William Gary Wadford v. A.D.R.Wadford & R.T.Redford ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Elder
Argued at Richmond, Virginia
WILLIAM GARY WADFORD
MEMORANDUM OPINION * BY
v. Record No. 3011-97-2 JUDGE JAMES W. BENTON, JR.
JUNE 16, 1998
ANGELA DENISE RICK WADFORD
AND RANDALL T. REDFORD
FROM THE CIRCUIT COURT OF LUNENBURG COUNTY
William L. Wellons, Judge
Nora J. Miller (Watson & Nelson, P.C., on
brief), for appellant.
Carol B. Gravitt (Gravitt & Gravitt, P.C., on
brief), for appellee.
William Gary Wadford appeals from an order of the circuit
court granting the custody petitions of Angela Denise Rick
Wadford, his former wife, for custody of her daughter and of
Randall T. Redford for custody of the same child, Redford's
daughter. For the reasons that follow, we find no reversible
error and affirm the order.
I.
The evidence in the record proved that William Wadford ("the
husband") and Angela Wadford ("the wife") were married in 1986.
The husband and the wife are the natural parents of a son, who
was born in 1985 before the marriage. During the course of their
marriage, the husband and the wife separated frequently. During
one of these separations, the wife had a relationship with
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Randall Redford. The wife and husband later resumed living
together. During their cohabitation, the wife had a daughter in
1989.
The wife and the husband again separated in 1994. During
this separation, the husband was awarded custody of the two
children. The wife and the husband filed separate petitions for
divorce during the separation. In December 1996, during the
separation, the wife, the daughter and Redford had DNA tests to
determine paternity. The analysis indicated a probability of
99.81% that Redford was the daughter's natural father. The wife
testified that she began suspecting the daughter was not the
husband's child when the daughter was about five years old and
the daughter began to resemble Redford. Redford testified that
for several years he also had suspicions that he was the
daughter's father because his relatives told him the daughter
resembled him. In February 1997, Redford and the wife filed
petitions seeking custody of the daughter. A judge of the
juvenile and domestic relations district court ordered custody of
the children to remain with the husband.
In the circuit court, the trial judge considered in one
proceeding evidence concerning the divorce between the husband
and the wife and the de novo appeals of the wife and Redford from
the custody order of the juvenile court. At the conclusion of
the ore tenus hearing, the trial judge entered a decree of
divorce upon the wife's petition for a non-fault divorce. In a
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later separate order, the trial judge awarded custody of the son
to the husband and awarded custody of the daughter to the wife
and Redford.
II.
On this appeal, the husband raises the following issues:
1. Whether the trial judge erred in refusing
to allow the children to testify at the
hearing;
2. Whether the trial judge erred in failing
to make separate rulings as to law and fact
with respect to the wife's and Redford's
petitions for custody of the daughter because
different legal tests were required to be
applied to each petition;
3. Whether the trial judge erred in
determining that Redford should be awarded
custody of the daughter; and
4. Whether the trial judge erred in
determining that the wife should be awarded
custody of the daughter.
The wife and Redford contend that they should be awarded
costs and attorneys' fees incurred in this appeal because the
appeal is frivolous.
A.
At trial, the husband's counsel said to the judge, "We are
going to ask you speak with the children." In support of that
request, the husband's counsel argued that "particularly in the
case where you are going to allow statements that the children
have made to not only parties, but third parties to come into
evidence, I think it should come in. . . . I hesitate to call the
children to the stand, but I believe the children will tell you a
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lot of what [the wife] just said isn't true." The trial judge
responded "that it would probably not serve any additional
purpose in terms of the Court's decision making process to speak
with the children. . . . So the Court is going to rule that it
will not interview the children." When the judge declined to
speak with the children in his chambers, the husband's counsel
did not call the children as witnesses to testify.
The trial judge's decision whether to interview children in
the judge's chambers will not be reversed unless the trial judge
abused his discretion. See M.E.D. v. J.P.M., 3 Va. App. 391,
404, 350 S.E.2d 215, 224 (1986). Beyond counsel's assertion, the
record does not disclose any necessity for the judge to have
spoken to the children in his chambers. Thus, the record fails
to establish that the judge's decision was an abuse of
discretion.
