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Coe v. Coe

Court of Appeals of Virginia

July 26, 2016

KEVIN COE
v.
SEON HWA COE

         FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Louise M. DiMatteo, Judge

          John Crouch (Crouch & Crouch PLLC, on briefs), for appellant.

          Soyoung Lee (Lee & Meier, PLLC, on briefs), for appellee.

          Present: Judges Humphreys, O'Brien and Malveaux Argued at Richmond, Virginia

          OPINION

          ROBERT J. HUMPHREYS JUDGE

         Kevin Coe ("father") appeals the ruling of the Circuit Court of Arlington County (the "circuit court") returning the parties' child ("J.C.") to the Republic of Korea ("Korea") pursuant to the Hague Convention on Civil Aspects of International Child Abduction ("the Convention") and the award of legal fees, costs, and travel expenses associated with the case to Seon Hwa Coe ("mother"). Father alleges nine assignments of error. However, because many of them are repetitious, we analyze his assignments of error by grouping them into the following five basic issues: 1) whether the circuit court erred in finding Korea to be J.C.'s habitual residence; 2)whether the circuit court erred in finding that father breached mother's right of custody and that his retention of J.C. was therefore "wrongful" within the meaning of the Convention; 3)whether the circuit court erred in finding that father failed to prove by clear and convincing evidence that J.C. has been abused, sexually or otherwise, while in mother's custody in Korea so that returning J.C. to Korea would pose a grave risk as understood within the meaning of Article 13(b) of the Convention; 4) whether the circuit court erred in making an award of fees and costs to mother pursuant to 42 U.S.C. § 11607(b) of the International Child Abduction Remedies Act ("ICARA"); and 5) whether the circuit court erred in entering a final order without providing father an opportunity to object.[1]

         I. Background

         Father and mother were married on June 15, 2004 in Arizona. J.C. was born on June 9, 2007.[2] The family lived in Arizona until 2011, when father deployed to Afghanistan as a civilian military contractor. Deciding not to remain in Arizona during father's deployment, mother moved to Korea with J.C. On March 1, 2012, father filed a Petition for Dissolution of Marriage Without Minor Children in the Superior Court of Arizona, Maricopa County. On November 5, 2012, the Superior Court of Arizona, Maricopa County, entered a divorce decree, but it did not make a child custody determination. As of this writing, a child custody determination has never been made by any court. After returning from Afghanistan, father returned to the United States and settled in Virginia. Mother and J.C. remained in Korea until December 2014. [3]

         On November 30, 2014, father purchased and sent two round-trip airplane tickets to mother in order for mother and J.C. to visit him in Virginia.[4] On December 12, 2014, mother and J.C. arrived in Virginia through Dulles International Airport. Father picked the pair up from the airport and took them to the home of Bonnie Coe ("Bonnie"), father's mother/J.C.'s paternal grandmother, in Stafford, Virginia.

         On the way to Bonnie's home, father told mother that they were stopping at Target to pick up some necessary items. After arriving in the Target parking lot, father told mother to go inside the store while he stayed in the car with J.C., who was asleep. Shortly after arriving at Bonnie's home, mother, while unpacking her luggage, discovered that both of J.C.'s passports were missing.[5] Father admitted to taking the passports while mother was inside Target and refused to return them.

         On December 14, 2014, father and his girlfriend took J.C. from Bonnie's home without mother's consent. Father testified that while at a Build-A-Bear store, J.C. refused multiple times to use the restroom and that she urinated on herself during the visit. Father then took J.C. to stay with him and his girlfriend at their apartment in Arlington, Virginia. From this point forward, father denied mother access to J.C. After a couple of weeks, father emailed other to inform her that she had an airplane ticket for her return to Korea.

         Father testified that J.C. expressed to his girlfriend that J.C. had knowledge of oral sex and was being abused in Korea. Further, he testified that J.C. told him that her Korean uncle had touched her private area. Father hired a child psychologist, Theresa Schill ("Schill"), to meet with J.C. During a session with Schill, J.C. played with dolls and made them touch genitalia. Schill testified that J.C.'s behavior "would not be necessarily developmentally [age] appropriate." However, Schill admitted that it was "outside the scope" of her expertise to know if J.C. had been sexually abused. Subsequently, father hired Dr. Stanley E. Samenow ("Dr. Samenow"), a child psychologist, to interview J.C. regarding possible sexual abuse in Korea.

         Procedural History

         On January 27, 2015, the Juvenile and Domestic Relations District Court for Arlington County ("the JDR court") denied mother's emergency petition for return of J.C. to her "country of habitual residence" pursuant to the Convention. The JDR court held that the petition was premature because the parties had planned for J.C. to stay in the United States for six weeks and that six weeks' time period had not yet run. Father filed an emergency petition for custody, but the JDR court denied it for lack of jurisdiction. Both parties appealed to the circuit court.

