Keith D. Parish v. Mary Beth Spaulding ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
KEITH D. PARISH
MEMORANDUM OPINION *
v. Record No. 0137-96-4 PER CURIAM
NOVEMBER 19, 1996
MARY BETH SPAULDING
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard B. Potter, Judge
(Raymond B. Benzinger; Mary M. Benzinger;
Benzinger & Benzinger, on brief), for
appellant.
No brief for appellee.
Keith D. Parish appeals the decision of the circuit court
denying his request to change custody of the parties' children
from his former wife, Mary Beth Spaulding. Parish raises the
following questions on appeal:
(1) Did the trial court abuse its discretion
in failing to make the custody award
consistent with its findings of fact?
(2) Did the trial court improperly exclude
evidence of a history of family abuse?
(3) Did the trial court consider the wrong
time frame?
(4) Should the trial court have given more
weight to the uncontroverted evidence that
Spaulding denied visitation, refused to
mediate, relocated twice, and changed the
children's schools in violation of standing
court orders?
(5) Did the trial court abuse its discretion
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
in limiting Parish's contact with his
children?
(6) Did the trial court fail to determine
the best interests of the children including
support and maintenance?
(7) Should the district court order be restored
upon remand?
Upon reviewing the record and opening brief, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. Rule 5A:27.
"When addressing matters concerning a child . . . the
paramount consideration of a trial court is the child's best
interests." Logan v. Fairfax County Dep't of Human Dev., 13 Va.
App. 123, 128, 409 S.E.2d 460, 463 (1991). See Code § 20-124.3.
"'In matters of a child's welfare, trial courts are vested with
broad discretion in making the decisions necessary to guard and
to foster a child's best interests.'" Logan, 13 Va. App. at 128,
409 S.E.2d at 463 (citation omitted). In considering a petition
to change child custody, a trial court applies a two-part test to
determine "(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." Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41
(1986).
Abuse of Discretion
After hearing the evidence ore tenus, the trial court made
the following findings:
In terms of the factors considered by
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this court under [Code §] 20-124.3, in
determining the best interest of the children
involved . . . it should be noted that the
court finds in fact, there has [sic] been
substantial and material changes in
circumstances since the court's order on
January 7th, 1994.
The court however does not find that
it's in the best interest to change the
custody from . . . Spaulding, nor does the
court find that it's appropriate to order
joint custody or shared custody based on the
facts presented before this court.
* * * * * * *
The evidence is that they have both been
loving parents, and the only problem is, as
the guardian has pointed out, is they can't
get along with one another. If there's been
any abuse of these two children, it's been
simply that they cannot get along, and this
has in essence hurt the two children, and
that's clearly indicated by the testimony and
the reports of the medical doctors that have
been left with me as an exhibit today.
The court later reiterated that "the reason that joint custody
will not work, is that these parties do not communicate with one
another and have been unable to do that." Thus, the trial court
found that a material change of circumstances had occurred, and
that it was in the children's best interests for Spaulding to
retain primary physical custody, but to eliminate shared custody
due to the parents' inability to cooperate.
The trial judge's decision was based upon his assessment of
the witnesses' testimony and their credibility, as well as the
other evidence presented. The judge also heard the opinion of
the guardian ad litem, who was familiar with the parties, the
children and their therapist. The record amply supports the
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conclusion of the trial court that shared custody was disruptive
to the children and that the alternating Thursday transfer from
Spaulding to Parish did not promote the children's best
interests. As the court's decision was consistent with its
factual findings, Parish's contention that the court abused its
discretion is not supported.
Exclusion of Evidence of Abuse by Stepfather
Parish contends that the trial court excluded relevant
evidence of a history of abuse by the children's stepfather.
