                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, McCullough and Senior Judge Annunziata
Argued at Alexandria, Virginia


JOSEPH P. CRAVEN
                                                                     MEMORANDUM OPINION * BY
v.      Record No. 1023-11-4                                           JUDGE ROBERT P. FRANK
                                                                          JANUARY 10, 2012
DEENA S. WILLIAMSON


                       FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                   David S. Schell, Judge

                  Melinda L. VanLowe (Greenspun Shapiro, P.C., on briefs), for
                  appellant.

                  James Ray Cottrell (Christopher Wm. Schinstock; Cottrell, Fletcher,
                  Schinstock, Bartol & Cottrell, on brief), for appellee.


        Joseph P. Craven, appellant/father, appeals a visitation order entered April 25, 2011. On

appeal, he contends the trial court erred in denying him visitation for the month of August, in failing

to provide a legal or factual basis for its decision, and in failing to grant his motion for clarification.

For the reasons stated, we affirm the trial court.

                                           BACKGROUND1

        On March 31, 2009, father and Deena S. Williamson, appellee/mother, entered into a

“Parenting Agreement” setting forth custody and visitation, including a detailed visitation schedule


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
           Mother, in her brief, asks that the appeal be dismissed under Rule 5A:8(b)(4)(ii) for
failure “to ensure the record contains transcripts . . . necessary to permit resolution of appellate
issues . . . .” However, the trial court’s final decree dated April 25, 2011 states, “the Court
having made detailed findings from the bench on March 14, 2011 concerning the child custody
factors set forth in Virginia Code § 20-124.3, said findings attached hereto as Exhibit A and
incorporated herein in haec verba . . . .” Because the rulings from the bench, being incorporated
by order, provide sufficient facts to address the assignments of error, we will not dismiss the
appeal.
for their four children. However, the parties could not decide on a summer visitation schedule, with

that issue to be submitted to the circuit court if no decision could be reached by a date certain.

        The parties were divorced by final decree entered November 18, 2009, which incorporated

by reference the Parenting Agreement.

        On September 22, 2010, mother filed a twelve-page petition for change of custody and

visitation, praying for sole custody of the children and supervised visitation for father. After a

four-day hearing, the trial court established a visitation schedule and explained the basis of his

decision by addressing each of the ten factors of Code § 20-124.3. Of particular importance are

factors two, three, four, and nine.2

        Under factor two, age, physical and mental conditions of each parent, the trial court

indicated it considered the anger father exhibits towards the children.

        As to factor three, relationship between each parent and child, the trial court found that

generally father has a good relationship with all of the children, except K., who refuses to visit with

father. There is some evidence the children are uncomfortable with father when he raises his voice

and gets angry. The trial court indicated father’s weakest area in relating to the children is his

emotional responses to the children.

        The trial court referred to an incident in July 2010, where one of the children said “my father

stomped on me” or “my father stepped on me when he was angry,” requiring intervention by Child

Protective Services. Father’s visitation was terminated for a period of time.3


        2
         Father contends when analyzing factors two, three, four, and nine the court made no
finding father abused the children.
        3
         While mother recites in detail as to the injury and Child Protective Services
intervention, none of those recitations are in the appellate record. Mother refers to the trial
transcript, but gives no page references. Mother has the responsibility to provide this Court with
an adequate record of the trial proceedings to enable us to reasonably understand her position
and the underlying facts upon which her contention is based. Buchanan v. Buchanan, 14
Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). An appellate court does not have the
                                                 -2-
        The court further discussed each parent’s ability to meet the emotional, intellectual, and

physical needs of the children, noting that father’s ability “breaks down when it has to interface with

the mother’s.” The trial court then addressed factor four, the needs of the children and their other

important relationships. The trial court opined it is not in K.’s best interest, at this time, to have a

relationship with father, recommending therapy for her.

        As to factor nine, family abuse, the court considered that there was “some testimony . . . of

the father losing his temper and raising his voice.” However, evidence also indicated father had

been with the children without incident. 4

        The trial court found a material change in circumstances, i.e., that Child Protective Services

determined that father abused one of the children, based upon statements of the children that father

stepped on them. One child was seriously hurt while in the care of the father and as a result of that

incident, the children are afraid of him. The court ordered father into anger management

counseling.

        The court ordered summer visitation as follows:

                In the summer: the father will exercise four weeks in the summer,
                and it’ll be broken down into four one-week periods, beginning the
                second Monday in June, the fourth Monday in June, the second
                Monday of July, and the fourth Monday in July. And the visitation
                will run from 9:00 a.m., Monday, to 6:00 p.m., Sunday. This
                visitation provision overrides any other provisions of visitation that
                you may have in the agreement.

        After the court announced the summer schedule, father’s counsel asked that the court

repeat the ruling. The court replied, “Four weeks: second Monday in June, fourth Monday in

June, second Monday in July and fourth Monday in July.” The court also confirmed mother “has



responsibility of scouring the record to understand the facts necessary to support a party’s legal
position. Id.
        4
         We note that generally, the trial court found father to be concerned for the children and
is very committed to them.
                                                -3-
them all other times in the summer.” The court entered a written decree on April 25, 2011

confirming its oral pronouncement, which, inter alia, awarded four weeks visitation to father

without any mention of the specific number of weeks to mother.

        Father filed a “Motion for Clarification” on April 15, 2011, asking, inter alia, the trial

court to clarify how the summer would be divided between the parents. Father claimed the

court’s earlier statement that “it should be four weeks with the father and I think it’ll be five to

five and a half weeks for the mother” is inconsistent with the actual ruling, giving mother eight

to nine weeks. 5 At the hearing on the motion, the trial court characterized the motion as one for

reconsideration, not for clarification, and there was nothing to reconsider. The court denied the

motion, making it clear that it had awarded father four weeks summer visitation, and

characterizing his earlier statement that mother would have five to five and a half weeks as

“dicta.” 6

        This appeal follows.

