In The

Court of Appeals of Virginia

______

Record No. 0037-12-4

______

SHARON RUTH TUCKER, Appellant

v.

JOHN HARRISON CLARKE, Appellee

______

REPLACEMENT OPENING BRIEF OF APPELLANT

______

Sharon Tucker

118 N. Johnson Rd.

Sterling, Virginia 20164

(202) 379-6958

Pro Se

Page 1

SUBJECT INDEX

Table of Citations...... ii

Statement of the Case...... 1

Assignments of Error...... 4

Statement of Facts...... 5

Principles of Law, Argument, and Authorities...... 9

Conclusion...... 31

Certificate...... 31

TABLE OF CITATIONS

Cases

  • Anderson v. United States, 417 U.S. 211, 220 (1974)
  • Anonymous C. v. Anonymous B., unpublished opinion, Virginia Court of Appeals, Record Number 2232-09-2, pages 24-25 (January 11, 2011)
  • Arnold v. Commonwealth, 4 Va. App. 275, 279-80, 356 S.E.2d 847, 850 (1987)
  • Bottoms v. Bottoms, 249 Va. 410, 413, 457 S.E.2d 102, 104 (1995)
  • Brown v. Brown, 30 Va. App. 532, 535 518 S.E.2d 336, 337 (1999)
  • Dickson v. Dickson, 568 N.W.2d 284, 286 (N.D. 1997)
  • Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990)
  • Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670 (1960)
  • Harris v. Harris, Va. Ct. of Appeals, Unpublished, No. 2317-09-1
  • Mullen v. Mullen, 188 Va. 259, 269, 49 S.E.2d 349, 354 (1948)
  • Orndorff v. Commonwealth, 271 Va. 486, 628 S.E.2d 344 (2006)
  • Penny v. Commonwealth, 6 Va. App. 494, 498, 370 S.E.2d 314, 317 (1988)

References

  • American Jurisprudence 2d, Divorce and Separation, § 858
  • American Jurisprudence 2d, Divorce and Separation, § 906
  • 1994 Legislative Report entitled “The Study of Model Child Custody and Visitation Schedules” (Senate Document No. 46)

Statutes and Rules

  • Virginia Code § 20-107.2, as amended in 1988, Chapter 794
  • Virginia Code § 20-124.1
  • Georgia Code § 19-9-6(2)
  • Rule 5A:18 of the Rules of the Supreme Court of Virginia

Page 1

STATEMENT OF THE CASE

The parties to this case, John Harrison Clarke (“father”) and Sharon Ruth Tucker (“mother”) are formerly husband and wife, having been divorced on January 11, 2008. In 2009, the father filed a petition with the Fairfax County Circuit Court of Virginia (“the trial court”) requesting primary physical custody of the child. Following a two-day hearing held on September 23-24, 2009 and a non-evidentiary hearing held three weeks later, the court awarded primary physical custody to the father and joint legal custody to both parents (App. 545).

Although the first paragraph of the 2009 custody order stated that both parents were to share joint legal custody of the child, the trial court inserted language in the order during the October 14, 2009 hearing which provided that, “And it is further ordered that although the parties shall have joint legal custody, father/plaintiff shall have ultimate decision making authority in matters of education and daycare, but only after consultation with Defendant/Mother” (App. 547). This modification to the order arose because of disagreements that the mother and father had had over the child’s schooling during the three-week period that intervened between the time the September 24, 2009 oral ruling was issued from the bench, and the time that the non-evidentiary hearing was held on October 14, 2009 for entry of the order.

In addition, these modifications served as the basis for the appeal filed by the mother in 2009, which remained pending with this Virginia Court of Appeals (and, subsequently, with the Supreme Court of Virginia, which denied the mother’s petition for review), for almost two years.

