Bonnie J. Cooner v. Jason J. Cooner ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Felton and McClanahan
Argued at Alexandria, Virginia
BONNIE J. COONER
MEMORANDUM OPINION∗ BY
v. Record No. 1570-03-4 JUDGE ELIZABETH A. McCLANAHAN
APRIL 20, 2004
JASON J. COONER
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge
Gwena Kay Tibbits (Law Offices of Gwena Kay Tibbits,
on brief), for appellant.
Robert J. Hill for appellee.
Bonnie J. Cooner (wife) appeals from an order placing custody of her four children, N.B.,
T.B., G.C. and B.C., with Jason G. Cooner (husband). Wife contends the trial court erred in: (1)
finding a material change in circumstances that warranted a review of the custody of G.C. and
B.C.; (2) giving undue weight to the preferences of G.C. and B.C.; and, (3) finding sufficient
evidence to award custody of N.B. and T.B to husband, who was a non-parent.1 For the reasons
that follow, we affirm the judgment of the trial court.
∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Wife presented several other questions in her brief, but failed to provide the Court with
any law or authority in her argument on those questions. Rule 5A:20 requires appellants to brief
the “principles of law, the argument, and the authorities relating to each question presented.”
Questions “unsupported by argument, authority, or citations to the record do not merit appellate
consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992); see
also Kane v. Szymczak, 41 Va. App. 365, 370, 585 S.E.2d 349, 352 (2003); Thomas v.
Commonwealth, 38 Va. App. 319, 321 n.1, 563 S.E.2d 406, 407 n.1 (2002); Bennett v.
Commonwealth, 35 Va. App. 442, 452, 546 S.E.2d 209, 213 (2001); Moses v. Commonwealth,
27 Va. App. 293, 297 n.1, 498 S.E.2d 451, 453 n.1 (1998). As a result, wife has waived
appellate review of questions one (d), two, three, four, five, six and seven.
I. Background
When reviewing a chancellor’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.
Wright v. Wright, 38 Va. App. 394, 398, 564 S.E.2d 702, 704 (2002); Donnell v. Donnell, 20
Va. App. 37, 39, 455 S.E.2d 256, 257 (1995).
The parties met in 1993. Wife had sole custody of N.B, born August 28, 1986, and T.B.,
born September 21, 1988, both children from wife’s previous marriage. The parties began living
together at about the same time as the birth of their first child, G.C., born August 8, 1994. The
parties had a second child, B.C., born May 17, 1996. The parties married in 1998.
During most of the marriage, because of their tumultuous relationship, husband would
leave the home for extended periods of time. Because husband was often away from the home,
wife was the primary caregiver for the children. However, the children reported that wife was
both physically and emotionally abusive to them. When husband was at home, he had a good
relationship with the children, including N.B. and T.B., his stepchildren. Although husband
never adopted them, they considered him their father.
In 2001, during a period in which husband was not living in the home, wife filed a
petition for custody of G.C. and B.C. Husband appeared at the hearing, but did not contest the
petition. On the day of hearing, husband moved back into the home with wife and the children
and resided there until the parties finally separated in February 2002.
The final separation occurred after an incident in which wife was alleged to have hit one
of the children. Wife was arrested in connection with the incident, but the charges were dropped.
Husband obtained an order for emergency removal of the children. He petitioned the juvenile
and domestic relations district court for custody, and was awarded temporary custody of all four
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children. Wife was prevented from having any contact with the children. The J&DR court
awarded husband permanent custody of the children in August 2002.
Wife appealed to the circuit court, which conducted a hearing over four days in April
2003. The chancellor interviewed each child individually in his chambers. He told each child
that he or she was not being asked to make the custody decision and that the custody decision
would be made by the court.
The trial court found three material changes of circumstances that warranted review of
the children’s custody, “each of which by itself would be sufficient to warrant reconsideration by
the Court.” First, he considered wife’s arrest, noting that the charges against her were dropped.
However, he found that wife admitted that she “pushed her daughter,” a fact that the court
deemed to be a material change in circumstances. Second, the court found that disclosures of
physical abuse made in various proceedings after June 2001, which were not known to any
previous court ruling on the children’s custody, constituted a material change in circumstances.
Third, the court considered the fact that the children had been living with father for more than a
year a material change of circumstances warranting a reconsideration of custody.
In its ruling, the court discussed the legal issue of placing the custody of children with a
non-parent. The chancellor also reviewed the statutory factors relevant to the best interests of the
children. In reviewing the factors, the court stated that it considered its discussions with the
children and that N.B. and T.B wanted “nothing to do with their mother.” He also stated that at
ages thirteen and fifteen, their preferences were entitled to great weight. As to G.C. and B.C.,
the court acknowledged that at ages six and eight, “I don’t think they’re of an age where I would
give or should give the same weight that I would give to children of [T.B.] and [N.B]’s age.” He
further stated that G.C. and B.C. had expressed significant negative feelings toward their mother
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and that those feelings were entitled to some weight, “but not remotely what I give [N.B.] and
[T.B.].”
