Khakee v. Rodenberger

FARAH KHAKEE, F/K/A FARAH RODENBERGER v. DAVID WAYNE RODENBERGER

Record No. 1030-19-4

COURT OF APPEALS OF VIRGINIA

FEBRUARY 25, 2020

UNPUBLISHED

Present: Judges Huff, Russell and Athey

MEMORANDUM OPINION^* BY JUDGE GLEN A. HUFF

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Grace Burke Carroll, Judge

(Farah Khakee, on brief), pro se. Appellant submitting on brief.¹

(Camille A. Crandall; Hicks Crandall Juhl PC, on brief), for appellee. Appellee submitting on brief.

Farah Khakee ("mother") appeals an order of the Fairfax County Circuit Court granting David Wayne Rodenberger ("father") sole legal custody, modifying mother's visitation rights, and denying her request to seal the case. Mother raises ten assignments of error. For the reasons that follow, this Court affirms.

I. BACKGROUND

"Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its findings are entitled to great weight and will not be disturbed on appeal unlessplainly wrong or without evidence to support it." Pommerenke v. Pommerenke, 7 Va. App. 241, 244 (1988) (quoting Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 20 (1986)). So viewed, the evidence is as follows:

The parties were married in 1999. They had two daughters, one in 2006 and the other in 2008. The parties separated in 2012, and mother filed for divorce. In 2013, the parties reached a settlement agreement that resolved custody, support, and equitable distribution. The trial court incorporated that agreement into its final custody order and final decree of divorce. Pursuant to that agreement, the trial court awarded mother primary physical custody of the children and permitted her to remain in New York, where mother had moved after the separation. The court awarded the parties joint legal custody.

In 2015, the trial court granted father's motion to modify custody and awarded him primary physical custody. It continued joint legal custody. It awarded mother visitation for four weeks in the summer, six specific three-day weekends, alternating year visitation for the Thanksgiving and spring breaks, and half the Christmas holiday break. The trial court ordered the children to continue "therapy with Dr. Christopher Lane until such time as they are released from therapy by Dr. Lane or the parties mutually agree to terminate the therapy."

In early 2019, mother, acting pro se, filed several motions. She moved to seal the record in the case, to terminate the appointment of Dr. Lane because he had ceased treatment, to order treatment with a new therapist, and to modify physical custody to a one week on, one week off arrangement to allow equal parenting time because she had moved to Virginia where father continued to reside.

The trial court held a two-day hearing beginning April 30, 2019. At the beginning of the hearing, father moved to quash subpoenas duces tecum mother had had served on the parties'daughters the day before. The trial court quashed the subpoenas, finding that they had not been timely served.

During opening arguments, father asserted that the parties could not co-parent and requested that he be granted sole legal custody. Mother objected, arguing that legal custody was not before the court because nothing had been filed about legal custody. The trial court explained that mother had moved to modify custody and that, if the trial court found a material change in circumstances, all aspects of custody, physical and legal, would be open to modification.

After the hearing, the trial court found there had been two material changes in circumstances. First, it found mother had moved to Virginia. Second, it found that the parties could not co-parent. After reviewing the statutory factors, it found it was in the best interest of the children that father have ultimate decision-making authority. Although the trial court required "good faith consult[ation] with one another on the issues of education, religion, and medical treatment, and extracurricular activities," it gave father sole legal custody and legal decision-making authority if the parties could not agree.

The trial court also increased mother's visitation schedule. It awarded her visitation every other weekend and the evening on alternating Thursdays instead of the six specific long weekends it had previously awarded. Otherwise, the trial court left in place the remainder of the visitation schedule.

By agreement of the parties, the trial court granted the motion to remove Dr. Lane as treating therapist and required the parties to select a new therapist. It denied the motion to seal.

This appeal followed.