Once the mother’s appeal was concluded, a two-day trial was held by the trial court on November 15-16, 2011 on a second petition for modification of custody that had been filed by the father on April 14, 2011. Following this trial, the father was awarded sole legal custody and the mother was awarded visitation on the second, fourth, and (when applicable) fifth weekends of the month, in an order entered by the trial court on December 13, 2011. (App. 853 854). The language in the order also specified that the “Father shall have sole discretion regarding all major decisions concerning Jeffrey; however, within a reasonable time of having made such a major decision, Father shall inform Mother in writing of the particulars of each such decision.” (App. 853 854).

In many respects, this appeal of the trial court’s December 13, 2011 custody order is a continuation of the last. When the mother appealed the trial court’s previous order to this Court, she had hoped that the Court would answer for her (as well as for other parents who share joint legal custody of their children) what the statutory term “joint legal custody” means in practical, real-world terms. As the mother discussed in the briefs for her prior appeal, although Virginia Code § 20-124.1 defines the term “joint legal custody,” the definition itself is so vague and ambiguous, that it provides little guidance to the lower trial courts as to how this statutory term should be interpreted and applied in the contested cases that come before them. She wrote:

Finally, this case raises the question of what “joint legal custody” means under Virginia Code § 20-124.1. Parents and guardians in Virginia would benefit greatly from knowing what it means in real-world terms, so that they would know what they are legally permitted to do with regard to making educational, medical, and other decisions regarding their children. This case affords the Virginia Supreme Court the opportunity to clarify for parents what their decision-making authorities are as joint legal custodians, since the Virginia cases that reference this term vary in their interpretation.

The Virginia Supreme Court did not grant the mother’s petition for further review, and this Court (although it issued an opinion in her case on February 22, 2011) likewise did not clarify for the mother what her legal rights were as the child’s joint legal custodian. And with the utmost respect for this Court (and with the hope that the Court does not misinterpret her words as an attack upon the Court), the mother believes that the Court’s failure to define the term “joint legal custody” negatively impacted the mother at the second custody trial held. In viewing the facts and the evidence presented at trial, the mother believes that the trial court judge improperly interpreted the mother’s exercise of her joint legal custody rights as “interference,” since it was operating under the incorrect assumption that the father’s decision-making authority with regard to medical issues, legal issues, and other matters was superior to the mother’s, based on the fact that the father had been awarded primary physical custody of the child in 2009.

The failure on the part of the trial court to recognize that the term “joint custody” is comprised of two distinct subparts (i.e., physical custody and legal custody) is an error that is perhaps quite common among the trial courts of Virginia. However, nevertheless, it is an error that resulted in the mother being improperly penalized by the trial court for having attempted to exercise her joint legal custody rights, and the mother having been viewed as “interfering” with the father’s rights when, had the proper definition of joint legal custody been applied, it might have been viewed the other way around (i.e., the father interfering with the mother’s rights).

This appeal (like the one before it) is an appeal about a mother who was granted certain legal rights under a custody order, but when the mother sought to exercise those legal rights (based upon what she believed to be a reasonable interpretation of “joint legal custody”), she found herself being viewed with disfavor and disapproval by the court, as well as by the father.

Therefore, the mother hopes this Court will use this appeal as an opportunity to clarify for non-physical-custodial parents what their joint legal custody rights are under the Virginia Code.

STATEMENT OF THE ASSIGNMENTS OF ERROR

and

APPENDIX PAGES WHERE THE ERROR WAS PRESERVED IN THE TRIAL COURT

ASSIGNMENTS OF ERROR REGARDING JOINT LEGAL CUSTODY

In operating under the incorrect presumption that the joint legal custody rights of the father and the mother were not equal under Virginia law (thereby causing the trial court to analyze the facts and the evidence presented in the case using an improper legal standard), the trial court erred as a matter of law by employing an improper legal standard in exercising its discretionary function.