With regard to N.B. and T.B., the court found that husband had met the burden of clear
and convincing evidence to deprive wife, the children’s natural parent, of custody. The
chancellor found that wife’s physical and emotional abuse toward the children overcame the
presumption favoring the parent. The court then awarded sole legal custody of N.B., T.B., G.C.,
and B.C. to husband.
II. Analysis
A. Standard of Review
A trial court may “revise and alter such decree concerning the care, custody, and
maintenance of the children and make a new decree concerning the same, as the circumstances of
the parents and the benefit of the children may require.” Code § 20-108; Wilson v. Wilson, 18
Va. App. 193, 195, 442 S.E.2d 694, 695-96 (1994). The decision to modify a child custody
order is committed to the sound discretion of the trial court. Id.
In considering whether a change in custody is warranted, the trial court determines:
(1) whether there has been a material change of circumstances since the most recent custody
award; and (2) whether a change in custody would be in the best interests of the child. Keel v.
Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983); see also Visikides v. Derr, 3 Va. App. 69,
70, 348 S.E.2d 40, 41 (1986). The parent seeking to obtain a transfer of custody bears the
burden to show a change in circumstances, Hughes v. Gentry, 18 Va. App. 318, 322, 443 S.E.2d
448, 451 (1994), and that the change in custody is appropriate for the welfare of the child.
Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986) (citations omitted).
“The trial court’s decision, when based upon an ore tenus hearing, is entitled to great
weight and will not be disturbed unless plainly wrong or without evidence to support it.”
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Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986) (citing Carter v. Carter,
223 Va. 505, 508-09, 291 S.E.2d 218, 220 (1982)). “‘A trial court’s determination of matters
within its discretion is reversible on appeal only for abuse of that discretion . . . and a trial court’s
decision will not be set aside unless plainly wrong or without evidence to support it.’”
Goldhamer v. Cohen, 31 Va. App. 728, 734-35, 525 S.E.2d 599, 602 (2000) (quoting Farley v.
Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).
B. Material Change in Circumstances
“A party seeking to modify an existing custody order bears the burden of proving that a
change in circumstances has occurred since the last custody determination and that the
circumstances warrant a change of custody to promote the children’s best interests.” Brown v.
Brown, 30 Va. App. 532, 537, 518 S.E.2d 336, 338 (1999) (citations omitted). “‘Changed
circumstances’ is a broad concept and incorporates a broad range of positive and negative
developments in the lives of the children.” Parish v. Spaulding, 26 Va. App. 566, 573, 496
S.E.2d 91, 94 (1998), aff’d, 257 Va. 357, 513 S.E.2d 391 (1999) (citation omitted). “‘Whether a
change of circumstances exists is a factual finding that will not be disturbed on appeal if the
finding is supported by credible evidence.’” Ohlen v. Shively, 16 Va. App. 419, 423, 430 S.E.2d
559, 561 (1993) (citation omitted); see also Visikides, 3 Va. App. at 70, 348 S.E.2d at 41.
The court found three material changes of circumstances that warranted review of the
children’s custody, “each of which by itself would be sufficient”: wife’s admission that she hit
one of the children, the disclosures of physical abuse made in various proceedings since the
custody issue was heard by any other court, and that the children had been living with the father
for more than a year. These factual findings were supported by credible evidence and will not be
disturbed on appeal. We find no error in the court’s determination that a material change in
circumstances occurred since the last custody order.
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C. The Court Did Not Place Undue Weight on the Preferences of G.C. and B.C.
Wife argues that the trial court should not have given any weight to the custody
preferences of G.C. and B.C., who were eight and six, respectively, at the time of hearing. She
contends that the trial court was required to first determine whether each child is of “reasonable
intelligence, understanding, age and experience to express such a preference.”
Code § 20-124.3(8) provides that the court shall take into consideration: “The reasonable
preference of the child, if the court deems the child to be of reasonable intelligence,
understanding, age and experience to express such a preference.” Although a child’s preference
“should be considered and given appropriate weight,” it does not control the custody
determination and is just one factor to be considered. Bailes v. Sours, 231 Va. 96, 99, 340
S.E.2d 824, 826 (1986) (citations omitted).
