Karin Steinmann v Steven F. Buck

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
KARIN STEINMANN
MEMORANDUM OPINION*
v. 	Record No. 1117-00-1 	PER CURIAM
NOVEMBER 21, 2000
STEVEN F. BUCK
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
(Kristen D. Hofheimer; Charles R. Hofheimer;
Charles R. Hofheimer, P.C., on brief), for
appellant.
(Mary G. Commander, on brief), for appellee.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Steven F. Buck and Karin Steinmann are the parents of a minor
child. 	Upon Buck's motion, the trial judge declined to exercise
further jurisdiction over matters pertaining to custody of the
parties' child and found that the 24th Judicial District Court of
Jefferson Parish in the State of Louisiana is a more appropriate
forum pursuant to Code § 20-130. 	Steinmann appeals that decision.
She contends the trial judge erred in: 	(1) applying Code § 20-130
to decline jurisdiction because the matter is an appeal from the
Norfolk Juvenile and Domestic Relations District Court ("Norfolk
J&DR Court"), and the Norfolk Circuit Court is the appellate court
for such matters; (2) declining to hear an appeal of right from a

decision rendered in the Norfolk J&DR Court; (3) finding the
Louisiana court is a more appropriate forum where a final order
has been entered in the Norfolk J&DR Court, where both parties and
the guardian ad litem agreed to subject matter jurisdiction in the
Norfolk J&DR Court, and where the child resides in Louisiana only
as a result of the Norfolk J&DR Court's order, which is before the
trial court on appeal. 	Upon review of the record and briefs of
the parties, we conclude that Steinmann's appeal is without merit.
Accordingly, we summarily affirm the decision of the trial judge.
Rule 5A:27.
BACKGROUND
The parties were married in 1991 and were divorced by decree
entered on December 21, 1998 in the 24th Judicial District Court
of Jefferson Parish of the State of Louisiana ("Louisiana District
Court"). 	The divorce decree indicated the parties had "verbally
worked out" custody and visitation. 	The record indicates the
parties had agreed that Steinmann would have physical custody of
the child, with the child residing with her during the school year
and visiting Buck during the summer.
While the child was visiting Buck during the summer of 1999,
a dispute arose between the parties as to when the child would be
returned to Steinmann. 	Steinmann retrieved the child from
Louisiana and returned to Norfolk, where she was temporarily
living while her husband was in a military training school.
Steinmann's residence was in Germany at that time.
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In June 1999, a judge of the Louisiana District Court entered
an order demanding that Steinmann return the child to Buck. 	Buck
then filed a petition in the Norfolk J&DR Court for the
enforcement of the Louisiana District Court order and for custody
of the child. 	The Norfolk J&DR Court determined it had
jurisdiction to hear the case pursuant to Code §§ 16.1-241(A)(3),
20-126 and 20-128 based on the following reasons: 	(1) both
parties submitted themselves to the jurisdiction of the court by
filing petitions there; (2) both parties, under oath, verbally
submitted themselves to the court's jurisdiction; (3) the parents
and the child were physically present in Norfolk when Buck filed
his petition for custody; (4) Steinmann was personally served with
process in Norfolk; (5) both parties submitted themselves to the
court's jurisdiction by making general appearances; and (6) the
guardian ad litem agreed that it was in the child's best interests
to submit the child to the jurisdiction of the court.
The Norfolk J&DR Court awarded primary physical custody of
the child to Buck and established a visitation schedule for
Steinmann. 	The child has resided in Louisiana with Buck since
August 1999, and Steinmann returned to Germany.
Steinmann appealed the decision to the Norfolk Circuit Court.
The guardian ad litem filed a motion to dismiss the appeal based
on the circuit court's lack of subject matter jurisdiction or, in
the alternative, he requested that the circuit court decline to
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exercise jurisdiction pursuant to Code § 20-130. 	Buck also filed
a motion to dismiss.
By order entered on April 19, 2000, the trial judge found
that the Norfolk Circuit Court has jurisdiction over this custody
action as appealed from the Norfolk J&DR Court because the Norfolk
J&DR Court had jurisdiction over the petitions of the parties at
the time they were filed. 	However, the trial judge also found
that neither the parents nor the child are "currently physically
present" in Virginia. 	Moreover, neither the parents nor the child
"have significant contacts" with Virginia. 	The trial judge
further found the child has been residing continuously in
Louisiana with Buck since August 1999, with the exceptions of
visits with Steinmann. 	The judge concluded that the Louisiana
District Court, which has jurisdiction over the location where the
child currently resides, "is a more appropriate forum."
Considering the best interests of the child, and in accordance
with Code § 20-130, the trial judge declined to exercise
jurisdiction over the custody action and dismissed the action. 	He
further directed the clerk of the court to notify the Louisiana
District Court of the court's finding.
