                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Decker and AtLee
UNPUBLISHED


              Argued at Richmond, Virginia


              CHRISTOPHER T. TAKACS
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1021-15-2                                   JUDGE RANDOLPH A. BEALES
                                                                                  MARCH 22, 2016
              HEATHER L. TAKACS


                                  FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
                                                Paul W. Cella, Judge

                               James F. Andrews (Johnson and Andrews, P.C., on brief), for
                               appellant.

                               No brief or argument for appellee.


                     On May 29, 2015, the circuit court entered a final decree of divorce between Christopher T.

              Takacs (father) and Heather L. Takacs (mother). On appeal, father argues that the circuit court

              “erred in approving [mother’s] relocation of the parties’ children to Ohio” and in refusing to order

              her to return them to Virginia. Father also challenges the circuit court’s decision to award mother

              $13,000 in attorney’s fees and costs in the final decree of divorce. For the following reasons, we

              reverse and remand the matter to the circuit court for further proceedings consistent with this

              opinion.

                                                        I. BACKGROUND

                     Under settled principles of appellate review, we view the evidence in the light most

              favorable to mother, as the party prevailing below, Chretien v. Chretien, 53 Va. App. 200, 202, 670

              S.E.2d 45, 46 (2008), and we grant to mother “all reasonable inferences fairly deducible therefrom,”


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999). So viewed, father and

mother were married on March 29, 2004. The parties had two children (the children) during the

marriage, born in June 2004 and August 2007. On August 28, 2011, father was badly injured and

hospitalized following a serious car accident. While father’s health improved over time, he did

suffer a traumatic brain injury. At the time of the final hearing, father was taking medication for

seizures and suffered from impaired vision in his left eye.

       On December 18, 2013, wife filed a divorce complaint in the circuit court. The parties

officially separated on December 27, 2013. During the separation, the parties agreed that mother

would have primary physical custody of the children and that father would have visitation rights.

At the time of the separation, both parties resided in or around Petersburg, Virginia. The circuit

court held a pendente lite hearing on March 28, 2014 and subsequently entered an order on May 23,

2014, granting mother temporary physical custody of the children and awarding father supervised

day visits in the presence of his parents.1

       During the marriage, mother worked “as needed” at the John Randolph Medical Center in

Hopewell as an x-ray technician. At this position, mother earned $23 or $26 per hour – for day

and evening shifts respectively. In the months leading up to the final hearing, mother’s employer

began to reduce her hours of employment to the point where mother was only able to work about

five days per month. Mother began to look for full-time work in order to meet the financial

needs of herself and the children. Unable to find a full-time job in Virginia, mother sought out

and received two job offers in Ohio. Mother eventually accepted a full-time position making $23



       1
          Code § 20-124.5 requires the trial court, as a condition for any custody or visitation
order, to include a requirement “that thirty days’ advance written notice be given to the court and
the other party by any party intending to relocate.” While the temporary custody and visitation
order did not contain this statutorily required language, father does not assign error on appeal to
the circuit court’s entry of that order.
                                                 -2-
per hour as a mammography and x-ray technician at a private imaging center in Springfield,

Ohio. On February 8, 2015, mother moved to Ohio along with the children. Mother relocated

the children out of state without notifying father or the court or seeking permission to do so from

him or from the court.

       At the final hearing four days later on February 12, 2015, the circuit court found that

mother was the primary caregiver for the children and that father was “not in a position to

assume the physical custody of the children” due to his medical condition. Based on those

findings, the circuit court concluded that the best interests of the children would be served by

awarding primary physical custody to mother in Ohio. The circuit court awarded the parties joint

legal custody of the minor children, awarded mother primary physical custody, and decreed that

father shall have reasonable and liberal visitation with the children “as agreed by the parties.”

The court also ordered father to pay $13,000 in attorney’s fees and costs to mother within thirty

days of the entry of the final decree.2 A final decree of divorce was entered on May 29, 2015 on

the grounds that the parties had lived separate and apart without any cohabitation and without

interruption for more than one year.

