                   COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Annunziata
Argued at Richmond, Virginia


SHELLIE BILLINGSLEY
                                         MEMORANDUM OPINION * BY
v.   Record No. 3091-01-1                 JUDGE LARRY G. ELDER
                                              APRIL 30, 2002
RICHARD BILLINGSLEY


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    A. Bonwill Shockley, Judge

          Joseph A. Migliozzi, Jr. (Hooker & Migliozzi,
          P.C., on brief), for appellant.

          No brief or argument for appellee.


     Shellie Billingsley (mother) appeals from an order of the

trial court ruling that the State of Washington was a more

appropriate forum for the resolution of her dispute with Richard

Billingsley (father) over the custody of the parties' three

minor children.   On appeal, mother contends the trial court

abused its discretion when it ceded jurisdiction to the State of

Washington because (1) father waived his right to contest

Virginia's jurisdiction; (2) res judicata prevented the trial

court from reversing its previous jurisdictional ruling; (3) the

transfer deprived her of her right to a de novo appeal of the

custody ruling made by the district court; and (4) Virginia's


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
version of the Uniform Child Custody Jurisdiction Act (the

UCCJA) justified the court's retaining exclusive jurisdiction

over the custody determination.   We hold that mother failed to

preserve her first three assignments of error for appeal and

that the court's decision to transfer jurisdiction of the

custody dispute to the Washington court did not constitute an

abuse of discretion.   Therefore, we affirm the challenged order.

     Rule 5A:18 provides that "[n]o ruling of the trial court

. . . will be considered as a basis for reversal unless the

objection was stated together with the grounds therefor at the

time of the ruling, except for good cause shown or to enable the

Court of Appeals to attain the ends of justice."   The purpose of

the rule is to allow the trial court to cure any error called to

its attention, thereby avoiding unnecessary appeals and

retrials.    See, e.g., Lee v. Lee, 12 Va. App. 512, 514, 404

S.E.2d 736, 737 (1991) (en banc).

     Our review of an appeal is restricted to the record.

Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 401

(1986).    "An appellate court must dispose of the case upon the

record and cannot base its decision upon appellant's petition or

brief, or statement of counsel in open court.   We may act only

upon facts contained in the record."    Smith v. Commonwealth, 16

Va. App. 630, 635, 432 S.E.2d 2, 6 (1993).   Furthermore, we

presume on appeal that the judgment of the lower court is

correct.    Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255,

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256-57 (1991).   The burden is on the appellant to present a

sufficient record from which we may determine both that the

claimed error has occurred and that appellant preserved that

error for appeal.   See Twardy v. Twardy, 14 Va. App. 651, 658,

419 S.E.2d 848, 852 (1992) (en banc); Lee, 12 Va. App. at

516-17, 404 S.E.2d at 738-39.

     Here, mother presented a record sufficient to prevent

dismissal of her appeal.   However, the record is insufficient to

prove she preserved her first three assignments of error for

appeal and insufficient to permit us to conclude that the trial

court's transfer of jurisdiction constituted an abuse of

discretion.   Although mother asked the trial court to create a

record after its August 2001 hearings on the issue of

jurisdiction, the record contains no indication mother made a

contemporaneous attempt to have those proceedings transcribed.

As a result, the record on appeal contains a transcript of a

telephone conference of August 21, 2001, between the trial court

and Judge Cuthbertson of the Superior Court of Pierce County,

Washington.   The record indicates that an additional conference

call took place on August 17, 2001 and that counsel for the

parties presented argument on that date.   However, no transcript

of that proceeding appears in the record, and appellant offered




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no statement of facts pursuant to Rule 5A:8(c) to establish what

arguments were made during that proceeding. 1

     The record properly before us on appeal contains no

indication that mother preserved for appeal her argument that

father waived his right to contest the jurisdiction of the trial

court by appearing, through counsel, on his transfer motion.

The record also contains no indication that mother claimed in

the trial court that a transfer of jurisdiction would deprive

her of her right to a de novo appeal of the district court's

custody ruling.   In her motion for rehearing, she merely noted,

inter alia, that at the time of transfer, the matter was set to

be tried in Virginia Beach Circuit Court pursuant to a timely

appeal from the district court ruling.   This statement was

insufficient to put the trial court on notice of her claim that

transfer deprived her of the right to a de novo appeal.

Similarly, mother failed to preserve for appeal her argument

that the trial court's denial of father's motion to transfer



     1
       Code § 20-146.9, titled "Communication between courts,"
requires that a record must be kept of communications between
courts which do not deal solely with scheduling or other
housekeeping matters and that this record must be made available
to the parties. However, according to the Official Comment
accompanying this code section, the record may be a summary of
the communication and the purpose of the record is so that the
parties "may be informed of the content of the conversation."
Thus, we conclude that Code § 20-146.9 is not intended to make
the court responsible for creating a record sufficiently
detailed to permit an appeal and does not place the burden on a
court to keep a record of communications in which the parties
participate.