Error primarily preserved at:

App. 757-761 (pleading objecting to trial court findings, filed December 1, 2011);

App. 842 (objections during December 9, 2011 hearing, Lines 1-11 of transcript);

App. 859 (written objections on the final order, entered on December 13, 2011);

App. 863 (Rule 1:1 motion, points of error #7 and the statutory citations below); App. 867 (trial court’s order denying Rule 1:1 motion, entered January 3, 2012);

Error also preserved at:

App. 764 (trial court’s order denying motions, entered December 1, 2011);

App. 803 (trial court’s denial of post-trial motions, Lines 5-10 of transcript);

App. 806 (trial court’s denial of post-trial motions, Lines 9-16 of transcript);

App. 809 (objections at December 9, 2011 hearing, Lines 19-22 of transcript);

App. 810 (objections at December 9, 2011 hearing, Lines 1-5 of transcript);

Error also preserved at:

App. 729 (Lines 16-22); App. 747 (last sentence, bottom of the page); App. 748 (first three paragraphs); App. 751-752; App. 767 (bottom of the page); App. 768 (top of page); App. 773 (second half of page); App. 775-777; App. 782; App. 791 (top half of page); App. 793-795; App. 862-863 (points of error #2-#7); App. 864.

In finding that the mother would not actively support the father’s relationship with the child in the future, the trial court erred in basing this on the mother’s exercise of her joint legal custody rights and in interpreting the mother’s exercise of her joint legal custody rights as “interference,” and by finding that the mother had “interfered” with the ability of the father to get medical help for the child, the trial court erred by improperly penalizing the mother for having attempted to exercise a legal right that she had been granted under the 2009 custody order (e.g., the right to be an equal decision-maker in all matters pertaining to medical care for the child).

References to where the trial court error was preserved are the exact same for this second assignment of error as for the first assignment of error above. See the Appendix pages above: 729; 747-748; 751-752; 757-761; 764; 767-768; 773; 775-777; 782; 791; 793-795; 803; 806; 809-810; 842; 859; 862-864; 867.

ASSIGNMENT OF ERROR REGARDING PROTECTIVE MOTHERS

The trial court erred by placing the life of the child at risk because it focused more on the emotional attributes of the protective mother than on the health and safety risks posed to the child, and, in disregarding such risks, erred by failing to make the welfare of the child its “primary, paramount, and controlling consideration” (as required under Mullen v. Mullen), and also failing to understand the psychology behind how a mother behaves when she fears for her child’s life, despite having found that (1) the mother’s relationship with the child is very good; (2) the mother loves the child and the child enjoys being with her; and (3) the mother is willing and able to maintain a close and continuing relationship with the child.

Error preserved at:

App. 728 (Lines 12-22); App. 729 (Lines 9-22); App. 731 (Lines 2-11); App. 737 (video paragraph); App. 739 (second paragraph, first sentence); App. 748 (first and second paragraphs); App. 752 (second to the last bullet point at bottom page); App. 755; App. 760-762; App. 763 (first paragraph); App. 764; App. 765-769; App. 776 (second paragraph, second sentence); App. 795-796; App. 803 (Lines 5-10); App. 806 (Lines 9-16); App. 809 (Lines 19-22); App. 810 (Lines 1-5); App. 842 (Lines 2-11); App. 849 (Lines 5-17); App. 859; App. 860 (point of error #1); App. 862 (points of error #2 and #3); App. 864 (bullet points, top half); App. 867.

Error also preserved at:

Mother’s objections to the trial court to not base its custody decision on the emotional attributes of a protective mother but, instead, the welfare of the child. App. 450-463; App. 458 (“And what I think often happens in these cases, and I hope to God it doesn’t happen in mine, is that – and you hear stories that the judge will see things that a safe, loving, protective mother does in her panic and think, how can she have sent all those emails. And how can she – and they become more concerned with the mother’s objectionable activities, and the focus starts getting away from the child. I didn’t call the teacher a liar in front of my son.”).

