially, with the evidence presented by the appellee at trial." Id. (quotingPetry v. Petry, 41 Va. App. 782, 786 (2003)). Accordingly, we present the facts in the light most favorable to mother.

The parties were married in May 2003 and had a child on August 24, 2004. The child is diagnosed with high functioning autism. As part of their ultimate divorce settlement, the parties entered into an agreement regarding custody and visitation of the child, which was memorialized in a consent order entered by the City of Alexandria Juvenile and Domestic Relations District Court (JDR court) on August 16, 2011. The order provided that the parties would share joint legal custody and that mother would have primary physical custody. Father was awarded visitation for four hours twice a week plus one overnight visit. Father also was afforded "reasonable telephone visitation" with the child. The parties further agreed that there would be no contact between them except as required to address the child's needs.

Several years later, the parties were again in litigation, raising issues regarding compliance with visitation orders, the sharing of medical expenses, and alleged abuse by father. A guardian ad litem (hereinafter "guardian") was appointed to protect the interests of the child. Ultimately, the parties reached a new visitation agreement, memorialized by order entered by the circuit court on June 7, 2016. In addition to other minor changes, the order amended the 2011 order by establishing a specific custody exchange location and holiday visitation schedule; the order otherwise directed that "the parties shall abide by all other provisions of the [2011] [o]rder that are not in conflict with this [o]rder." The matter was remanded to the JDR court. After father sought a show cause order against mother, the JDR court entered a supplemental order on March 3, 2017, whereby father was awarded "a minimum of two telephone calls per week . . . between the hours of 4:00 p.m. and 6:00 p.m." The order noted that "Monday and Wednesday were preferred contact days" for the telephone calls.

In early 2018, father filed in the JDR court a motion to amend the 2016 visitation order. He alleged his relocation to another jurisdiction, a modified work location, and a change in academic calendars warranted a modification. Father requested that he be permitted to pick up the child from school in certain circumstances, that the child exchange location be changed to accommodate his relocation, and that some modifications to the holiday visitation schedule be made. Mother also filed a motion to modify custody and visitation; she requested that a guardian be appointed for the child, that mother be granted sole legal custody, that father's in-person weekday visitation be terminated, and that the telephone visitation schedule be modified. On March 27, 2018, after a hearing, the JDR court entered an order reappointing the previous guardian for the child and setting the matter for trial; the order indicates both mother and father were present at the hearing.

On June 5, 2018, the JDR court conducted an ore tenus hearing on the competing motions. As a result of the hearing, the JDR court made certain factual findings and entered an order granting mother sole legal and physical custody but maintaining father's in-person visitation while specifying further conditions as to in-person and telephone visitation and payment of medical expenses. Father appealed the JDR court order to the circuit court, which set the matter for a scheduling hearing on August 8, 2018.

On June 22, 2018, father filed a motion in limine with the circuit court to remove the guardian "for cause." Father alleged that the guardian was biased in favor of mother, failed to provide him proper notice of her appointment in the JDR court, appeared to collude with mother's counsel, and acted contrary to professional standards. In support of his motion, father chronicled portions of the proceedings before the JDR court and enumerated numerous ways in which he disagreed with the guardian's investigation. Attached to his motion were notes he took summarizing his account of the guardian's visit to his home, of JDR court proceedings, of an individualized education plan meeting, and telephone conversations with the child.

While his motion was pending, on July 24, 2018, father was charged in Fairfax County with two felonies of a sexual nature related to a child under fifteen years of age. Based on the criminal charges against father, the guardian filed emergency motions to suspend visitation and for a psychological evaluation of father. If visitation were to continue, the guardian asked that the duration be limited and that it be supervised. Mother filed a motion joining in the guardian's request regarding visitation.

By order dated August 17, 2018, the circuit court partially granted the emergency motions. The circuit court directed that, pendente lite, father's in-person visitation be limited to two hours a week in a public setting with an approved independent supervisor. The circuit court denied the request for a psychological examination of father. On September 4, 2018, the circuit court entered an order appointing the guardian to serve in that capacity in relation to the matters regarding the child that were pending in the circuit court.

In November 2018, father sought to subpoena medical records of mother. He specifically requested "all records of [mother] from July, 2003, until July, 2009 . . . ." In response, mother filed a motion to quash. On November 28, 2018, the circuit court conducted a hearing on father's motion to remove the guardian and also addressed father's request for mother's medical records.

Father first offered to provide the circuit court "a little background," but the circuit court interrupted, stating, "I don't need any background, I've read everything. Let's hear the evidence." Father testified to his interactions with the guardian; he stressed that the guardian had had no contact with him from 2016 until she "appeared again" in March 2018. Father testified that he had not received any paperwork regarding her reappointment, but that when they met in March 2018, the guardian "assured me she had been appointed."

Father further asserted that the guardian had not conducted a proper and sufficiently thorough investigation. He also disputed the findings she made in her written reports; although theguardian had filed the reports with the circuit court and had asked that the circuit court "receive" them, they were not entered into evidence as exhibits. Father contended the guardian impermissibly had recorded him during some of their conversations. Father also raised with the circuit court allegations of mother's failure to comply with previous court orders and commented on his criminal case.

On cross-examination, father affirmed that the guardian had made no recommendations against him in 2016 and that there was no litigation related to the child in 2017. Father acknowledged that the guardian had informed him when she visited him in March 2018 that she had been appointed, but he emphasized that he had seen no JDR court order of appointment. Although no such order was introduced into evidence, it appears from the transcript that such an order was shown to him during his testimony. He did not challenge the validity of the circuit court's September 2018 appointment order.

Mother testified that the guardian was "very professional" and that the child liked her. Mother described her daughter as "happy to see" the guardian.

In making its ruling, the circuit court commented that father "disagree[d] with [the guardian's] opinion" and that while the guardian served as "sort of an adjunct," it was father's burden "to present the evidence that would support a modification of the last custody order." The circuit court added, "You clearly cannot co-parent, which is the reason why I suspect the [JDR court] modified the custodial arrangement which [ruling] you have appealed." It further noted that the guardian had been serving in that capacity "for an extended period of time [and] knows the parties well" and found that "it would do [the child] a disservice . . . given her autism diagnosis and associated issues with that . . . to remove the GAL . . . ." The circuit court further stated that it had no evidence that the guardian was "not faithfully executing her role as a GAL." The circuit court denied father's motion after concluding that "the evidence has been presented here today does notin this court's opinion support a motion to disqualify the guardian . . . nor do I think it would be in the child's best interest to do that."

The circuit court also denied father's request for the specified medical...