II. ANALYSIS

As the party alleging reversible error, "the burden is on [mother] to show that reversal is justified." D'Agnese v. D'Agnese, 22 Va. App. 147, 153 (1996). Moreover, this Court will not "search the record for error in order to interpret [mother]'s contention[s] and correct deficiencies in a brief." West v. West, 59 Va. App. 225, 235 (2011) (quoting Buchanan v. Buchanan, 14 Va. App. 53, 56 (1992)). "[I]t is not this Court's 'function to comb through the record . . . in order to ferret-out for ourselves the validity of [mother's] claims . . . .'" Martin v. Commonwealth, 64 Va. App. 666, 674 (2015) (quoting Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7 (1988) (en banc)). Moreover, self-represented litigants are "no less bound by the rules of procedure and substantive law than [parties] represented by counsel." Townes v. Commonwealth, 234 Va. 307, 319 (1987).

A. Issues Waived

1. Failure to Argue

Rule 5A:20 requires that appellant's brief include "[t]he standard of review and the argument (including principles of law and authorities) relating to each assignment of error." Accordingly, Rule 5A:20(e) bars this Court from addressing any issues unsupported by argument or authority. Epps v. Commonwealth, 47 Va. App. 687, 718 (2006) (en banc), aff'd, 273 Va. 410 (2007). Additionally, "[s]tatements unsupported by argument, authority, or citations to the record do not merit appellate consideration." Buchanan, 14 Va. App. at 56.

Appellate courts are not unlit rooms where attorneys may wander blindly about hoping to stumble upon a reversible error. If the parties believed that the circuit court erred, it was their duty to present that error to us with legal authority to support their contention.

Fadness v. Fadness, 52 Va. App. 833, 851 (2008).

Here, mother's fifth assignment of error claims the trial court erred because it punished the minor children for alleging father "abused/neglected/mistreated them." Mother never develops this argument anywhere in the argument section of her brief and thus has waived this error.

In her seventh assignment of error, mother claims the trial court erred because it refused to enforce subpoenas duces tecum of the minor children that were only served the day before the hearing. As with her fifth assignment of error, however, mother never develops that argument anywhere in the argument section of her brief. She has thus waived the assignment of error.

Moreover, mother's first assignment of error claims the trial court erred by failing to seal the record. Although mother makes a passing reference to the failure to seal in the argument section of her brief, she cites no authority supporting her argument that the trial court should have sealed the record. This Court finds that the failure to cite authority is significant and that mother's first assignment of error is waived. See Atkins v. Commonwealth, 57 Va. App. 2, 20 (2010) ("Because appellant provides no legal argument or authority in his brief to support his argument, and we find this omission significant, appellant's claim that the trial court erred . . . is waived under Rule 5A:20(e).").

2. Failure to Preserve

Rule 5A:18 provides that "No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or . . . to attain the ends of justice." "Rule 5A:18 applies to bar even constitutional claims." Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998). In order to preserve an issue for appeal, "an objection must be timely made and the grounds stated with specificity." McDuffie v. Commonwealth, 49 Va. App. 170, 177 (2006) (quoting Marlowe v. Commonwealth, 2 Va. App. 619, 621 (1986)). Further, making one specific argument on anissue does not preserve a separate legal point on the same issue for review. Clark v. Commonwealth, 30 Va. App. 406, 411-12 (1999). Indeed, "[t]he primary function of Rule 5A:18 is to alert the trial judge to possible error so that the judge may consider the issue intelligently and take any corrective actions necessary." Neal v. Commonwealth, 15 Va. App. 416, 422 (1992) (internal citation omitted). Therefore, this Court does not consider issues not raised in the trial court on appeal. West Alexandria Prop., Inc. v. First Virginia Mortgage and Real Estate Inv. Trust, 221 Va. 134, 138 (1980) ("On appeal, though taking the same general position as in the trial court, an appellant may not rely on reasons which could have been but were not raised for the benefit of the lower court.").

a. Due Process Claim

In her tenth assignment of error, mother claims the trial court erred by depriving her of due process. In her brief, she argues that the trial court deprived her of due process because the trial court modified legal custody when neither party had filed a motion for a change in legal custody.² The trial court held that once it found a material change in circumstances for mother's motion to change physical custody to equal time for each parent, all custody issues, including legal custody, would be reevaluated in light of the best interests of the children. Although mother objected to considering a change in legal custody, she did not argue to the trial court that she was being deprived of...