MEMORANDUM OPINION* BY v. Record No. 0013-22-3 JUDGE RANDOLPH A. BEALES DECEMBER 20, 2022 PHILIP MARTIN AND DONNA MARTIN

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE David B. Carson, Judge

Hilary S. Mariano (Christopher S. Potter; Phillip R. Lingafelt, Guardian ad litem for the minor children; Potter, Mariano & Jennings; Glenn Feldmann, on briefs), for appellant.

Seth C. Weston (Law Office of Seth C. Weston, PLC, on brief), for appellees.

Sara Martin (“mother”) appeals from the circuit court’s December 1, 2021 visitation order. In that order, the circuit court awarded visitation with the two minor children to appellees

Philip Martin and Donna Martin (the children’s paternal grandparents) under Code

§ 20-124.2(B2). That order also included a provision allowing the children’s paternal aunt (the appellees’ daughter) to be present during the children’s visitation with their grandparents after

June 1, 2022, and mother objected to that provision. On appeal, mother argues that the circuit court erred in awarding visitation over the mother’s objection that the paternal aunt should not be allowed to be present at the children’s visitation with their grandparents—and that the circuit

court “erred in its application of [Code] § 20-124.2(B2) to this case.” She also contends that the * Pursuant to Code § 17.1-413, this opinion is not designated for publication. circuit court “erred in awarding visitation to a non-parent who had not intervened in the suit”— specifically, the children’s paternal aunt. I. BACKGROUND1 “Under settled principles of appellate review, we view the evidence in the light most favorable to the grandparents, as the party prevailing below.” Rhodes v. Lang, 66 Va. App. 702, 704 (2016) (citing Chretien v. Chretien, 53 Va. App. 200, 202 (2008)). Consequently, we grant to the grandparents “all reasonable inferences fairly deducible therefrom.” Anderson v. Anderson, 29 Va. App. 673, 678 (1999). Mother and Todd Martin (“father”) married, and they had two children together between 2008 and 2010. They subsequently divorced. Father passed away in July 2020, leaving mother as the sole surviving parent of their two minor children. Erin Martin (“Aunt Erin”), the children’s paternal aunt, testified that father fostered a relationship between his children and his parents Philip and Donna Martin (collectively the “grandparents,” individually “grandfather” and “grandmother” respectively) before he died and that he would have wanted the grandparents to continue to have time—and visitation—with the children after his death. According to grandfather, the grandparents had been involved in the children’s lives since the day the children were born and neither mother nor father had expressed concerns about the grandparents spending time with the children. After father died, mother and Aunt Erin (who became the administrator of father’s estate) began arguing over financial issues pertaining to father’s estate and the life insurance for the children. Aunt Erin testified that she had attorneys write letters concerning the life insurance payouts that were due to the children in order “to ensure that the money that [she] believe[d] rightly belonged to the children went for their benefit.” Mother, however, believed that she should have rights regarding the money from her former husband’s life insurance policy and also claimed that Aunt Erin was undermining her parental authority. In the months following father’s death, mother prohibited Aunt Erin from seeing the children until the financial issues were resolved to mother’s satisfaction. Mother, however, continued to allow the children to visit with the grandparents—as long as Aunt Erin was not present during those visits.

The grandparents complied with mother’s terms although they did not agree that the children would be negatively affected in any way by Aunt Erin. Grandfather suffers from a terminal illness, and Aunt Erin—the grandparents’ only living child—would often spend four to five days each week at the grandparents’ home “helping to take care of them, doing grocery shopping, fixing things around the house, cooking, cleaning, [and] helping.” Grandmother also expressed distress at mother’s terms because she did not want to have to choose between having her daughter (her only remaining living child) around and being able to see her grandchildren.

Sometime later, however, mother told the grandparents that they also could not see the children until the financial issues were resolved. Shortly afterwards, the grandparents filed a petition for visitation with the children, which the City of Roanoke Juvenile and Domestic

Relations District Court granted. Mother appealed to the circuit court, and a hearing was held on

November 1, 2021.

At the hearing before the Circuit Court of the City of Roanoke, mother did not object to the children having visitation with the grandparents themselves. Instead, she stated that she had

“two reasonable requests in order for there to be visitation” with the grandparents. Mother’s lawyer stated, “Number one is no alcohol. . . . And number two is she does not want Erin Martin around her children.”2 Mother testified that she “believe[d] that the children should have a relationship with their grandparents,” but that Aunt Erin made it impossible for the grandparents and mother to work out a visitation schedule “because she [Aunt Erin] refuses to not be there.”

Mother also expressed concerns regarding the children’s awareness of the situation. She testified that the children had become aware of the disagreements between mother and Aunt Erin after

Aunt Erin sent a text message to one of the children, and mother testified that the disagreement in the family was causing the children stress. However, mother admitted that the children still wanted to see their grandparents—and agreed that she was fine with the children spending time with their grandparents.

