Preview:

COURT OF APPEALS OF VIRGINIA Present: Judges Annunziata, Felton and McClanahan Argued at Alexandria, Virginia GREGORY WILLIAM SULLIVAN v. Record No. 0701-03-4 OPINION BY JUDGE ROSEMARIE ANNUNZIATA APRIL 13, 2004

KAREN ANN JONES, F/K/A KAREN ANN KNICK SULLIVAN FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Kathleen H. MacKay, Judge Richard M. Wexell (Lawrence D. Diehl; Richard M. Wexell & Associates, on brief), for appellant. Alan B. Plevy (Anna B. Marshall; Smolen Plevy, on brief), for appellee. Gregory William Sullivan (father) appeals from an order allowing Karen Ann Jones (mother) to remain in South Carolina with their daughter, Kylie. Mother, who had primary physical custody of Kylie since her divorce from father, moved from Northern Virginia to South Carolina after the trial court permitted her to relocate by order dated November 30, 2001. Father appealed the November 30, 2001 order, and we reversed it on August 27, 2002, in Sullivan v. Knick, 38 Va. App. 773, 569 S.E.2d 430 (2002) (hereinafter "Sullivan I"). After our decision in Sullivan I, mother again petitioned the trial court for permission to stay in South Carolina and to modify the court's order granting father visitation rights. Father cross-petitioned the court for primary physical custody of the child. Upon a hearing ore tenus, the trial court entered an order granting mother's petition, from which father now appeals. Finding no error in the trial court's decision, we affirm.

I. Background The parents in this case were before the Court in Sullivan I. Because many of the facts in Sullivan I are pertinent to the disposition of the instant case, we recite them below. The parents lived in Northern Virginia while married. Kylie was born during the parents' separation on July 13, 1998. Sullivan I, 38 Va. App. at 776, 568 S.E.2d at 432. Under a settlement agreement incorporated into the final decree of divorce on May 24, 1999, mother was granted primary physical custody of Kylie. Id. Father petitioned the trial court on January 9, 2001, for expanded visitation time with Kylie following his remarriage and his acquisition of a residence closer to his former wife's home. Id. at 776-77, 568 S.E.2d at 432. The trial court granted father's request on June 29, 2001, and significantly expanded his periods of visitation with Kylie. Id. His visitation "included alternating weekends, alternating Thursday evenings, extended periods during the holidays and each summer, and an additional `uninterrupted week' each year." Id. at 777 n.2, 568 S.E.2d at 432 n.2. Father married Lynn Sullivan in 2000, and mother married Steven Jones in 2001. Following her marriage to Steven Jones, mother petitioned the court to allow her to relocate to South Carolina with her new husband. By order dated November 30, 2001, the trial court allowed mother to move to South Carolina. Id. at 781, 568 S.E.2d at 434. The trial court also revised father's visitation schedule, providing him with extended but less frequent contacts with Kylie. Id. Mother subsequently moved to South Carolina, and she still resides there today. Father appealed the trial court's November 30, 2001 order. On August 27, 2002, we reversed the trial court's order allowing relocation. We found that the evidence at the trial court established that the move was solely in mother's best interests and that the move "would disrupt the positive involvement and influence of father in Kylie's life, a result at odds with her best interests." Id. at 784-85, 568 S.E.2d at 436. We reversed and -2-

remanded the case "for further proceedings consistent with this opinion." Id. at 785, 568 S.E.2d at 436. Mother did not seek a rehearing by the panel or an en banc review. Subsequent to our decision in Sullivan I, father filed a motion on September 24, 2002, requesting that the court enter an order consistent with our ruling. Mother filed a petition on September 25, 2002, asking the court to modify the June 29, 2001 order, which granted substantial visitation rights to the father, and to allow Kylie to remain in South Carolina. The court held a hearing on November 7, 2002, to determine the appropriate action on remand. In that hearing, father argued that awarding him primary physical custody of Kylie was the only way to implement this Court's ruling in Sullivan I in the event mother refused to return to Northern Virginia with the child. The trial court entered an order on November 22, 2002, annulling its previous order allowing relocation, requiring that Kylie be returned to Northern Virginia, and, in the event that mother refused to comply with the court's order, ordering Kylie be placed in the primary physical custody of her father. At father's request, the trial court delayed implementation of its order until January 1, 2003, and it gave the parents leave to "petition the court for a full hearing on any issue that they think is important given this ruling requiring the return of the child." On December 6, 2002, father filed a petition seeking primary physical custody of Kylie. He also filed a demurrer and a plea in bar to mother's September 25, 2002 petition on the ground that the issues she sought to litigate were barred by this Court's decision in Sullivan I. The trial court overruled father's demurrer, denied his plea in bar on December 20, 2002, and set a hearing to determine the merits of mother's motion to modify and father's petition for a change in custody. That hearing was held January 6-7, 2003, some fourteen months after Kylie's relocation.