                               - 4 -
jurisdiction by order entered July 17, 2001, was a final order

on the subject of jurisdiction and, thus, that res judicata

prevented the trial court from reversing that decision and

ordering transfer in its order of August 23, 2001.   Mother

indicated in her motion for rehearing merely that the court

previously denied father's transfer motion.   She did not assert

a belief that the second motion was barred by res judicata.

Thus, the record properly before us fails to establish that

mother presented these issues to the trial court, and we see no

reason to invoke the good cause or ends of justice exceptions to

Rule 5A:18.

     Finally, based on the record before us on appeal, we

conclude the trial court's decision to relinquish jurisdiction

over the custody dispute to the Superior Court of Pierce County,

Washington, was not an abuse of its discretion.   Code

§ 20-146.18 provides as follows:

               A. A court of this Commonwealth that
          has jurisdiction under this act to make a
          child custody determination may decline to
          exercise its jurisdiction at any time if it
          determines that it is an inconvenient forum
          under the circumstances and that a court of
          another state is a more appropriate forum.
          The issue of inconvenient forum may be
          raised upon the motion of a party, the
          court's own motion, or request of another
          court.

               B. Before determining whether it is an
          inconvenient forum, a court of this
          Commonwealth shall consider whether it is
          appropriate for a court of another state to
          exercise jurisdiction. For this purpose,

                              - 5 -
          the court shall allow the parties to present
          evidence and shall consider all relevant
          factors, including . . .

               *    *    *     *     *     *    *

               2. The length of time the child has
          resided outside the Commonwealth;

               *    *    *     *     *     *    *

               6. The nature and location of the
          evidence required to resolve the pending
          litigation, including testimony of the
          child;

               7. The ability of the court of each
          state to decide the issue expeditiously and
          the procedures necessary to present the
          evidence; and

               8. The familiarity of the court of
          each state with the facts and issues in the
          pending litigation.

               C. If a court of this Commonwealth
          determines that it is an inconvenient forum
          and that a court of another state is a more
          appropriate forum, it shall stay the
          proceedings upon condition that a child
          custody proceeding be promptly commenced in
          another designated state and may impose any
          other condition the court considers just and
          proper. . . .

     Pursuant to Code § 20-146.9, "a court of this Commonwealth

shall communicate with the court appearing to have jurisdiction

in any other state . . . .   The court may allow the parties to

participate in the communication."     According to the Official

Comment accompanying that code section, "[t]he parties'

participation in the communication may amount to a hearing if

there is an opportunity to present facts and jurisdictional


                               - 6 -
arguments. . . .   [A]n opportunity to fairly and fully present

facts and arguments on the jurisdictional issues . . . may be

done through a hearing or, if appropriate, by affidavit or

memorandum."

     Here, the trial court considered, as directed by the

statute, whether the Washington court could exercise

jurisdiction and noted that court's determination of August 9,

2001, that it could do so.   The trial court cited the

determination of the Washington court that it had personal

jurisdiction over mother in divorce proceedings pending in

Washington and that the divorce proceedings required it to

determine custody of the parties' children.     Further, it was

undisputed that the children had resided with father in

Washington for over a year prior to entry of the August 23, 2001

order.   It also was undisputed on the record properly before us

on appeal that the children had been continuous residents of the

State of Washington prior to that time, as well, "[e]xcept for

the period of time that [mother] took the children and left the

State of Washington" and that the bulk of the children's

extended family, on both mother's and father's sides, resided

there, as well.    Finally, the evidence established that the

Washington court was at least somewhat familiar with the facts

and issues in the custody dispute.      The divorce proceeding

pending in the Pierce County Superior Court also required a

resolution of all child custody issues, and on August 9, 2001,

                                - 7 -
that court had issued a restraining order prohibiting anyone

from removing the parties' children from Washington.   The trial

court also indicated that it would forward to Washington both

DSS's study of mother's home and a report from the guardian ad

litem appointed in the trial court proceedings.

     Thus, the evidence in the record on appeal established that

a custody proceeding was pending in Washington when the trial

court found a transfer of jurisdiction appropriate and that the

additional evidence in the record, viewed in the light most

favorable to father, supported the trial court's finding that

Pierce County Superior Court was "a more appropriate forum"

under Code § 20-146.18 for litigation of the custody dispute.

In light of this evidence, the mere fact that the trial court

may have been "justified" in retaining jurisdiction does not

convert its decision, instead, to relinquish jurisdiction into

an abuse of discretion.

     For these reasons, we affirm the trial court's order

relinquishing jurisdiction.

                                                         Affirmed.




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