                                           II. ANALYSIS

                                A. RELOCATION OF THE CHILDREN

       Father argues that the circuit court erred in approving mother’s relocation of the children

from Virginia to Ohio. In Judd v. Judd, 53 Va. App. 578, 673 S.E.2d 913 (2009), this Court held

that a trial court may consider whether to permit relocation during the final hearing for divorce,

equitable distribution, and child custody. Id. at 585, 673 S.E.2d at 916-17. “[I]n a court’s

decision as to the propriety of relocating the children, ‘the welfare of the children is of primary


       2
         Mother accumulated $26,404.63 in attorney’s fees and costs during the suit for divorce.
The circuit court ordered father to pay approximately half of mother’s costs from this litigation.
                                               -3-
and paramount importance.’” Parish v. Spaulding, 26 Va. App. 566, 572, 496 S.E.2d 91, 94

(1998) (quoting Simmons v. Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199 (1986)), aff’d,

257 Va. 357, 513 S.E.2d 391 (1999); see Code § 20-124.3 (delineating the factors to be weighed

in assessing the best interests of children in custody and visitation matters); see also Cloutier v.

Queen, 35 Va. App. 413, 427, 430, 545 S.E.2d 574, 581, 582-83 (2001) (holding that the Code

§ 20-124.3 factors govern whether relocation is in a child’s best interests and that the interests to

be assessed are solely the child’s and do not include the custodial parent’s interests).

       “[T]he added difficulty in maintaining a beneficial relationship between a child and a

non-custodial parent should not be the sole basis for restricting a custodial parent’s residence

except where the benefits of the relationship cannot be substantially maintained if the child is

moved away from the non-custodial parent.” Scinaldi v. Scinaldi, 2 Va. App. 571, 575, 347

S.E.2d 149, 151 (1986). The parent who wants to relocate the children bears the burden of

proving that the relocation will not substantially impair the relationship between the children and

the non-moving parent. Stockdale v. Stockdale, 33 Va. App. 179, 184, 532 S.E.2d 332, 335

(2000). The trial court’s decision regarding the relocation of a custodial parent “is a matter of

discretion,” and on appeal, we will not reverse that decision “unless plainly wrong or without

evidence to support it.” Sullivan v. Knick, 38 Va. App. 773, 783, 568 S.E.2d 430, 435 (2002)

(quoting Bostick v. Bostick-Bennett, 23 Va. App. 527, 533, 478 S.E.2d 319, 322 (1996)).

       The circuit court found that relocating the children to Ohio under the primary physical

custody of mother “would be in the best interest of the children.” In support of its conclusion,

the circuit court found that mother was the primary caregiver for the children during the marriage

and that father was “physically unable to care [for the children].” While actually never stated by

the circuit court, the court had to have implicitly found that relocation would not substantially



                                                 -4-
impair the relationship between the children and father.3 We hold the evidence, even when

viewed in the light most favorable to mother, fails to support the circuit court’s ruling.

       The circuit court record contains numerous facts that unmistakably demonstrate that the

court’s approval of mother’s relocation to Ohio without a comprehensive, detailed court-ordered

visitation schedule was an abuse of discretion. To begin, it appears from the record that the

circuit court relied on mother’s testimony and representations from her counsel that “the parties

would be better off to try to work something out between themselves.”4 In accepting mother’s

position on visitation, the circuit court did not create a visitation schedule dictating a minimum

amount of visitation for father, did not establish where such visitation would take place, and did

not state which party was responsible for transporting the children and at whose expense.

Seemingly, the court relied on mother’s testimony that she was “willing to do whatever it takes;

phone calls, visits” to keep the relationship between father and the children intact. Mother also

testified that her new residence in Ohio was “not that far away” – despite also testifying that

travel between her home in Ohio and father’s residence in Virginia requires an eight-hour drive.

       Clearly, the circuit court’s acceptance of mother’s original purported agreement at the

February 12, 2015 hearing to considerable visitation opportunities for father does not amount to

an abuse of discretion by itself. In this particular case, however, the record contains evidence

that the circuit court became aware prior to the entry of the final decree that mother’s testimony


       3
         The letter opinions of the circuit court dated March 10, 2015 and April 4, 2015 do not
contain any findings on the issue of whether the relationship between the children and father
would be substantially impaired by relocation of the children to Ohio.
       4
          While each party’s closing argument was not included in the appendix, it appears from
the record that mother’s trial counsel suggested that the circuit court award father “reasonable
visitation as the parties agree.” In his closing argument, father’s counsel warned the circuit court
of the danger of leaving visitation to be set by the agreement of the parties. Specifically, he
argued that the court should set a fixed visitation schedule and that it would “have to be
specific.”
                                                  -5-
at trial that she was “willing to do whatever it takes” was either false or unworthy of belief.