However, Parish has failed to identify any proffered evidence
which he was unable to introduce. The trial court allowed Parish
to present evidence supporting his allegation that the children's
new stepfather had a history of abusing his children from a
previous marriage. An order from a Madison County, Indiana court
limiting the stepfather's visitation with those children was
entered into evidence. The stepfather's former wife also
testified as to incidents of abuse which occurred in 1986, and
father's home study expert testified that she had great concern
over the children's welfare based upon past reports of
stepfather's possible violence. The expert testified that the
children should be removed immediately, but admitted she had
never been in the children's home and that a reference to the
Department of Social Services for possible abuse was returned as
unfounded.
In his brief, Parish also contends that the trial court
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erred in failing to consider this evidence of abuse. The trial
court considered the evidence but found that there was no
evidence that the stepfather or Spaulding had abused these
children. This factual determination was not clearly erroneous
and we find no abuse of discretion in the trial court's weighing
of the statutory factors. Therefore, Parish has not demonstrated
that the trial court excluded relevant evidence or failed to
consider evidence of abuse.
Time Frame
In a previous appeal, this matter was remanded because the
trial court had failed to consider current circumstances in
determining the children's best interests. Parish v. Spaulding,
20 Va. App. 130, 455 S.E.2d 728 (1995). At the hearing on
remand, the trial court received evidence of current
circumstances and based its decision on that evidence.
Therefore, Parish's contention that the trial judge considered
the wrong time frame is without merit.
Fault on the Part of Spaulding
Parish contends that the trial court failed to give
sufficient weight to Spaulding's violations of standing court
orders. The trial court considered the statutory factors set out
in Code § 20-124.3, including the respective parties' ability to
cooperate, and found that both parties were at fault.
Specifically, the trial court noted that "it's clear that both
the plaintiff and the defendant have interfered with the right of
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visitation and right of custody of the other parent on most
occasions." Credible evidence supports this conclusion.
The trial court is not required to give more weight to one
statutory factor over another. "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.'" Sargent v. Sargent, 20 Va. App.
694, 702, 460 S.E.2d 596, 599 (1995) (citation omitted).
Limitations on Parish's Contact
The record indicates that the visitation schedule was set
prior to the children commencing school. School records
presented to the court indicated that the Thursday-Friday
transfer from Spaulding to Parish every other week was disruptive
to the children's schooling because the children were frequently
tardy or absent on Thursdays and Fridays. Parish admitted that
he kept the children home from school on Fridays. The school
visitor log had numerous entries by Parish on days other than his
visitation days, which were for unspecified purposes.
Furthermore, Parish himself sought to eliminate that mid-week
split in his proposed custody modification.
The trial court found it was in the children's best
interests to eliminate the mid-week transfer now that the
children were in elementary school. We find no error in the
trial court's decision to minimize disruptions in the children's
schooling while still allowing Parish full visitation.
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Best Interests of the Children
Parish contends the trial court violated Code § 20-124.2(A)
when it reserved for later resolution questions of support and
related issues. Code § 20-124.2(A) states, in part, "[i]n any
case in which custody or visitation of minor children is at issue
. . . the court shall provide prompt adjudication, upon due
consideration of all the facts, of custody and visitation
arrangements, including support and maintenance for the children,
prior to other considerations arising in the matter." Parish has
neither alleged nor demonstrated undue delay on the part of the
trial court. Moreover, the parties agreed at the start of the
hearing that the question of support was not before the circuit
court, but subsequently, when Spaulding and the guardian ad litem
suggested that support be resolved, Parish objected. We find no
error in the court's resolution of the custody issue separately
from support.
Parish also contends that the trial court's decision was not
in the best interests of the children. However, as noted above,
the trial court made its decision based upon the evidence after
considering the statutory factors and the children's best
interests. We find no abuse of the court's discretion or error.
Accordingly, the decision of the circuit court is summarily
affirmed. Father's remaining question regarding restoration of
the district court order on remand is moot. 1
1
Spaulding's motion to dismiss, Parish's motion to strike
Spaulding's motion, and Parish's motion for sanctions are denied.
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Affirmed.
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