Ruth B. Hughes v. Richard Lee Hughes ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Duff
Argued at Richmond, Virginia
RUTH B. HUGHES
MEMORANDUM OPINION * BY
v. Record No. 2565-97-2 JUDGE CHARLES H. DUFF
AUGUST 11, 1998
RICHARD LEE HUGHES
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
Jill L. Weiss (Hunton & Williams, on briefs),
for appellant.
Denis C. Englisby (Englisby & Englisby, on
brief), for appellee.
Ruth B. Hughes (mother) appeals the decision of the circuit
court awarding custody of the parties' two minor children to
Richard Lee Hughes (father). The trial court ordered a change in
custody based solely upon evidence that mother was living in the
same house with a man to whom she was not married. We reverse
the trial court's custody decision and return custody to the
mother.
"In matters concerning custody and visitation, the welfare
and best interests of the child are the 'primary, paramount, and
controlling consideration[s].'" Kogon v. Ulerick, 12 Va. App.
595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted).
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. A trial
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
court's determination of matters within its
discretion is reversible on appeal only for
an abuse of that discretion, and a trial
court's decision will not be set aside unless
plainly wrong or without evidence to support
it.
Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)
(citations omitted).
The record before us shows that the parties separated due to
various incidents of abuse by father often occurring in the
presence of the two young children, Adam and Luke Boyd. On one
occasion when the children were present in the same room, father
threw mother against the wall and held her there by her neck,
leaving her with bruises. On another occasion, father threatened
to kill both himself and mother with a gun.
After leaving the home because of such abuse, mother and the
children moved in with her brother for a while and then to her
parents' home. Due to her father's ill-health, she moved to a
YMCA shelter and then to St. Joseph's Villa, which provides
housing for abused and homeless women and their children. She
was asked to leave the shelter because father sent her a package
which contained alcohol, a violation of the shelter's rules. At
this point Mike Kopeski, a co-worker of mother, offered to allow
her and her children to stay in his home. In June 1996, Kopeski,
mother and her two children moved into a two bedroom house. She
testified that because she had no car and insufficient income to
support the boys and herself separately, she had no other options
than to accept Kopeski's offer. Mother denied having a sexual
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relationship with Kopeski, although she admitted being in love
with him. She produced evidence that Kopeski slept in one
bedroom and that she and her two sons slept in the other bedroom.
She slept in the bottom bunk bed, one son slept in the top bunk,
and the second son slept in a separate toddler bed in the room.
"Exposing children to their parents' living with persons to
whom they are not married has been disfavored by our Supreme
Court." Carrico v. Blevins, 12 Va. App. 47, 49, 402 S.E.2d 235,
237 (1991) (citing Brown v. Brown, 218 Va. 196, 237 S.E.2d 89(1977)). In Brown, unlike the situation in the case before us,
there was testimony that the mother's cohabitation adversely
affected the children. See Brown, 218 Va. at 200, 237 S.E.2d at
92. The trial court found that the mother's adulterous
relationship rendered her "an unfit and improper person to have
the care and custody of these children." Id.In Sutherland v. Sutherland, 14 Va. App. 42, 43, 414 S.E.2d
617, 618 (1992), this Court rejected the contention that Brown
established a per se rule that cohabitation renders a parent
unfit. Despite the mother's adulterous cohabitation with another
man, we found no abuse of discretion in the trial court's
decision to allow mother to maintain custody of the parties'
child. See id. at 44, 414 S.E.2d at 618.
Similarly, in Ford v. Ford, 14 Va. App. 551, 419 S.E.2d 415(1992), the trial court awarded the parents joint custody,
despite the fact that the father lived with his girlfriend. The
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evidence indicated that the father maintained a separate bedroom
in the home. We found no abuse of discretion, noting that "no
evidence was introduced that [the child] was exposed to the
illicit nature of her father's relationship with [the
girlfriend]" and that the father and his girlfriend "not only
went to great lengths to shield [the child] from their adultery,
they were also open with her about their ultimate intentions with
regard to one another, telling her that they intended to marry."
Id. at 555, 419 S.E.2d at 418.
In this instance, the trial court stated that it considered
all of the statutory factors and that it did not "find the living
arrangements that exist here with regard to these children to
show that [mother] is an unfit mother." The court found
insufficient evidence to prove adultery. Nonetheless, the court
focused solely on mother's living with an unrelated male to
change custody to father. The court noted that it was
of the opinion that the relationship, that
the living arrangement, is more than one of
more [sic] convenience. Were it not for that
living relationship this Court would probably
be more inclined to view the factors in this
case as being persuasive of custody and
support of [mother].
No evidence was introduced to demonstrate that mother's
cohabitation had an adverse impact on the children. Nonetheless,
the court stated that
the question becomes this: How long do we
have to wait to determine whether or not
children are being adversely affected by a
relationship in which there is a third party,
unrelated male who could be the father of
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[mother] living in the house. I don't
believe I'm compelled to wait. These
children are at very young, impressionable
ages. These children are ages three and four
and-a-half. . . . And this Court is not
pleased with what it views to be the moral
climate and atmosphere that exists within
that household.
The trial court concluded that the moral climate was
inappropriate based solely on the fact of cohabitation. No
evidence in the record supports the trial court's conclusion.
Code § 20-124.3 codifies the factors which the trial court
must consider when determining the child's best interests for
purposes of visitation and custody. Among those factors are
"[a]ny history of family abuse." The court failed to address the
allegations of abuse by father against mother, despite father's
convictions for assault and battery arising from such abuse. The
court noted no factor other than mother's living arrangement, and
presumed an adverse impact and negative moral climate without
evidentiary support.
Because the trial court's conclusion that mother's
cohabitation adversely affected the children is not supported by
evidence in the record, the decree is reversed. Custody of the
parties' two sons is returned to mother.
Reversed.
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