Aunt Erin testified that she adored the children. She believed that the children “should

have every bit of love that is available to them” and that they needed a connection with the grandparents (and with her since she was such a large part of the grandparents’ lives) so that the children could maintain some connection to their father.

The children’s guardian ad litem informed the circuit court that the children had left him a voicemail message “and indicated they would prefer not to see her [Aunt Erin] when they visit the grandparents.” According to the guardian ad litem, the children are “both concerned about the impact that this [dispute] is having on their mother.” The guardian ad litem requested that the circuit court craft a visitation order that would take into account the children’s preferences

concerning Aunt Erin—although he did also state that “[t]here may be a time later on when the aunt can come back into the picture.”

After hearing testimony, the trial judge found that the children were “obviously loved by

many people” and that there was no evidence that mother, the grandparents, or Aunt Erin threatened the children’s health and safety. The trial judge then explained, “I have absolutely no trouble at all granting the grandparents[’] request for visitation. They have asked for that. They are entitled to it and I have heard nothing from Ms. Sara Martin, or otherwise, indicating that that request should not be granted.” Consequently, the circuit court granted the grandparents’ request for visitation pursuant to Code § 20-124.2(B2)—giving the grandparents one weekend per month with the children and one week with them in the summer.

At trial, the judge noted generally that “[u]ltimately it is the biological mother’s judgment, and the Court is loath[] to try and second guess a biological mother’s judgment as to something that is undermining his or her decisions and judgment as a parent.” The trial judge also found that it was “affirmatively harming these kids to have them keep coming back to court and trying to figure out what’s going on and dancing on eggshells around [the] four people that they love.” Consequently, although the trial judge recognized that Aunt Erin was not a party before the circuit court, the trial judge decided “to try as best I can” to give the parties a final ruling.

Without any further explanation or discussion of the best interests of the children, the circuit court then ruled that, beginning June 1, 2022, “insofar as the grandparents’ visitation is concerned, Erin may be present during that visitation, only after June 1st [2022].” The circuit court made clear that this condition on the grandparents’ visitation did not amount to granting

Aunt Erin visitation—and that if she wanted to have visitation with the children, she would then need to come back to the court herself. The circuit court noted mother’s objection “as to allowing Erin Martin’s involvement after June 1st.” Mother now appeals.

II. ANALYSIS

On appeal, mother’s assignments of error challenge the legal standard that the circuit court applied to the grandparents’ petition for visitation. The circuit court’s conclusions as to questions of law are subject to de novo review, Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 127 (1999) (en banc), while its “factual findings are entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support them,”

Mayer v. Corso-Mayer, 62 Va. App. 713, 728 (2014) (quoting Mullin v. Mullin, 45 Va. App.

289, 299 (2005)); see also Quantum Development Co., Inc. v. Luckett, 242 Va. 159, 161 (1991).

A. The Circuit Court Is Clear That It Only Awarded Visitation to the Grandparents

We must first address the question of to whom the circuit court awarded visitation. On appeal, mother contends that the circuit court “erred in awarding visitation to a non-parent [Aunt

Erin] who had not intervened in the suit or was not otherwise properly before the court.” The circuit court correctly acknowledged that Aunt Erin was not a party to the case before the court, stating that “Ms. Erin Martin is trying to request visitation and she’s not here.” Contrary to

mother’s argument, however, the circuit court did not award visitation to Aunt Erin. In fact, the circuit court made clear that it was not granting Aunt Erin visitation and emphasized, “If she

wants her own visitation, she needs to come back to the court.” It then awarded visitation to the grandparents and imposed conditions on how the grandparents could exercise their visitation.

One of those conditions was that “insofar as the grandparents’ visitation is concerned, Erin may be present during that visitation, only after June 1st [2022].” Therefore, only the grandparents— not Aunt Erin—were awarded visitation with their grandchildren.

Mother also contends that the circuit court “erred in awarding visitation to non-parents over the mother’s objection.” It is not clear from her briefs on appeal whether, in using the term

“non-parents,” mother means to refer exclusively to either the grandparents or Aunt Erin, or to both simultaneously. However, to the extent that mother’s contention that the circuit court

“erred in awarding visitation to non-parents” refers to Aunt Erin, we do not address that claimed error because the circuit court did not award Aunt Erin visitation with mother’s minor children.

See Rule 5A:20(c)(2) (“An assignment of error that does not address the findings, rulings, or failures to rule on issues in the trial court . . . is not sufficient.”); see, e.g., Geouge v. Traylor, 68

Va. App. 343, 373 (2017) (“Because Geouge has assigned error to a ruling that the circuit court

did not make, the circuit court could not and did not err in the manner alleged by [appellant] in the assignment of error. Thus, we cannot take cognizance of the claimed error.”).