After the final hearing, father filed his objections to the circuit court’s findings as an attachment

to the final decree for divorce before it was entered. Those objections included emails that

clearly demonstrate mother’s total unwillingness to “do whatever it takes” to allow the children

to maintain their relationship with father. In those emails, mother’s trial counsel represented to

father’s counsel that mother would only agree to very specific terms for visitation. For example,

by that point, mother asserted that father is “free to visit the children at any time in Ohio, with

reasonable notice to [mother].” Mother also then only agreed to one week of visitation in

Virginia per year. That week-long visitation would occur during the summer – with the children

staying with their paternal grandparents – “so long as they provide transportation.”

       These emails were correspondence between counsel that occurred after the final hearing

and the court’s March 10, 2015 letter opinion – but prior to the entry of the final decree.

Therefore, father’s objections to the proposed final decree provided the circuit court with

evidence of mother’s hollow testimony at trial before the final decree had been signed by the

circuit court. Because the court was aware – prior to the entry of the final decree – that mother

had misrepresented her willingness to preserve the relationship between the children and their

father after the court had originally given approval in its letter opinion to mother’s relocation of

the children to Ohio, we find that the court’s failure to set forth a comprehensive visitation

schedule while the matter was still before the circuit court was an abuse of discretion.

       Numerous other facts in the record support the conclusion that the failure to set a specific

visitation schedule substantially impaired the relationship between the children and father. The

evidence before the circuit court was that the parties separated on December 27, 2013. During

the separation, both parties – who resided in or around Petersburg – agreed that mother would

have primary physical custody of the children and that father would have supervised visitation.
                                                 -6-
While the parties remained separated, father testified that he saw his children approximately once

per week, or “50 or 55 times” per year. The evidence is undisputed at trial that mother moved to

Ohio with the children without notifying the circuit court just four days prior to the final

hearing.5 The evidence was also clear that father received no advance notice of mother’s

removal of the children out of state, nor did he ever agree that mother could take the children to

Ohio. Thus, the court’s approval of mother’s surreptitious relocation of the children out of state

on the eve of trial and the court’s decision to allow the parties to set their own visitation schedule

thereafter left father at the mercy of mother regarding his ability to see his own children.

       In addition, while mother testified that she has family support in Ohio, a review of all the

evidence demonstrated that the majority of the children’s closest relatives (parents and

grandparents) reside in Virginia.6 Furthermore, the evidence before the circuit court

demonstrated that father was badly injured in a severe car accident in August 2011, which

required an extended stay in the hospital. While the testimony was undisputed that father’s

health has improved over time, his involvement in the accident resulted in a traumatic brain

injury. At the time of the final hearing, father was taking medication for seizures and suffered

from impaired vision from an injury to the optic nerve of his left eye. Despite father’s medical

condition, mother’s conduct after the final hearing demonstrated that she was unwilling to make

any effort to substantially maintain the relationship between the children and their father. In

summary, the totality of the evidence clearly shows that the circuit court’s approval of mother’s


       5
        It also appears from the record that mother cancelled father’s agreed visitation on
Saturday, February 7, 2015. Mother testified at the final hearing that she moved the children to
Ohio the following day. In his opening brief, father asserts that he has not seen his children since
February 1, 2015.
       6
         The evidence before the circuit court was that father, both paternal grandparents, and
the maternal grandmother and her husband all live in Virginia. Mother’s father and stepmother,
her stepbrother and his wife, her brother and his wife, and her stepsister live in Ohio.
                                                -7-
relocation of the children to Ohio, along with its conclusion that the parties should work out their

own visitation, was plainly wrong because the visitation that resulted from the move

substantially impairs the relationship between the children and their father.

       For all of these reasons, we hold that the circuit court abused its discretion, we reverse the

circuit court’s ruling on relocation and visitation, and we remand the matter to the circuit court

for reconsideration. On remand in the circuit court, the court must determine if mother has met

her burden of demonstrating that the relocation will not substantially impair the relationship

between the children and father, which the circuit court never specifically addressed. Stockdale,

33 Va. App. at 184, 532 S.E.2d at 335. If the circuit court concludes upon remand that it is in the

best interests of the children to be relocated to Ohio, the court must order a visitation schedule

that ensures that the relationship between father and the minor children is not substantially

impaired – as required by Virginia case law governing relocation. See Judd, 53 Va. App. at 590,

673 S.E.2d at 918 (affirming trial court’s approval of mother’s relocation where the trial court

established a detailed visitation schedule for the children and ordered the moving parent to be

responsible for the cost of transporting the children to and from Virginia); Petry v. Petry, 41

Va. App. 782, 788, 589 S.E.2d 458, 461 (2003) (affirming the trial court’s order for relocation

where the trial judge granted the non-moving parent visitation one weekend a month in

Lynchburg and made the moving parent responsible for transportation from New York to

Lynchburg).

