Kiamalia Emerson v. John S Emerson ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, McClanahan and Senior Judge Coleman
KIAMALIA EMERSON
MEMORANDUM OPINION*
v. Record No. 0566-03-4 PER CURIAM
SEPTEMBER 16, 2003
JOHN S. EMERSON
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
(Michael A. Ward, on briefs), for appellant.
(Richard A. Gray; Odin, Feldman & Pittleman,
P.C., on brief), for appellee.
Kiamalia Emerson (mother) appeals the February 21, 2003 order
of the circuit court awarding mother and John S. Emerson (father)
joint custody of Darien John Emerson (son), their minor son. On
appeal, mother contends the trial court erred by (1) failing to
grant her sole legal custody of son, (2) "granting to father
authority to make the final decision on any issues concerning
Darien on which the parties are unable to agree," and (3) failing
to award mother primary physical custody of son. Upon reviewing
the record and briefs of the parties, we conclude that this appeal
is without merit. Accordingly, we summarily affirm the decision
of the trial court. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Background
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to appellee as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
So viewed, the evidence proved the parties married on
October 2, 1999. Son was born on April 12, 2001. On or about
March 6, 2002, mother filed her bill of complaint seeking a
divorce from father.
At the time of the custody hearing, mother lived in a
one-bedroom apartment which she shared with up to five other
people. Father resided in larger living quarters. Both parents
provided emotional and financial support for son and have a
strong relationship with the child. Neither party has any
emotional or physical disability. The court found father was
more willing to co-parent than mother.
Police Officer Richard Field testified he reported to the
parties' residence three times in 2002 before their separation,
on reports of a domestic disturbance. Father called the police
on two of the three occasions. Field explained he observed no
evidence of domestic abuse on his visits.
The trial court found the testimony of mother's witnesses'
"programmed" and not "very credible." The court discounted
mother's unsubstantiated accounts of father's excessive alcohol
consumption and abuse.
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Analysis
"In matters of custody, visitation, and related child care
issues, the court's paramount concern is always the best
interests of the child." Farley v. Farley, 9 Va. App. 326,
327-28, 387 S.E.2d 794, 795 (1990). "A trial court's
determination of a child's best interests '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.'" Vissicchio v. Vissicchio, 27 Va. App.
240, 246, 498 S.E.2d 425, 428 (1998) (citations omitted). "We
defer to the trial court's evaluation of the credibility of the
witnesses who testify ore tenus." Shackelford v. Shackelford,
39 Va. App. 201, 208, 571 S.E.2d 917, 920 (2002).
The trial court found mother's witnesses were not credible.
The court considered all the factors in Code § 20-124.3 and
concluded those factors favored neither parent overwhelmingly.
Father's living situation and willingness to work with mother
favored father. The court concluded, based upon a careful
consideration of the factors and the extensive testimonial
evidence, that it was not in son's best interests "that one
parent have primary physical custody." Therefore, the court
ordered shared legal and physical custody. The advantage to the
father in the weighing of the statutory factors supports the
court's decision to grant father the authority to make final
decision on any issues on which the parties cannot agree. The
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trial court did not abuse its discretion, and its decision was
not plainly wrong or without evidence to support it.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
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