                                             ANALYSIS

                                              Visitation

        Appellant contends the trial court abused its discretion in denying him visitation for the

month of August. He argues that the trial court’s considerations and findings of facts pursuant to




        5
         Settled principles provide that “[a] court speaks through its orders and those orders are
presumed to accurately reflect what transpired.” McBride v. Commonwealth, 24 Va. App. 30,
35, 480 S.E.2d 126, 128 (1997); see also Stamper v. Commonwealth, 220 Va. 260, 280-81, 257
S.E.2d 808, 822 (1979) (holding that when a court’s statements from the bench conflict with its
written order, the order controls). Therefore, any inconsistency perceived between the oral
pronouncement and the written order is resolved in favor of the written order.
        6
          Dicta generally refers to “that portion of an opinion ‘not essential’ to the disposition in
the case.” Newman v. Newman, 42 Va. App. 557, 565, 593 S.E.2d 533, 537 (2004) (en banc)
(quoting Cent. Green Co. v. United States, 531 U.S. 425, 431 (2001)). While not technically
dicta, the trial court made it clear that statement was not part of its ruling.
                                                  -4-
Code § 20-124.3 do not support a conclusion that appellant should have no visitation with his

children for an entire month each year.

       Code § 20-124.3 lists ten factors a trial court must consider when deciding the best

interests of a child for determining custody and visitation of a child. Artis v. Jones, 52 Va. App.

356, 363, 663 S.E.2d 521, 524 (2008). The statute concludes by directing that the trial court

“communicate to the parties the basis of [its] decision either orally or in writing.” This Court has

interpreted this statute as “requir[ing] the trial court to identify the fundamental, predominating

reason or reasons underlying its decision.” Kane v. Szymczak, 41 Va. App. 365, 372-73, 585

S.E.2d 349, 353 (2003). “While communicating the ‘basis’ of the decision does not rise to the

level of providing comprehensive findings of fact and conclusions of law, it does mean that the

trial court must provide more to the parties than boilerplate language or a perfunctory statement

that the statutory factors have been considered.” Lanzalotti v. Lanzalotti, 41 Va. App. 550, 555,

586 S.E.2d 881, 883 (2003). A court “‘is not required to quantify or elaborate exactly what

weight or consideration it has given to each of the statutory factors.’” Sargent v. Sargent, 20

Va. App. 694, 702, 460 S.E.2d 596, 599 (1995) (quoting Woolley v. Woolley, 3 Va. App. 337,

345, 349 S.E.2d 422, 426 (1986)). “As long as evidence in the record supports the trial court’s

ruling and the trial court has not abused its discretion, its ruling must be affirmed on appeal.” Id.

       Where the court hears evidence ore tenus, its findings are entitled to the weight of a jury

verdict, and they will not be disturbed on appeal unless plainly wrong or without evidence to

support them. Rice v. Rice, 49 Va. App. 192, 201, 638 S.E.2d 702, 707 (2006). Moreover, it is

well established that “[o]n appeal, we view the evidence in the light most favorable to the

prevailing party, granting that party the benefit of any reasonable inferences.” Denise v. Tencer,

46 Va. App. 372, 397, 617 S.E.2d 413, 426 (2005).




                                                -5-
        Here, the trial court expressly and painstakingly addressed each of the factors contained

in Code § 20-124.3 in awarding visitation. Of particular consideration, the court elaborated on

the importance of factors two, three, four, and nine, and determined that it was in the children’s

best interests for father to have four weeks visitation with them during the summer and to have

no contact with them in August. While the father may be dissatisfied with the court’s decision,

he has not demonstrated how the court abused its discretion in fashioning its visitation schedule.

                                       Motion for Clarification

        Appellant argues the trial court erred in denying his motion for clarification. He contends

that because the trial court made an inconsistent ruling, clarification was warranted. We disagree

with the father.

        In denying the motion, the trial court stated, “I have reviewed both of those pleadings

carefully. In my judgment, the motion for clarification is a motion for reconsideration with a

different title.” The trial court could not have been clearer in stating its ruling that the father is to

receive four weeks of visitation during the summer. The court repeated its ruling twice in

response to father’s questions during the March 14 hearing. The court again explicitly stated at

the March 22 hearing that father is to receive four weeks of visitation during the summer. Thus,

the court’s ruling was unambiguous and did not need clarification. The court properly denied

father’s motion.

                                      Attorney’s Fees on Appeal

        Mother asks for attorney’s fees and costs incurred in connection with this appeal.

                The rationale for the appellate court being the proper forum to
                determine the propriety of an award of attorney’s fees for efforts
                expended on appeal is clear. The appellate court has the
                opportunity to view the record in its entirety and determine
                whether the appeal is frivolous or whether other reasons exist for
                requiring additional payment.

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).
                                                  -6-
       Having reviewed and considered the entire record in this case, we find husband’s appeal

is frivolous and without merit. We hold that mother is entitled to reasonable attorney’s fees and

costs. Accordingly, we remand and direct the trial court to award mother the reasonable

attorney’ s fees she incurred in defending this appeal, as well as any attorney’s fees incurred by

her on remand to determine such fees. See Miller v. Cox, 44 Va. App. 674, 688, 607 S.E.2d 126,

133 (2005).

                                          CONCLUSION

       For the reasons stated herein, the decision of the trial court is affirmed. We remand to the

trial court for an award of attorney’s fees.

                                                                          Affirmed and remanded.




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