-3-

At the hearing on the parties' petitions, mother testified as to Kylie's life in South Carolina, including Kylie's attachment to her extended family, her involvement in church, her level of happiness, and her enrollment in preschool and extracurricular activities. Father testified that his less frequent contact with Kylie strained their relationship and that the long trips to South Carolina were difficult for him and his wife. He further explained that he had made arrangements for Kylie to be placed in a day-care facility in Northern Virginia should the court award him primary physical custody of the child. Finally, he stated that he believed it would be in Kylie's best interests to be placed in his custody because she benefited from contact with him. Upon completion of the hearing, the trial court determined it was in Kylie's best interests to remain in the primary physical custody of her mother in South Carolina. The trial court's decision was memorialized in an order entered February 24, 2003, which also expanded father's visitation rights. Father appeals the trial court's decision, arguing that it erred in denying his demurrer and plea in bar to wife's September 25, 2002 petition, that it failed to follow this Court's decision in Sullivan I, that it erred in conducting an extended evidentiary hearing on January 6-7, 2003, that it erred in allowing Kylie's relocation, and that it erroneously denied his petition for primary physical custody of Kylie. II. Trial Court Did Not Err in Denying Father's Plea in Bar and Demurrer Father contends that the trial court erred in denying his demurrer and plea in bar to mother's September 25, 2002 motion to modify. In his plea in bar, father argued that, under Sullivan I, Kylie's relocation was res judicata and was barred from further consideration. In his demurrer, father similarly argued that, because the issue of Kylie's relocation had been decided in Sullivan I, mother's motion did not state facts upon which the court could lawfully conclude

-4-

that a change in circumstances had occurred. We find that the trial court did not err in denying father's plea in bar and in overruling his demurrer. A. Standard of Review The standards of review for a defensive plea in bar and a demurrer are substantially similar. The defensive plea in bar shortens the litigation by reducing it to a distinct issue of fact which, if proven, creates a bar to the plaintiff's right of recovery. The moving party carries the burden of proof on that issue of fact. See Campbell v. Johnson, 203 Va. 43, 47, 122 S.E.2d 907, 909 (1961). Where no evidence is taken in support of the plea, the trial court, and the appellate court upon review, must rely solely upon the pleadings in resolving the issue presented. See Weichert Co. of Virginia, Inc. v. First Commercial Bank, 246 Va. 108, 109, 431 S.E.2d 308, 309 (1993). When considering the pleadings, "the facts stated in the plaintiffs' motion for judgment [are] deemed true." Glascock v. Laserna, 247 Va. 108, 109, 439 S.E.2d 380, 380 (1994). Tomlin v. McKenzie, 251 Va. 478, 480, 468 S.E.2d 882, 884 (1996). Similarly, upon reviewing a demurrer, the court will accept the facts alleged in the pleading as true to determine the legal sufficiency of the claim. Fun v. Virginia Military Institute, 245 Va. 249, 252, 427 S.E.2d 181, 183 (1993). If the facts, taken as true, allege a cause of action cognizable in Virginia and upon which relief can be granted, the demurrer should be denied. See Burns v. Board of Supervisors of Fairfax County, 218 Va. 625, 627, 238 S.E.2d 823, 825 (1977). B. Father's Plea in Bar and Demurrer Father based his plea in bar and demurrer on res judicata principles. However, allowing reconsideration of the child's best interests upon an allegation of a substantial change in circumstances is meant to avoid the bar that would be otherwise imposed by res judicata. "The purpose of the changed circumstances requirement is to avoid the bar on relitigation that would otherwise be imposed by res judicata." Parish v. Spaulding, 26 Va. App. 566, 573, 496 S.E.2d -5-

91, 94 (1998), aff'd, 257 Va. 357, 513 S.E.2d 391 (1999); see also Code

Download 0701034.pdf

Virginia Law