COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Beales and Senior Judge Annunziata
THOMAS LEE SOWERS
Record No. 2339-10-3
MEMORANDUM OPINION *
MAY 10, 2011
KAREN S. WALKER
FROM THE CIRCUIT COURT OF THE CITY OF SALEM
James R. Swanson, Judge 1
(Thomas Lee Sowers, pro se, on brief).
No brief for appellee or guardian ad litem. 2
Thomas Lee Sowers appeals an order in which the trial court ruled that it did not have
jurisdiction to hear Sowers’ motions pursuant to the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA). Sowers argues that the trial court erred by (1) initiating ex parte
communications with Karen S. Walker’s counsel and the guardian ad litem and raising the issue of
jurisdiction for the first time during these communications; (2) holding that Virginia did not have
jurisdiction pursuant to Code § 20-146.12 to hear the matters of child custody and support; (3) not
addressing the child support motions pending before the trial court; (4) not stating that prior orders
for custody and support remain in full force and effect; (5) awarding attorney’s fees and costs to the
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Judge Swanson entered the final order; however, Judge Robert P. Doherty, Jr. heard the
case and issued the rulings from the bench.
On March 24, 2011, Diana M. Perkinson, guardian ad litem for the minor child, filed a
motion for an extension of time to file a brief, which was due on March 1, 2011. Since we are
today ruling in favor of the appellee’s and the guardian ad litem’s position by affirming the trial
court, the guardian ad litem’s said motion is essentially moot.
guardian ad litem without determining the obligation to each parent and each parent’s ability to pay;
and (6) denying Sowers’ motion to show cause because Walker failed to give thirty days written
notice of the child’s move out of Virginia pursuant to Code § 20-124.5. Upon reviewing the record
and Sowers’ brief, we conclude that this appeal is without merit. Accordingly, we summarily
affirm the decision of the trial court. See Rule 5A:27.
The parties have two children. 3 On March 31, 2008, the trial court ordered that the
parties would have joint legal custody of the children, and each parent had physical custody of
one child. On June 3, 2009, the trial court entered a child support order.
In 2010, Sowers and Walker each filed motions to amend custody and support for the
minor child. Sowers lives in Charlotte, North Carolina, and Walker lives in Orlando, Florida.
The minor child was living in North Carolina at the time of the hearing.
On July 26, 2010, the City of Salem Juvenile and Domestic Relations District Court (the
JDR court) entered orders regarding custody and support, which were appealed to the trial court.
On October 1, 2010, the trial court held that Virginia did not have jurisdiction pursuant to the
UCCJEA to determine custody and support of the minor child. Further, the trial court ruled that
the JDR court did not have authority to enter its July 26, 2010 orders, so they were void for lack
of jurisdiction. The trial court entered an order reflecting its ruling on October 13, 2010, and this
This appeal concerns only the younger child; the older child was no longer a minor at
the time of the hearing.
Jurisdiction – Issue 2
Sowers argues that the trial court erred in ruling that it did not have jurisdiction pursuant
to the UCCJEA.
In issuing its ruling, the trial court cited to Code §§ 20-146.12 and –146.13. Code
§ 20-146.13 concerns “Exclusive, continuing jurisdiction” and states:
A. Except as otherwise provided in § 20-146.15, a court of this
Commonwealth that has made a child custody determination
consistent with § 20-146.12 or § 20-146.14 has exclusive,
continuing jurisdiction as long as the child, the child’s parents, or
any person acting as a parent continue to live in this
B. A court of this Commonwealth that has made a child custody
determination and does not have exclusive, continuing jurisdiction
under this section may modify that determination only if it has
jurisdiction to make an initial determination under § 20-146.12.
As the trial court noted, neither parent nor the child lives in the Commonwealth;
therefore, subsection A does not apply.