         On March 12, 2015, the circuit court held its first evidentiary hearing. The circuit court entered an order finding J.C.'s country of habitual residence, within the meaning of the Convention, to be Korea. Additionally, it held that father had "wrongfully removed or retained" J.C. within the meaning of the Convention, as implemented by ICARA. The circuit court was unable to come to a determination regarding the allegation of sexual abuse in Korea. The circuit court appointed a psychological forensic expert, Dr. Samenow, and ordered him to conduct a thorough investigation of the allegations of sexual abuse in Korea in order for the circuit court to determine whether the grave risk exception under Article 13(b) of the Convention applied.[6]

         On April 2, 2015, the circuit court held the second evidentiary hearing for the express and limited purpose of hearing Dr. Samenow's report. Dr. Samenow testified that he did not find any evidence of abuse. On April 27, 2015, the circuit court entered an order accepting Dr. Samenow's testimony and report. The circuit court found J.C.'s habitual residence to be Korea and ordered J.C. to be returned to Korea under the custody of mother. Additionally, it found that father failed to overcome his burden to prove by clear and convincing evidence that J.C. had been abused, sexually or otherwise, while in mother's custody in Korea so that returning J.C. to Korea would pose a grave risk of exposing J.C. to physical or psychological harm within the meaning of Article 13(b) of the Convention.

         Further, the circuit court ordered, pursuant to 42 U.S.C. § 11607(b) (presently 22 U.S.C. § 9007(b)), that father pay a total of $29, 955.37 for necessary expenses incurred by mother during the course of the proceeding. The circuit court found the incurred necessary expenses to be: 1) $26, 668 for legal fees and costs; 2) $800 in interpreter fees; 3) $300 for visitation exchange supervisor fees; and 4) $2, 187.37 in transportation costs related to the return of J.C. Notably, the circuit court added findings by handwritten signed notation to the final order that "[i]t further appearing to the [circuit] court that based upon the evidence presented, there was manipulation, misrepresentation, and fabrication by [father] regarding allegations of sexual abuse, further justifying the decisions herein, including an award of fees and costs." On May 29, 2015, father filed his written objections to the final order.

         II. Analysis

         A. Standard of Review

         "In an action pursuant to ICARA and the Hague Convention, [the appellate court] review[s] the district court's findings of fact for clear error, while its conclusions regarding principles of domestic, foreign, and international law are reviewed by us de novo." Miller v. Miller, 240 F.3d 392, 399 (4th Cir. 2001). "'Clear error' is a term of art derived from Rule 52(a) of the Federal Rules of Civil Procedure, and applies when reviewing questions of fact" in the federal system. Ornelas v. United States, 517 U.S. 690, 694 n.3 (1996). In Virginia, questions of fact are binding on appeal unless "plainly wrong." Quantum Dev. Co. v. Luckett, 242 Va. 159, 161, 409 S.E.2d 121, 122 (1991).

         B. Preservation of Assignments of Error: Rule 5A:18

         Rule 5A:18 makes clear that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling." "A basic principle of appellate review is that, with few exceptions . . . arguments made for the first time on appeal will not be considered." Martin v. Ziherl, 269 Va. 35, 39, 607 S.E.2d 367, 368 (2005). The purpose of the rule "is that the trial judge may be informed of the precise points of objection in the minds of counsel so that it may be advised and rule intelligently." Ross v. Schnieder, 181 Va. 931, 941, 27 S.E.2d 154, 158 (1943). Additionally, "an appellate court's review of the case is limited to the record on appeal." Wilkins v. Commonwealth, 64 Va.App. 711, 717, 771 S.E.2d 705, 708 (2015).

         It is well settled in Virginia that pursuant to Rule 1:1, "final judgments . . . remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer." In Super Fresh Food Mkts. of Va. v. Ruffin, 263 Va. 555, 561 S.E.2d 734 (2002), the Supreme Court of Virginia provided a very clear outline of Rule 1:1. The Court held that "[t]he running of the twenty-one day time period prescribed by Rule 1:1 may be interrupted only by the entry, within the twenty-one day time period, of an order modifying, vacating, or suspending the final judgment order." Id. at 560, 561 S.E.2d at 737. "In the absence of such an express order, the twenty-one day time period is not interrupted, and the case will no longer be under the control of the trial court when the original twenty-one day time period has run." Id. at 562, 561 S.E.2d at 738.

         In the case at bar, father contends he preserved five of his nine assignments of error when he filed his "Respondent's Objections to Final Order."[7] However, when father filed his objections to the final order on May 29, 2015 more than twenty-one days had passed since the final order was entered on April 27, 2015. Therefore, pursuant to Rule 1:1, the circuit court no longer had jurisdiction over the case at the time father filed his objections. Father did not present the circuit court with an opportunity to intelligently rule on ...


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