With regard to the preferences of G.C. and B.C., the court stated, “I don’t think they are
of an age where I would give or should give the same weight that I would give to children of
[T.B] and [N.B.]’s age.” (T.B. and N.B. were thirteen and fifteen respectively, while G.C. and
B.C were eight and six respectively.) The court noted that G.C. and B.C. had expressed
significant negative feelings toward their mother and that their feelings were due some weight,
“but not remotely what I give [N.B.] and [T.B.].” These findings by the court clearly indicate it
found the children to be of reasonable intelligence, understanding, age and experience to express
their preference. Moreover, the court also weighed their testimony in light of the statutory
factors.
Code § 20-124.3 also requires the court to take nine other factors into consideration for
purposes of determining custody arrangements, including the age and physical and mental
condition of the children, the age and physical and mental condition of each parent, the
relationship existing between each parent and each child, the needs of the children, the role each
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parent has played and will play in the future, the propensity of each parent to allow the child
contact with the other parent, the relative willingness and demonstrated ability of each parent to
maintain a close and continual relationship with the children and the ability of each parent to
cooperate in matters pertaining to the children, any history of family abuse, and other relevant
factors. As long as the trial court examines the factors, it is not “required to quantify or elaborate
exactly what weight or consideration it has given to each of the statutory factors.” Woolley v.
Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986).
The record demonstrates that the court made findings on each of the relevant factors.
While the court took each child’s preferences into consideration, applying the weight it found
appropriate to each child’s intelligence, understanding, age and experience, it is clear from the
record that those preferences were not dispositive of the custody issue.
D. The Court Did Not Err in Awarding Custody of N.B. and T.B. to Husband
Wife asserts that “[i]n a custody dispute between a parent and a non-parent, the law
presumes that the child’s best interests will be served when in the custody of its parent.” Brown
v. Burch, 30 Va. App. 670, 685, 519 S.E.2d 403, 410 (1999) (citation omitted). In fact, the
United States Supreme Court has recognized that parents have a fundamental right to make the
decisions concerning the care, custody and control of their children. Troxel v. Granville, 530
U.S. 57, 66 (2000) (‘“We have recognized on numerous occasions that the relationship between
parent and child is constitutionally protected.’” (quoting Quilloin v. Walcott, 434 U.S. 246, 255
(1978))) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)).
“Although the presumption favoring a parent over a non-parent is a strong one, it is
rebutted when certain factors are established by clear and convincing evidence.” Bailes, 231 Va.
at 100, 340 S.E.2d at 827 (footnote omitted). Wife argues that there was insufficient evidence to
rebut the presumption and merit an award of custody of her two children by her previous
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marriage, N.B. and T.B., to husband, who is a non-parent. “[I]n the absence of a showing of
unfitness of the parent, special facts and circumstances must be shown constituting an
extraordinary reason for taking a child from its parent, or parents.” Wilkerson v. Wilkerson, 214
Va. 395, 397-98, 200 S.E.2d 581, 583 (1973) (citation omitted). “The initial burden is on the
nonparent to introduce clear and convincing evidence at trial of facts and circumstances which
constitute an ‘extraordinary reason’ for depriving a natural parent of custody of her or his child.”
Mason v. Moon, 9 Va. App. 217, 223, 385 S.E.2d 242, 246 (1989) (quoting Patrick v. Byerley,
228 Va. 691, 694, 325 S.E.2d 99, 101 (1985)). “Once the presumption favoring parental custody
has been rebutted, the parental and non-parental parties stand equally before the court, with no
presumption in favor of either, and the question is the determination of the best interest of the
child according to the preponderance of the evidence.” Walker v. Fagg, 11 Va. App. 581, 586,
400 S.E.2d 208, 211 (1991) (citing Smith v. Pond, 5 Va. App. 161, 360 S.E.2d 885 (1987)).
In this case, the court found that husband met his burden of clear and convincing
evidence that would warrant depriving a natural parent of custody. The chancellor found
“special facts and circumstances constituting extraordinary reasons to take the child . . . from the
parent in this case, Mrs. Cooner, and I’m talking specifically about the physical and emotional
abuse . . . . And I do believe that overcomes the presumption favoring a parent.” The court then
found that the best interests of the children would be to place custody of the children with the
husband.
Sufficient evidence supports the trial court’s finding by the clear and convincing evidence
standard that there were special and unique circumstances that rebutted the presumption of
custody in wife. The trial court, therefore, did not err when it found that N.B. and T.B’s best
interests were served by granting custody to husband.
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III. Conclusion
For the reasons above, we conclude that the trial court did not err in finding a material
change of circumstances that warranted a review of the custody of G.C. and B.C., giving undue
influence to the preferences of G.C. and B.C., and finding the evidence sufficient to award
custody of N.B. and T.B to husband, who was a non-parent. Accordingly, we affirm the
judgment of the trial court.
Affirmed.
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