Furthermore, no effort was made to present the children as
witnesses. See Lawson v. Lawson, 198 Va. 403, 409, 94 S.E.2d
215, 220 (1956). In a similar situation, we have ruled that
"[i]n the absence of any action to call the child[ren] as . . .
witness[es], . . . the court did not err in declining to 'meet
with' [them] in chambers." M.E.D., 3 Va. App. at 404, 350 S.E.2d
at 224. Here, as in that case, the husband "took no affirmative
step to tender the child[ren] as . . . witness[es] and, in fact,
expressly eschewed any such step." Accordingly, the record does
not support the husband's claim of error.
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B.
Alleging that the wife lost custody because of "a prior
divestiture," the husband argues that the trial judge erred in
giving the wife "the presumption as a natural parent." We
disagree with this assertion because no evidence proved that an
order had been entered divesting the wife of parental rights.
The evidence proved that in an earlier proceeding between the
husband and the wife, a court gave custody of the children to the
husband and granted the wife visitation. Thus, when the wife
petitioned for a change in custody in this proceeding, the trial
judge was required to determine "first, has there been a change
in circumstances since the most recent custody award; [and]
second, would a change in custody be in the best interests of the
children." Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921
(1983). The record establishes that the trial judge applied the
correct rule of law when determining the wife's petition.
C.
Asserting that "[t]he correct legal test as to whether
[Redford] should have been granted custody of [the daughter] was
enunciated in Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824(1986)," the husband argues that the trial judge failed to apply
that test. Although we agree that the trial judge did not
explicitly cite Bailes in his ruling, we conclude that the trial
judge committed no reversible error.
In his ruling from the bench following the ore tenus
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hearing, the trial judge made the following statements pertinent
to the issues:
The Court does have two separate cases.
We have two children. Usually when the Court
has two children and determines custody,
usually the issues are by and large the same
and more often than not the Court can just
look at it as being a single case. I'm not
able to do that here for the reasons I've
given in terms of the different relationships
that the children have. The revelation that
. . . Redford is indeed the father of [the
daughter] is an extremely important fact in
many ways. I will address that later. I
want first of all to let you know my decision
with reference to [the son] . . . . Then I
will address my decision relating to [the
daughter].
* * * * * * *
Now, the Court is going to address the
custody issue relating to [the daughter].
This is not an easy decision to make, not
that the decision with [the son] was an easy
decision to make, but we have complexities
here that create the difficulties this Court
is facing; that is . . . Redford's paternity,
the fact the Court has now established that
. . . Redford is the father of [the
daughter].
The cases are very clear in terms of the
right of a natural parent. . . . [A]s between
a natural parent and nonparent the law
presumes the best interests of the child will
be served when the child is within the
custody of the natural parents. Then there
is the additional established rule the parent
prevails unless the nonparent bears the
burden of proving by clear and convincing
evidence both that the parent is unfit and
that the best interests of the child will be
promoted by granting custody to the
nonparent. Either parent with a suitable
home has the right to custody of his child
superior to the rights of others.
* * * * * * *
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We now have in this proceeding not only
the natural mother who was a party to that
prior proceeding, but . . . Redford. The
Court finds that there has been a significant
change in circumstances, very significant
change in circumstances. And the main change
is that we have before the Court another
father, . . . Redford. Not only do we have
another father before the Court, but we have
another sister, a sibling, a half sister
. . . who has testified. We have evidence of
how . . . Redford has provided for that
child, which is an honor student and
apparently has developed quite well.
* * * * * * *
The Court, even if it applies the standard
of what is in the best interests of the child
and in doing that considering the fact that
[the husband] has been a good father to this
child -- he hasn't been perfect. There have
been some shortcomings. The Court
nevertheless feels that even if it applies
what is in the best interests of the child
standard notwithstanding the presumption that
might have applied to a natural parent as
opposed to nonparent, finds it is in the best
interests of [the daughter] that she be
placed in the custody of her natural mother
and her natural father. So that will be the
decision of the Court as to that child.