                                 B. ATTORNEY’S FEES AND COSTS

       Father argues that the circuit court’s award of attorney’s fees and costs to mother was

unreasonable and not supported by the evidence. An award of attorney’s fees and costs “is a

matter for the trial court’s sound discretion after considering the circumstances and equities of

the entire case.” Artis v. Artis, 4 Va. App. 132, 138, 354 S.E.2d 812, 815 (1987); see Joynes v.
                                                -8-
Payne, 36 Va. App. 401, 429, 551 S.E.2d 10, 24 (2001) (“The key to a proper award of counsel

fees is reasonableness under all the circumstances.”).

       Even viewing the evidence in the light most favorable to mother, as we must since she

was the prevailing party below, the totality of the evidence in the record demonstrates that the

award of $13,000 in attorney’s fees and costs to be paid in thirty days to mother was

unreasonable under the facts and circumstances of this case. From the evidence at trial, the court

determined that father’s income was $42,425 per year and that mother’s income was $3,833 per

month or approximately $45,996 per year. However, in the same letter opinion in which the

circuit court awarded mother a substantial sum of attorney’s fees and costs, it also made a

finding that father did not have the ability to pay spousal support. Logically, if the circuit court

found appellant had no ability to pay monthly spousal support, father necessarily had no ability

to pay wife considerably more money in attorney’s fees. Furthermore, by requiring payment of

those fees and costs within thirty days, the circuit court effectively and unreasonably ordered

father – whom the court had already concluded had no ability to pay spousal support – to pay

approximately 30% of his annual income to mother in one month’s time. Thus, we find that the

circuit court’s order for father to pay half of mother’s attorney’s fees and costs within thirty days

of the entry of the final decree was unreasonable and not based on father’s actual ability to pay.

       Finally, the circuit court, in its March 10, 2015 letter opinion, appears to have awarded

attorney’s fees because mother was “entitled to do reasonable discovery and litigation” regarding

the ownership of the marital residence and the restaurant where father worked. The circuit court

made this finding despite simultaneously concluding that mother’s “ignorance of the family’s

business and financial affairs” was “somewhat unusual.” The court also found that mother

“continued to litigate this matter aggressively past the point where it had become apparent that

any further attempt to prove that there was a marital interest in [the house] or [the restaurant] was
                                                -9-
futile.” When this matter was still before the circuit court, father argued that mother’s use of

discovery was unreasonable because she could easily obtain independently the information she

sought regarding the ownership of the marital residence and the restaurant – without the need for

costly discovery. In light of these facts, we must find that the circuit court’s award of even half

of mother’s attorney’s fees and costs was not supported by the evidence in the record.

       In summary, the circuit court’s decision to assess attorney’s fees and costs against father,

especially given the court’s statements about mother’s discovery tactics and “ignorance of the

family’s business and financial affairs,” amounted to the adoption of a “‘loser pays’ rationale

that has long been generally rejected in Virginia.” See Mayer v. Corso-Mayer, 62 Va. App. 713,

734-35, 753 S.E.2d 263, 273 (2014). Therefore, the circuit court’s award of attorney’s fees and

costs must be reversed because it was not reasonable “under all of the circumstances revealed by

the record.” McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). Upon

remand, the circuit court is ordered to reconsider whether any award of attorney’s fees would be

reasonable under the facts of this case. If the circuit court should decide to award attorney’s fees

and costs to either party, the court shall enter an award for an appropriate amount of attorney’s

fees and costs based on the parties’ actual ability to pay and order that any such fees and costs be

paid on a reasonable schedule.

                                         III. CONCLUSION

       For the foregoing reasons, we reverse the judgment of the circuit court and remand the

matter for proceedings consistent with this opinion.

                                                                           Reversed and remanded.




                                               - 10 -
