Daphne Burke Ramsey, f/k/a v. Robert E. Clements ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and McClanahan
Argued at Salem, Virginia
DAPHNE BURKE RAMSEY, F/K/A
DAPHNE M. CLEMENTS
MEMORANDUM OPINION * BY
v. Record No. 2988-02-3 JUDGE ELIZABETH A. McCLANAHAN
JULY 22, 2003
ROBERT E. CLEMENTS
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
John C. Wirth (Victor M. Santos; Victor V.
Ludwig; Nelson, McPherson, Summers &
Santos, L.C., on brief), for appellant.
No brief or argument for appellee.
Daphne Burke Ramsey (mother) appeals the trial court's
decision denying her motion for a change in custody of her
daughter. Custody had been granted to the child's father,
Robert E. Clements (father), through a separation agreement
incorporated into the parties' divorce decree. Mother raises
two questions on appeal: (1) whether the trial court erred in
refusing to apply the law applicable to custody disputes between
biological parents and a third party after finding that the
child was being raised "primarily" by her grandparents; and
(2) whether the trial court erred in its application of the law
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
where one parent delegated custody of the child to a third
party. For the reasons that follow, we affirm the judgment of
the trial court.
I. Background
The parties were married in 1994, and had one child
together in 1995. After separating and filing for divorce in
April 1999, on May 26, 1999, in lieu of a custody hearing, the
parents executed a separation agreement in which they agreed
that father would have custody of the child. On July 15, 1999,
mother filed a motion to set aside the agreement, which the
trial court denied. The couple's divorce decree was entered in
February 2000, and it ordered custody to the father.
On August 8, 2002, mother filed a motion seeking legal and
primary physical custody of the child and child support on the
grounds that there had been a material change in circumstances
and that it would be in the best interests of the child. On
September 4, 2002, the trial court held a hearing on the motion,
where mother appeared in person and by counsel, and father
appeared pro se. The record contains a written statement of the
facts.
According to the statement of facts, father testified that
the child resides with him but spends, on average, one-half of
the time with her paternal grandparents. He also testified that
the couple lived, with the grandparents for the first year of
the child's life and that the grandmother has provided daycare
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for the child since birth. He stated that the grandmother had
been retrieving the child from the school bus and that the child
has a close relationship with her grandparents. The
grandparents have been handling visitation between the child and
her mother because father and mother have confrontations when
they have contact. Father's current wife corroborated father's
testimony that the child spends about one-half of her time with
her grandparents. Father resides approximately five minutes
away from grandparents.
Grandfather testified at hearing that the child spent every
night with father until January 2002, when an incident occurred
on the school bus that caused the child not to ride the school
bus thereafter. Since that problem occurred, the child has been
spending most school nights with her grandparents.
A private investigator employed by mother testified that on
twenty occasions between February and September 2002 he
conducted surveillance on the grandparents' dwelling and
observed that in each instance the child spent the night with
her grandparents. He also stated that his surveillance occurred
during the school year, and did not include summer vacation.
Mother testified that she has remarried and has a child
with her current husband. She introduced a school record that
requires the child's custodian to initial that the child has
completed each evening's home reading assignments. Father's
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initials do not appear on the assignment record after January
22, 2002.
Every witness testified that the child is doing well
overall. Further, she is performing well in school, is in good
physical health and has no apparent emotional problems.
On October 15, 2002, the trial court entered an order
denying mother's motion for a change in custody. The order
stated,
the Court, having considered the evidence
and the statutory provisions . . . finds, by
a preponderance of the evidence, that
[child] is primarily being raised by her
grandparents; that she is doing well with
her grandparents and that the best interest
of the child would be served by
continuing the present arrangement . . . .
The order also expanded mother's visitation rights beyond those
set forth in the parties' separation agreement. This appeal on
custody followed.
II. Analysis
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 child 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
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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).
A 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. Venable
v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986).
"'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)
(citations omitted).
In matters concerning custody, the welfare and best
interests of the child are the "primary, paramount and
controlling considerations." Kogon v. Ulerick, 12 Va. App. 595,
596, 405 S.E.2d 441, 442 (1991). The statute reflects the
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importance placed upon securing the best interests of the child,
whose interests, in the final analysis, must be protected by the
courts. Code § 20-124.2(B) ("In determining custody, the court
shall give primary consideration to the best interests of the
child."); see also Keel, 225 Va. at 612, 303 S.E.2d at 921.
Mother argues that once the trial court found that the
grandparents were raising the child, it should have applied the
law applicable to custody disputes between biological parents
and a third party. We disagree with this assertion. Legal and
physical custody of the child remains with the father and has
not changed since the parties signed their separation agreement.
The grandparents are not a party to this matter. Furthermore,
the grandparents had never been awarded legal custody or
visitation rights, nor were they awarded custody or visitation
rights in the trial court proceeding at issue here. Therefore,
third party custody and visitation law does not apply to this
case. See Code § 20-124.2(B); Williams v. Williams, 256 Va. 19,
501 S.E.2d 417 (1998). The trial court correctly did not apply
it.
The trial court considered changes in circumstances. The
child is being primarily raised by her grandparents. The
testimony indicates this is done for the child's convenience
during the school year. Mother has remarried and has a child by
her current husband. In spite of the changes, the trial court
found that the best interests of the child would be served by
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leaving the child in the custody of her father. We find no
abuse of discretion by the trial judge. Because the evidence
supports the trial court's decision, we find no error and
affirm.
Affirmed.
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