With respect to subsection B, the trial court examined Code § 20-146.12 to determine if it
would have jurisdiction. Code § 20-146.12 concerns “Initial child custody jurisdiction” and
A. Except as otherwise provided in § 20-146.15, a court of this
Commonwealth has jurisdiction to make an initial child custody
determination only if:
1. This Commonwealth is the home state of the child on the date of
the commencement of the proceeding, or was the home state of the
child within six months before the commencement of the
proceeding and the child is absent from this Commonwealth but a
parent or person acting as a parent continues to live in this
2. A court of another state does not have jurisdiction under
subdivision 1, or a court of the home state of the child has declined
to exercise jurisdiction on the ground that this Commonwealth is
the more appropriate forum under § 20-146.18 or § 20-146.19, and
(i) the child and the child’s parents, or the child and at least one
parent or a person acting as a parent, have a significant connection
with this Commonwealth other than mere physical presence and
(ii) substantial evidence is available in this Commonwealth
concerning the child’s care, protection, training, and personal
3. All courts having jurisdiction under subdivision 1 or 2 have
declined to exercise jurisdiction on the ground that a court of this
Commonwealth is the more appropriate forum to determine the
custody of the child under § 20-146.18 or § 20-146.19; or
4. No court of any other state would have jurisdiction under the
criteria specified in subdivision 1, 2, or 3.
As the trial court correctly noted, it would not have jurisdiction for an initial child
custody determination because neither the parents nor the child lives in Virginia and they have
not lived in Virginia for years. Virginia is not the child’s home state as defined by Code
Sowers asserts that Code § 20-146.15 allows Virginia to remain the child’s home state.
However, Code § 20-146.15 concerns “Temporary emergency jurisdiction,” which does not
apply in this situation because the child was not abandoned in Virginia or being abused.
Accordingly, the trial court did not err in ruling that it did not have jurisdiction to hear the
matters pursuant to the UCCJEA.
Rule 5A:18 – Issues 1, 3, 4, 5
Sowers argues that the trial court erred by (1) initiating ex parte communications with
Walker’s counsel and the guardian ad litem and raising the issue of jurisdiction for the first time
during these communications; (4) not stating what, if any, prior orders for custody and support
remain in full force and effect; and (5) awarding attorney’s fees and costs to the guardian ad litem
without specifying how the fees were to be paid, yet also holding that it did not have jurisdiction to
hear the case.
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18.
The trial court waived Sowers’ endorsement to the final order, but included his objections
to the ruling that the trial court did not have jurisdiction to hear the matter pursuant to the
UCCJEA and Sowers’ objection to the denial of his motion for show cause. Sowers did not file
a motion to reconsider. Therefore, the arguments relating to issues 1, 4, and 5 were not
preserved pursuant to Rule 5A:18.
For his third assignment of error, Sowers argues that the trial court did not address the
motions to modify child support and argues that the Uniform Interstate Family Support Act
(UIFSA) controls the child support issue. However, Sowers did not argue the applicability of
UIFSA to the trial court. We “will not consider an argument on appeal which was not presented
to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
A pro se litigant appearing “is no less bound by the rules of procedure and substantive
law than a defendant represented by counsel.” Townes v. Commonwealth, 234 Va. 307, 319,
362 S.E.2d 650, 657 (1987).
Rule 5A:20 – Issue 6
Sowers argues that the trial court erred by not providing the proper authority or reason for
denying his motion to show cause because Walker did not give thirty days notice before moving
the child out of Virginia. 4 The trial court denied the motion because it did not have jurisdiction
to hear it.
In his brief, Sowers states that Walker moved the child out of Virginia in 2000.
Sowers asserts that the trial court abused its discretion in denying the motion because the
parties’ final decree of divorce “specified that thirty (30) days prior notice be given to the JDR
before moving the child out of the Commonwealth.”
Rule 5A:20(e) mandates that appellant’s opening brief include “[t]he standard of review
and the argument (including principles of law and authorities) relating to each assignment of
Sowers did not comply with Rule 5A:20(e) because his opening brief does not contain
any principles of law, or citation to legal authorities, or the record to fully develop his arguments
for his sixth assignment of error. Sowers has the burden of showing that reversible error was
committed. See Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992).
Unsupported assertions of error “do not merit appellate consideration.” Buchanan v. Buchanan,
14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). “Even pro se litigants must comply with the
rules of court.” Francis v. Francis, 30 Va. App. 584, 591, 518 S.E.2d 842, 846 (1999).
We find that Sowers’ failure to comply with Rule 5A:20(e) is significant, so we will not
consider the sixth assignment of error. See Fadness v. Fadness, 52 Va. App. 833, 851, 667
S.E.2d 857, 866 (2008) (“If the parties believed that the circuit court erred, it was their duty to
present that error to us with legal authority to support their contention.”); Parks v. Parks, 52
Va. App. 663, 664, 666 S.E.2d 547, 548 (2008).
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.