ASSIGNMENT OF ERROR REGARDING EVIDENTIARY ISSUES

The trial court erred by misapplying the hearsay rule and other rules of evidence and not allowing the mother to admit into evidence a number of emails that she sought to admit in order to explain her actions and explain what caused her to act in the way that she did (similar to what occurred in Anonymous C. v. Anonymous B., unpublished opinion, Virginia Court of Appeals, Record Number 2232-09-2, pages 24-25 (January 11, 2011)), and the trial court erred by not allowing the mother to admit these emails (regarding the child’s school, doctor, and others) based on a number of exceptions to the hearsay rule, such as Present Sense Impression; Excited Utterance; Then Existing Mental, Emotional, or Physical Condition; Effect of Statement on Listener; and State of Mind of the Declarant.

Error preserved at:

App. 315 (Lines 20-22); App. 316 (Lines 1-4); App. 396-407 (discussed in argument section), App. 453 (Lines 18-22, “but the reason why I was so adamant about trying to get you to read the email that I sent to the school principal that was sent shortly before I called her a liar”); App. 454; App. 459 (Lines 3-4, “which is again why I wanted those emails admitted into evidence”); and, if needed, ends of justice exception, Rule 5A:18.

ASSIGNMENT OF ERROR REGARDING THE FATHER’S APARTMENT BUILDING

In light of the safety risks posed to the child by living in an apartment building with a staircase that violates building safety code standards, and that nearly caused the child’s death, the trial court erred in finding that the father was meeting the basic needs of the child in terms of housing.

Error preserved at:

App. 748 (second paragraph); App. 761 (objection, bottom); App. 762 (top half), App. 764; App. 765-766; App. 803; App. 806; App. 809 (Lines 19-22); App. 810 (Lines 1-5); App. 842 (Lines 1-11); App. 859 (objections); App. 863; App. 867.

STATEMENT OF FACTS

The general history of the contentious litigation between the mother and father was set forth above (litigation that began in April 2009, and which has continued on for three years). During the opening statements of the parties, the mother said the following (App. 57):

MS. TUCKER: Thank you. First, I would like to say that the characterization of me as a litigious person is so far from the truth. I believe that's part of why I lost custody in 2009 was because I’m not a litigious person, contrary to what all of the pleadings and appeals may indicate. (App. 68)No. I'm not going to do that because this is incredibly sad. And it has been incredibly sad for our son. And I firmly believe that it will continue to be sad until the father comes to the realization that the only long-term solution to our conflict is for us to go to counseling, for us to say, this is how I feel. This is -- let's see if we can find some common ground. I am not going to be able to get my way all the time. I know that, you know, I am going to have to give in, give and take. But we're going to do this jointly because enough is enough. There has been real damage to this child.

The litigation between these two parents has been very damaging to the child, and it has been damaging to both of the parents as well. And it has also been draining for the parents’ extended family members, friends, and just about everyone else who has had to come into contact with it, including the teachers and other staff at the child’s school. (See App. 649, deposition of the school’s aftercare coordinator, Thomas Canavan: “I think the school would – would probably like to see whatever conflict between you and Jeffrey’s father end, so that, you know – I think that’s pretty much all that we, you know, we’d like to see happen,” and App. 664:

MOTHER: I mean, I guess I’ve already asked you – you think – just – you think it’s beneficial for Jeffrey that – that both John and I participate in Jeffrey’s school activities and go to his plays and that – that as long as there’s a way to minimize any friction between us – or assuming that John and I could coparent and get along, that that would be beneficial for Jeffrey to – for his parents to both be actively involved in his son’s education and activities and the activities that parents are invited to and that type of thing?

THOMAS CANAVAN: If there was a way for you and John to do that without any friction, that would be in Jeffrey’s best interest.

MOTHER: Yes. I couldn’t agree with you more.

Regarding the facts that relate to the assignments of error on appeal, the mother summarizes some of these facts below. One of the most significant of these facts is that after primary physical custody of the child changed from the mother to the father in September 2009, the child’s mental, emotional, and physical condition began to deteriorate. The fact that the child’s condition deteriorated following the transfer of primary physical custody from the mother to the father was not in dispute (App. 87-88, 464). However, the reasons for why and how such deterioration came about were. Some of the reasons expressed by the mother were as follows: