Stephen Santoro and Donna Santoro v Patsy Owens

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bumgardner and Lemons
STEPHEN SANTORO AND
DONNA SANTORO
MEMORANDUM OPINION*
v. 	Record No. 1801-99-1 	PER CURIAM
FEBRUARY 8, 2000
PATSY OWENS
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Thomas B. Hoover, Judge
(Stephen Paul Santoro; Donna Starks Santoro,
pro se, on brief).
No brief for appellee.
Stephen Santoro and Donna Santoro (the Santoros) appeal the
decision of the circuit court denying their Motion to Vacate the
April 21, 1993 custody order of the Juvenile and Domestic
Relations District Court for the City of Williamsburg and County
of James City (domestic relations court). 	On appeal, the Santoros
contend the 1993 order of the domestic relations court was void
because the domestic relations court failed to appoint a guardian
ad litem to represent the children whose custody was at issue.
The Santoros also contend on appeal that the trial court erred by
failing to hear evidence on their motion. 	Upon reviewing the
record and opening brief, we conclude that this appeal is without
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

merit. 	Accordingly, we summarily affirm the decision of the trial
court. 	See Rule 5A:27.
The record on appeal does not contain a transcript, but does
include the Amended Written Statement of Facts signed by the trial
judge.
Appointment of a Guardian ad Litem
The Santoros contend that the 1993 order of the domestic
relations court was void because the court did not appoint a
guardian ad litem as required by Code § 16.1-266(A). 	The trial
court found that the Santoros' Motion to Amend Custody did not
require the appointment of a guardian ad litem under Code
§ 16.1-266(A). 	We agree.
In pertinent part, Code § 16.1-266(A) provides:
Prior to the hearing by the court of any
case involving a child who is alleged to be
abused or neglected or who is the subject of
an entrustment agreement or a petition
terminating residual parental rights or is
otherwise before the court pursuant to
subdivision A 4 of § 16.1-241, the court
shall appoint a discreet and competent
attorney-at-law as guardian ad litem to
represent the child pursuant to
§ 16.1-266.1.
In contrast, subsection (D) provides:
In all other cases which in the discretion
of the court require counsel or a guardian
ad litem to represent the interests of the
child or children or the parent or guardian,
a discreet and competent attorney-at-law may
be appointed by the court. 	However, in
cases where the custody of a child or
children is the subject of controversy or
requires determination and each of the
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parents or other persons claiming a right to
custody is represented by counsel, the court
shall not appoint counsel or a guardian ad
litem to represent the interests of the
child or children unless the court finds, at
any stage in the proceedings in a specific
case, that the interests of the child or
children are not otherwise adequately
represented.
The record indicates that the Santoros repeatedly called
the James City County Department of Social Services (DSS) during
1991 and 1992 with allegations of child abuse by the children's
custodian, paternal grandmother Patsy Owens, and a paternal
aunt. 	DSS determined that the complaints were unfounded. 	The
matter pending before the domestic relations court at the time
of the 1993 order was the Santoros' motion to change custody.
Therefore, the case was not properly characterized as one
involving "a child who is alleged to be abused or neglected" so
as to come within the scope of Code § 16.1-266(A). 	Instead, it
was a case "where the custody of a child or children is the
subject of controversy" under Code § 16.1-266(D). 	Under the
latter section, the trial court was not required to appoint a
guardian ad litem for the child. 	Accordingly, the trial court
properly found that there was no merit to the Santoros' argument
that the unappealed 1993 order was void.
Evidentiary Hearing
The Santoros also contend that the trial court erred by
failing to conduct an evidentiary hearing on the "nature, source,
and effects of abuse allegations made during the court of the
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litigation that produced" the 1993 order. 	Whether to receive
evidence is a matter left to the discretion of the trial court,
whose decision will not be reversed in the absence of an abuse of
that discretion. 	The question raised by the Santoros was strictly
a question of law, not fact. 	Therefore, the trial court did not
abuse its discretion in refusing to conduct an evidentiary
hearing.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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