B. Code § 20-124.2(B2) and the Circuit Court’s Award of Visitation to the Grandparents

To the extent that mother’s assignments of error address the conditions that the circuit court imposed on the award of visitation to the grandparents, we are left to determine whether the circuit court’s decision complied with Virginia law. Because the circuit court awarded visitation to the grandparents “pursuant to Virginia Code § 20-124.2(B2),” we must employ established principles of statutory construction to resolve this case. The Supreme Court has held that when analyzing a statute “the constant endeavor of the courts is to ascertain and give effect

to the intention of the legislature, [and] that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity.” City of Virginia Beach v. ESG

Enters., Inc., 243 Va. 149, 152 (1992) (quoting Barr v. Town and Country Properties, 240 Va.

292, 295 (1990)). “[T]he ‘words of a statute should be given “their common, ordinary and accepted meaning” absent a contrary intent by the legislature.’” Kane v. Szymczak, 41 Va. App.

365, 371 (2003) (quoting Mouberry v. Commonwealth, 39 Va. App. 576, 583 (2003)). In addition, as the Supreme Court has stated, “Virginia courts ‘presume that the legislature chose, with care, the words it used when it enacted the relevant statute,’” Tvardek v. Powhatan Village

Homeowners Ass’n, Inc., 291 Va. 269, 277 (2016) (quoting Zinone v. Lee’s Crossing

Homeowners Ass’n, 282 Va. 330, 337 (2011)), and “[t]he act of choosing carefully some words necessarily implies others are omitted with equal care,” Rickman v. Commonwealth, 294 Va.

531, 540 n.3 (2017) (quoting Central Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 42

Va. App. 264, 280 (2004)); see also Kane, 41 Va. App. at 371-72. However, courts “have a duty to construe statutes subject to a constitutional challenge in a manner that ‘avoid[s] any conflict with the Constitution.’” Copeland v. Todd, 282 Va. 183, 193 (2011) (alteration in original)

(quoting Commonwealth v. Doe, 278 Va. 223, 229 (2009)).

The provision under which the circuit court awarded visitation to the grandparents, Code

§ 20-124.2(B2), is a newly enacted subsection of Code § 20-124.2 that became effective July 1, 2021. 2021 Va. Acts Spec. Sess. I ch. 253. Code § 20-124.2(B2) provides:

In any case or proceeding in which a grandparent has petitioned the court for visitation with a minor grandchild, and a natural or adoptive parent of the minor grandchild is deceased or incapacitated, the grandparent who is related to such deceased or incapacitated parent shall be permitted to introduce evidence of such parent’s consent to visitation with the grandparent, in accordance with the rules of evidence. If the parent’s consent is proven by a preponderance of the evidence, the court may then determine if grandparent visitation is in the best interest of the minor grandchild.

In contrast to Code § 20-124.2(B),3 which deals with the court’s authority to grant visitation to

nonparents generally, Code § 20-124.2(B2) carves out a narrow and specific subset of nonparents to whom different requirements apply. This subset of nonparents (“qualifying

grandparents”) includes only those grandparents who petition for visitation with their minor grandchild and are parents to that child’s deceased or incapacitated parent. Code

§ 20-124.2(B2). If the petitioning nonparent does not meet these strict requirements, then that

person cannot petition for visitation under Code § 20-124.2(B2) and must, instead, satisfy the requirements for visitation under Code § 20-124.2(B).

According to the plain language of Code § 20-124.2(B2), trial courts may only award visitation to qualifying grandparents if two requirements are met. First, and as a condition precedent, the trial court must find by a preponderance of the evidence that the child’s deceased or incapacitated parent had essentially consented to visitation with the qualifying grandparents.

Code § 20-124.2(B2).4 Second, the trial court must determine whether “grandparent visitation is in the best interest of the minor grandchild.” Id.

C. The Best Interests of the Children

On appeal, mother raises arguments concerning the constitutionality of Code

§ 20-124.2(B2). However, assuming without deciding that Code § 20-124.2(B2) is

constitutional, we hold that the circuit court erred by not actually and clearly considering the statutory factors under Code § 20-124.3 in conducting its best interests analysis, and we thus conclude that the circuit court did not satisfy the basic requirements of the statute.^[5] Given that the circuit court concluded that father consented to visitation with the grandparents, Code

§ 20-124.2(B2) requires the circuit court next to consider whether “grandparent visitation is in the best interest of the minor grandchild.” Cf. Stadter v. Siperko, 52 Va. App. 81, 88 (2008) (“In matters of custody, visitation, and related child care issues, the court’s paramount concern is always the best interests of the child.” (quoting Farley v. Farley, 9 Va. App. 326, 327-28

(1990))). “In determining [the] best interests of a child for purposes of determining custody or visitation arrangements, including any pendente lite orders pursuant to [Code] § 20-103, the court shall consider” the factors listed in Code § 20-124.3. Code § 20-124.3; see, e.g., Cloutier v. Queen, 35 Va. App. 413, 424-25 (2001) (linking the requirement in Code § 20-124.2(B) that trial courts “give primary consideration to the best interests of the child” with the factors set out

in Code § 20-124.3). Given that Code § 20-124.2(B2) requires the trial court to determine the best interests of a child for the purposes of determining visitation, the court must consider the statutory factors listed in Code § 20-124.3. 6