ANALYSIS
The Norfolk Circuit Court has jurisdiction over this
custody case as appealed from the Norfolk J&DR Court. 	Code
§§ 16.1-136, 16.1-296 and 17.1-513. 	However, Code § 20-130
provides, in pertinent part:
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A. A court which has jurisdiction under [the
Uniform Child Custody Jurisdiction Act] to
make an initial or modification decree may
decline to exercise its jurisdiction any
time before making a decree if it finds that
it is an inconvenient forum to make a
custody determination under the
circumstances of the case and that a court
of another state is a more appropriate
forum.
* 	* 	* 	* 	* 	* 	*
C. In determining if it is an inconvenient
forum, the court shall consider if it is in
the interest of the child that another state
assume jurisdiction. 	For this purpose it
may take into account the following factors,
among others:
1. If another state is or recently was the
child's home state;
2. If another state has a closer connection
with the child and his family or with the
child and one or more of the contestants;
3. If substantial evidence concerning the
child's present or future care, protection,
training, and personal relationships is more
readily available in another state; and
4. If the parties have agreed on another
forum which is no less appropriate.
"The paramount consideration for a trial court, even on the
determination of the most convenient forum to decide child
custody and visitation, is the child's welfare." 	Farley v.
Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990).
In matters of a child's welfare, trial
courts are vested with broad discretion in
making the decisions necessary to guard and
to foster a child's best interests. 	A trial
court's determination of matters within its
discretion is reversible on appeal only for
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an abuse of that discretion, and a trial
court's decision will not be set aside
unless plainly wrong or without evidence to
support it.
Id. at 328, 387 S.E.2d at 795. 	Thus, when "a trial court makes
a determination which is adequately supported by the record, the
determination must be affirmed." 	Id. at 328, 387 S.E.2d at 796.
See also Johnson v. Johnson, 26 Va. App. 135, 144, 493 S.E.2d
668, 672 (1997). 	Furthermore, in our review of a trial judge's
custody decision, we view the evidence in the light most
favorable to the prevailing party below. 	See Lutes v.
Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992).
Credible evidence supports the trial judge's decision. 	The
parties' divorce decree was entered in the Louisiana District
Court in 1998. 	The decree stated that the parties had "verbally
worked out [child] custody and visitation." 	On June 23, 1999,
after Steinmann removed the child from Buck's possession in
Louisiana and in violation of the parties' oral visitation
agreement, a judge of the Louisiana District Court entered an
order demanding that Steinmann return the child to Buck.
Because Steinmann had returned to Norfolk with the child, Buck
requested the Norfolk J&DR Court to enforce the Louisiana court
order and to award custody of the child to him. 	The child has
resided in Louisiana with Buck, in a locale within the
jurisdiction of the 24th Judicial District Court of Jefferson
Parish, since the Norfolk J&DR Court issued its ruling in August
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1999. 	Therefore, the Louisiana court has "a closer connection
with the child" and his father, one of the contestants. 	See
Code § 20-130(C)(2).
Furthermore, neither the parents nor the child currently
have any significant contacts with Norfolk, Virginia. 	During
the proceedings in the Norfolk J&DR Court, Steinmann was only
temporarily living in Norfolk while her husband attended a
training school. 	None of the parties reside in Norfolk.
Moreover, the parties and the guardian ad litem agreed to the
jurisdiction in the Norfolk J&DR Court. 	Neither Buck nor the
guardian ad litem agreed to the jurisdiction of the Norfolk
Circuit Court.
Furthermore, the 24th Judicial District Court of Jefferson
Parish has jurisdiction over the location where the child
currently resides. 	Thus, "substantial evidence concerning the
child's present or future care, protection, training, and
personal relationships is more readily available" in Louisiana.
Code § 20-130(C)(3).
Steinmann contends she has an absolute right to appeal the
decision of the Norfolk J&DR Court and that she cannot appeal
that court's decision to the Louisiana District Court. 	However,
an appeal from the juvenile court must be
heard de novo by the circuit court. 	Code
§ 16.1-136. 	"'A de novo hearing means a
trial anew, with the burden of proof
remaining upon the party with whom it rested
in the juvenile court.'" 	A trial de novo in
the circuit court "annuls the judgment of
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the [juvenile court] as completely as if
there had been no previous trial . . . and
. . . grants to a litigant every advantage
which would have been [available to the
litigant] had the case been tried originally
in [the circuit] court." 	"'A court which
hears a case de novo, which disregards the
judgment of the court below, which hears
evidence anew and new evidence, and which
makes final disposition of the case, acts
not as a court of appeals but as one
exercising original jurisdiction.'"
Fairfax County Dep't of Family Servs. v. D.N., 29 Va. App. 400,
406, 512 S.E.2d 830, 832 (1999) (citations omitted). 	Because
the Norfolk Circuit Court would conduct a "trial anew,"
disregarding the judgment of the Norfolk J&DR Court and hearing
the evidence anew "as if there had been no previous trial,"
Steinmann is not prejudiced by having the custody case heard in
the Louisiana District Court.
For these reasons, we hold that the trial judge did not
abuse his discretion in finding that the 24th Judicial District
Court of Jefferson Parish in the State of Louisiana would be a
more convenient forum to hear this custody case and in refusing
to exercise further jurisdiction in this matter. 	We therefore
affirm the trial judge's decision.
Affirmed.
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