In the unreported Virginia relocation case of Gudino, the Court of Appeals affirmed the Chesterfield County Circuit Court’s award of custody to a father in Tokyo, Japan. Gudino v. Gudino, (Record No. 0068-11-2, November 1, 2011).
 
            In nineteen pages, the appellate court credited some of the mother’s arguments, but then declared they were not consequential enough to disturb the trial court’s ruling.  On one of the Virginia Code’s ten (10) custody factors
[1], the trial judge was wrong. but since nothing in the record suggested the factor was pivotal, the error was deemed harmless.  When addressing another factor, the trial judge failed to mention the “particularities of father’s mental condition,” but that was deemed to be of “no moment.”  In connection with a third statutory criterion, the mother had failed to present a sufficiently specific objection in the trial court.  Therefore, her argument on that point was not even considered. (Va. Supreme Court Rule 5A:18).
 
            Overall, this case repeats an all-to-familiar theme:  If substantial evidence supports a paragraph of Virginia Code Section 20-124.3, and the lower court judge has identified that paragraph as a primary element of their decision, then no comprehensive analysis needs to accompany the opinion; and the ruling will not be reversed despite error in the handling of a non-primary statutory factor.           
 
            One has to admire the tenacity of a mother who spent $150,000.00 on a custody trial, $8,000.00 for an expert to merely review the report of the custody evaluator, and untold fees on her appeal.  But spending prodigiously and showing determination are not necessarily related to the presentation of sufficient credible facts at trial – or adequate legal authority on appeal. 
 
            In my professional opinion, if disputed facts depend on credibility, it is a waste of money to appeal unless the court made a significant mistake.
 

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            One element of this unpublished decision – involving expensive visitation travel — may raise a question of fundamental fairness for litigants in Fairfax County, Virginia.  In Fairfax County, local rules require that custody trials be scheduled at least 30 days in advance of equitable distribution (“ED”) trials.  As a result, a disappointed custody litigant would normally have to appeal before ED issues were decided. 
 
            Part of the reason the Gudino opinion affirms apportionment between the parents of the children’s travel cost is that the Court of Appeals had no evidence of the parties’ respective shares of the marital estate:
 

             "[B]ecause matters pertaining to mother’s entitlement to spousal support and equitable distribution were not yet decided when the circuit court rendered its decision, it is unclear from this record whether mother will, in fact, be able to pay her own way in Japan should she decide to visit with the children there. Mother works full time and lives at home with her father. She also incurred legal fees in an amount exceeding $150,000, and she paid an expert witness $8,000 merely to read Dr. Nelson’s report and testify at trial. Mother’s assertion that she is unable to pay her own way in Japan is, therefore, entirely speculative and not supported by the record."

 
Gudino, at 14.  In Fairfax County, absent a motion to delay the appeal deadline until after the ED trial, it may be logistically impossible to make ED data available in a custody determination.  Furthermore, unless there is evidence of assets and debts, attorney fees seem unrelated to how much more a party could afford.  We do not know, for example, if this mother was a millionaire or had already spent her last penny.



[1] Section 20-124.3, VA Code, Ann.