Powell v. Knoepfler-Powell

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MICHAEL POWELL v. MELANIE KNOEPFLER-POWELL

No. 0853-22-4

Court of Appeals of Virginia

May 16, 2023

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY David Bernhard, Judge

James B. Kinsel (Rebecca Bricken Kinsel; Siobhan Therese Canty Protorae Law, PLLC, on briefs), for appellant.

Sharon Voyles Filipour (Kinsey, Lynch &Filipour, on brief), for appellee.

Present: Judges Beales, Fulton and Lorish Argued at Fredericksburg, Virginia

MEMORANDUM OPINION ^[*]

JUNIUS P. FULTON, III JUDGE

Michael Powell (father) appeals the Fairfax County Circuit Court's "Custody and Child Support Order," entered on May 9, 2022.^[1] Father argues that the trial court erred by not modifying his custodial time with the parties' minor child and awarding Melanie Knoepfler-Powell (mother) with final decision-making authority regarding the child's medical care. Father further challenges the trial court's decision to allow the child to testify and contends that the trial court erred by reviewing the child's written notes that she brought with her when she testified. Father argues that the trial court "improperly considered" opposing counsel's statements and erred in its interpretation of the child's testimony. He also contends that the trial court erred by not providing a "mechanism for future evaluation or determination of whether [the child] would be ready in the future for additional time" with father. Finally, father argues that the final order contains inaccurate information and remand is appropriate to correct the final order. We find no substantive error and affirm the trial court's judgment. We will, however, remand to the trial court to address any clerical errors that may be contained in the final order.

BACKGROUND

"On appeal, we view the evidence 'in the light most favorable to the prevailing party below and its evidence is afforded all reasonable inferences fairly deducible therefrom.'" Bedell v. Price, 70 Va.App 497, 500-01 (2019) (quoting Bristol Dep't of Soc Servs. v. Welch, 64 Va.App. 34, 40 (2014)). Here, mother is the prevailing party.

Father and mother are the biological parents to a child who was nine years old at the time of the trial court hearing.^[2] On July 21, 2017, the trial court entered a final decree of divorce, which incorporated the parties' property settlement agreement (the "PSA"). The PSA included provisions regarding custody, visitation, and child support. The parties agreed to joint legal custody of the child, and mother had primary physical custody. Father's parenting time included the second and fourth weekend of every month, and the child alternated between mother and father on any fifth weekend of a month. Father also had time with the child for four weeks in the summer, and the parties shared or alternated holidays and other special occasions.

On March 26, 2021, mother notified the trial court of a change in her address and her intention to relocate with the child to Alabama, effective April 30, 2021.^[3] Father objected to mother relocating with the child and requested an injunction. Mother subsequently moved to modify custody and visitation and requested that the trial court allow the child to relocate with her to Alabama, where her family lived and she had a job offer.^[4]

In response, father also moved to modify custody and visitation. Father, who was an employee of the U.S. Department of State, had been required to work in Iraq from the summer of 2020 through the summer of 2021, but as of July 12, 2021, had a "desk job" and was in northern Virginia "permanently." He requested primary physical custody of the child if mother moved to Alabama, or "more time" with the child if mother stayed in Virginia. Father also requested "tie-breaking authority" for medical decisions regarding the child.

The trial court entered a "Domestic Relations Case Scheduling Order," setting a two-day trial for January 25 and 26, 2022,^[5] and establishing pretrial deadlines. Both parties filed exhibit and witness lists, as required under the scheduling order. Mother named the child as a potential witness, to which father objected. He filed a motion in limine to preclude the child's testimony and moved to quash the nine-year-old child's subpoena. Father argued that the child's "[i]nvolvement" in the hearing was not in her best interests. The trial court took father's motion under advisement.

At the trial, father presented evidence regarding the material change of circumstances since the last court order. When father and mother previously agreed on the custody and visitation arrangements, father's work schedule was "very unpredictable" and included travel. He knew that he would have to "do a[n] overseas tour somewhere" within a couple of years of that agreement because of the State Department's policy.

While in Iraq, from July 2020 through July 2021, father tried to contact the child "every single day" by phone, Facebook Messenger, or Skype. Three times during his tour, father was able to return to Virginia and requested to visit with the child "as much as possible."

When father returned home permanently in July 2021, his job assignment changed, and he no longer had "unpredictable work travel." He did not expect another overseas work assignment for "at least eight years." Therefore, he sought to spend "more time" with the child and became "more engaged" with the child. Father explained that he wanted to help the child with her schoolwork, "develop her confidence," and encourage her to "try new things."

At the time, father was living with his girlfriend and her daughter in the former marital residence, where the child grew up.^[6] Father claimed the child and his girlfriend's daughter "get along great" but admitted that they had some "squabbles" like siblings do. Father described the child's relationship with his girlfriend as "wonderful" and "growing."

At the end of the first day of trial, the trial court raised the issue of the child testifying and father reiterated his objection. Father emphasized that the trial court would hear from numerous witnesses who could testify about the child and her relationship with the parties, so it was "not necessary" for the child to "be exposed" to court. Father was concerned about the child's well-being and the unknown "potential harm" to her for having to testify. He argued that the child's well-being "outweighs the benefit . . . of being able to hear whatever [the child] might have to say." Mother's counsel informed the trial court that she had spoken with the child about the court proceeding and the child wanted "to be heard." Father expressed concern that counsel could have "skewed" the situation when talking with the child. Considering the child knew of the proceedings and there was no evidence that testifying would be "psychologically detrimental," the trial court found "no reason to restrict the child from appearing." The trial court then reviewed the procedures for the child testifying, including "the qualification part" and "the substantive part" of her testimony.

The next morning, the school counselor testified that the child had visited her the previous day because she was "anxious" and "nervous" about having to testify and "having to state her wishes in front of both parents." After the school counselor testified, father renewed his motion in limine concerning the child testifying. Father argued that it was not in her best interests to testify, especially considering her age and "level of anxiety." The trial court acknowledged that the child told a "neutral person" that she was nervous about coming to court but found that her feelings were "understandable." Mother argued that the trial court needed to consider the "preference of the child" and claimed that father had not agreed to other suggested methods for conveying the child's preference, such as a therapist's testimony or stipulating to the child's statements after counsel spoke with her. After hearing the parties' arguments, the trial court found that testifying would not be "any more harmful [to the child] than already being in this . . . situation."

Following the trial court's ruling, the child entered the courtroom and met the judge; she stated that she had "brought a few notes" with her. The trial court told the child that she could refer to them if she wanted. The trial court then questioned the child regarding her competency to testify, and ultimately, neither party objected to the child's qualifications for testifying.

The trial court questioned the child about her parents. The child explained that when father returned from Iraq and had more time to spend with her, she thought it was "good to see him a little bit," but she was "used to hanging out with mom and stuff" and did not "want to go back." When the trial court tried to clarify what she meant, the child did not have an immediate response. The trial court then asked her if she wanted to look at her notes. The child informed the trial court that they were "not really notes" because she "wrote a whole book about it." The child shared her notes with the trial court and told the judge that she wrote it "yesterday and today." The trial court told counsel that it had not decided whether it would consider her notes, but it wanted to "review [them]." After taking a "quick look" at the child's notes, the trial court asked the child about her dog, with whom she said she was "[v]ery, very close."

The trial court then asked the child about her relationship with father. The child could not express to the trial court what father "could do better" to make things more "comfortable" for her. The trial court asked the child whether she had told father about "[s]ome of the things that [she] had in the notes," and the child indicated that she had...