THE CIRCUIT COURT OF PRINCE EDWARD COUNTY Kimberly S. White,
A. Friedman, II (Kimberley L. Fitzgerald; Sarah J. Conner;
Friedman Law Firm, P.C., on brief), for appellant.
brief or argument for appellees or guardian ad litem.
Present: Judges Beales, Alston and Senior Judge Haley Argued
at Richmond, Virginia
RANDOLPH A. BEALES JUDGE
Lynn Rhodes ("mother") appeals the circuit
court's January 13, 2016 final visitation order. The
circuit court's order modified an Ohio visitation order
that had previously awarded visitation with mother's four
minor children to Delmar and Susan Lang, the children's
paternal grandparents. Mother presents two assignments of
error - both of which assert that the circuit court erred
"by failing to apply Virginia's 'actual
harm' standard on a motion to amend" the paternal
grandparents' visitation with the children. For the
following reasons, we affirm the circuit court.
settled principles of appellate review, we view the evidence
in the light most favorable to the grandparents, as the party
prevailing below, Chretien v. Chretien, 53 Va.App.
200, 202, 670 S.E.2d 45, 46 (2008), and we grant to the Langs
"all reasonable inferences fairly deducible therefrom,
" Anderson v. Anderson, 29 Va.App. 673, 678,
514 S.E.2d 369, 372 (1999). So viewed, mother married Kyle
Lang ("father") on June 1, 2002. Mother and father
had four children together in Ohio during the course of their
marriage. Mother and father divorced on July 20, 2010. Father
later died unexpectedly in a farming accident on May 20,
the divorce but prior to their son's death, the Langs
continued to have weekly contact with the children. After
father's death, however, the relationship between mother
and the Langs began to deteriorate. Eventually, mother sent
the Langs a "No Trespass Letter" dated November 30,
2011. The letter informed the Langs that they were prohibited
from entering the farmhouse property and directed the Langs
not to communicate with mother in any fashion. After she sent
that letter, mother prevented the Langs from having any
visitation with their late son's children. The Langs
eventually filed a complaint on June 11, 2012 in Ohio
requesting visitation with their grandchildren.
Langs' complaint for visitation was heard by a magistrate
in Ohio. The Ohio magistrate appointed a guardian ad
litem to represent the interests of the minor children.
The guardian ad litem recommended that the Langs
have visitation with their grandchildren. The
magistrate's decision was entered as an order on June 6,
2013, and granted the Langs visitation once a month for four
hours in mother's home for the first six months. After
six months, the visits were to take place in the Langs'
home or at a place of their choosing. The order emphasized
that "the primary purpose of the visits is to reconcile
the relationship between Delmar and Susan and the
children." The court also stated that it "trust[ed]
Melanie·to make the proper decision to facilitate
reconciliation." The order specified that visitation may
be increased by agreement of the parties.
appealed the magistrate's decision to the Wayne County
Court of Common Pleas. That court affirmed the
magistrate's decision by an order entered on November 5,
2013. Mother then appealed that order to the Ninth District
Court of Appeals in Ohio. In December 2013 - only a month
after the Ohio trial court's order deciding against her
and during the pendency of her appeal to the Ohio Court of
Appeals, mother relocated the children to Prospect, Virginia.
The Langs continued to reside in Ohio. On September 24, 2014,
the Ninth District Court of Appeals in Ohio affirmed the
visitation orders of the lower courts.
mother's request, the Prince Edward County Juvenile and
Domestic Relations District Court ("the JDR court")
registered the final Ohio visitation order. Mother then filed
a motion to amend the Ohio order on January 5, 2015.
Mother's motion requested the following changes: "No
specific visitation provisions for the grandparents."
The JDR court appointed Elizabeth Taylor Carter as guardian
ad litem for the children. At a June 17, 2015
hearing, the JDR court awarded the Langs visitation rights
with the children. Specifically, the JDR court ordered that
the first scheduled visitation would take place on June 18,
2015 in Virginia. The August 27, 2015 JDR court order also
awarded visitation to the Langs on or around specific
holidays. Pursuant to that order, all subsequent visitations
would take place in Ohio - or in any state through which the
parties traveled to facilitate visitation.
appealed the JDR court order to the circuit court. Prior to
the final hearing in the circuit court on December 15, 2015,
the parties filed memoranda of law on the issue of the proper
legal standard to be applied to mother's motion to amend
the previous visitation order from Ohio. The parties all
agreed that mother's relocation of the children to
Virginia was a material change of circumstances. The Langs
argued that the proper standard requires a showing of a
material change of circumstances such that a change in
visitation would be in the best interests of the children.
Mother asked the circuit court to apply Virginia's
"actual harm" standard, which would require the
grandparents to show that the children would suffer actual
harm if they were denied visitation. The circuit court agreed
with the Langs and applied the material change in
circumstances plus the best interests of the children
the conclusion of the evidence, the circuit court found that
it was in the best interests of the children to have set
visitation with the Langs. Referring to the unfortunate and
untimely death of father, the circuit court noted how
important it will be for the children to receive the
"love and support of their paternal family." On
December 15, 2015, the circuit court ordered visitation as
set forth in the JDR order. The circuit court also found
mother to be "in contempt of court for failure to abide
by and comply with the Order of the Prince Edward Juvenile
and Domestic Relations Court dated August 27, 2015." The
basis of the contempt was mother's repeated efforts to
prevent the grandparents from exercising their visitation
rights, noting that mother "chose to simply ignore"
the Langs' attempts to set up visitation. The circuit
court found that mother had demonstrated an
"unwillingness to cooperate in any way, shape or form to
comply" with prior court orders. Despite stating that
the circuit court did not have "any confidence that
[mother was] going to comply with any of these orders, "