We quote extensively from the trial judge's ruling from the
bench because those statements clearly reflect that the trial
judge was aware of the factual and legal issues to be decided and
was aware of the legal standard of proof. The trial judge's
order also reflects those understandings because he ruled as
follows:
[T]he Court finds that there has been a very
significant change in circumstances since the
last custody order, that . . . Redford has
been - found to be the father of [the
daughter]; that the natural father and mother
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are together - providing a home for the child
and for the first time giving the child an
opportunity to be in the home of the natural
parents; that they are in a new home with
adequate room for the child; that by living
with them, [the daughter] will remain in the
general community where she has grown up and
will remain near the paternal grandmother's
home; that [the daughter] enjoys a closer
relationship with her mother than does [the
son]; that . . . [the daughter] has a strong
relationship with her father, . . . Redford,
and that without giving the parties a
presumption of custody as natural parents,
the best interests of [the daughter] will be
served by awarding custody of [the daughter]
to [the wife] and . . . Redford.
The husband argues in his brief that in this "custody
dispute between a parent [, Redford,] and a non-parent [, the
husband,] 'the law presumes that the child's best interests will
be served when in the custody of its parent.' Judd v. Van Horn,
195 Va. 988, 996, 81 S.E.2d 432, 436 (1954)." Thus, he contends
the trial judge's ruling reflects an error because the trial
judge did not apply this test to Redford's petition.
The trial judge's ruling clearly reflects that even if the
trial judge erred, he erred in favor of the husband by applying a
test more favorable to the husband. To rebut the presumption
favoring a parent over a non-parent, the evidence must clearly
and convincingly prove "(1) parental unfitness; (2) a previous
order of divestiture; (3) voluntary relinquishment; . . . (4)
abandonment[;]" and (5) "'special facts and circumstances . . .
constituting an extraordinary reason for taking a child from its
parent, or parents.'" Bailes, 231 Va. at 100, 340 S.E.2d at 827
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(citations omitted). Although the husband's evidence may not
have been expressly considered by the judge as evidence rebutting
the presumption favoring a natural parent, the trial judge's
ruling reflects that the evidence was considered in the trial
judge's determination of the best interests of the daughter.
By stating that he was not going to give Redford "a
presumption of custody as [a] natural [parent]," the trial judge
eliminated the husband's burden of overcoming this presumption by
clear and convincing evidence. Instead, the trial judge
considered the best interests of the child, a more stringent test
for Redford to meet. Thus, even if the trial judge erred, the
trial judge erred in favor of the husband by eliminating his
burden of overcoming the natural parent presumption and applying
a test more favorable to the husband. We find no reversible
error.
D.
The husband further argues that the evidence did not support
the trial judge's decision. In deciding this issue, we apply the
well established standard that "[w]hen the [trial judge] hears
the evidence ore tenus, [the judge's] findings are entitled to
the weight accorded a jury verdict, and they will not be
disturbed on appeal unless they are plainly wrong or without
evidence to support them." Bailes, 231 Va. at 100, 340 S.E.2d at
827.
Based upon evidence in the record, the trial judge found
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that Redford was the child's natural parent. The evidence proved
that after Redford received the DNA results, Redford promptly
filed for custody. The record contains evidence from which the
trial judge could have found that Redford, who the trial judge
found had been a good parent to his other child, was a fit
parent; that Redford had asserted his custody interest without
delay after Redford learned of the DNA results; that the
"relationships in this family are just extremely confusing and
complex"; and that special facts and circumstances establish that
"it is in the best interests of [the daughter] that she be placed
in the custody of her natural mother and her natural father."
On our review of the evidence, we cannot say that the trial
judge's findings are plainly wrong or without evidence to support
them.
E.
We do not find, as suggested by the wife and Redford, that
this appeal was so lacking in merit that attorneys' fees should
be awarded. Accordingly, we make no award of attorneys' fees for
this appeal.
For these reasons, we affirm the decree.
Affirmed
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