Sharone Deni Biosseau v. James Maurice Scott ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
SHARONE DENI BOISSEAU
MEMORANDUM OPINION *
v. Record No. 2407-95-2 PER CURIAM
OCTOBER 22, 1996
JAMES MAURICE SCOTT
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L. A. Harris, Jr., Judge
Marilynn C. Goss (Central Virginia Legal Aid
Society, Inc., on brief), for appellant.
G. Ronald Grubbs, Jr., for appellee.
Sharone Deni Boisseau appeals the decision of the circuit
court awarding physical custody of the parties' child to James
Maurice Scott. Appellant raises three questions on appeal:
(1) whether the trial court erred in denying appellant's motion
for a continuance and motion to rehear; (2) whether the trial
court erred in finding that a change of custody was in the best
interests of the child; and (3) whether the trial court erred in
finding appellant's relocation to Williamsburg was sufficient
grounds to change custody. We conclude that there is sufficient
evidence in the record to support the circuit court's findings
and, accordingly, affirm the decision.
On April 19, 1995, the Henrico Juvenile and Domestic
Relations District Court awarded appellant custody of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
parties' son, Che' Mandell Boisseau, and child support payments
of $215. The child's father, James Maurice Scott, appealed the
decision to the Circuit Court of Henrico County.
At the circuit court hearing on August 28, 1995, appellant
appeared pro se and appellee appeared in person and by counsel.
Appellant requested a continuance to obtain counsel, explaining
that she had only been able to get an appointment with legal aid
for the morning of the hearing. The court, after questioning
appellant about her efforts to obtain counsel, denied the motion.
Appellant proceeded to put on her case, examining three of her
own witnesses and cross-examining appellee and his witnesses.
Appellant's witnesses testified that appellant had been the
primary caretaker of the child and had provided for her son's
physical and emotional needs. Appellant testified that she had
recently relocated with her parents and son to Williamsburg.
Appellant explained that she moved in order to get away from the
"verbal abuse" of appellee. Appellee denied verbally abusing
appellant, and the parties disagreed as to whether notice had
been given to appellee of appellant's relocation.
Appellee put on evidence of his positive and continuous
relationship with his son. Appellee also testified that he had
regularly and willingly paid $25 a week in support for his son.
Appellant asserted that appellee had verbally abused her and
occasionally refused to give her funds. It was also established
that appellee had fathered two other sons by two different
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mothers and that appellee had never been married to either
mother. Appellee's current wife, with whom appellee has had no
children, testified that she would welcome Che' Mandell Boisseau
into her home.
The court announced that it would award joint legal custody
to the parties and would take under advisement the issue of
physical custody. A new hearing date was set for September 18,
1995. At the September 18 hearing appellant again appeared pro
se and the appellee appeared in person and by counsel. After
questioning appellant about her current place of residence and
learning that she still resided in Williamsburg and had taken
steps to enroll her son in school there, the court announced its
decision, awarding sole physical custody to appellee. The order
was entered on September 20, 1995, and on that day, appellant, by
counsel, filed a Motion to Stay the Order Transferring Custody
and Grant a Rehearing. Appellant's motion was argued October 10,
1995, where both parties were represented by counsel. The
circuit court denied the motion.
Motion for Continuance
"'The decision whether to grant a continuance is a matter
within the sound discretion of the trial court. Abuse of
discretion and prejudice to the complaining party are essential
to reversal.'" Lowery v. Commonwealth, 9 Va. App. 304, 307, 387
S.E.2d 508, 509 (1990) (citation omitted). See Autry v. Bryan,
224 Va. 451, 454, 297 S.E.2d 690, 691-92 (1982).
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The record demonstrates that appellee appealed the district
court's order on April 20, 1995. Appellant appeared without
counsel at the July 10, 1995 docket call. When the trial date
was set, the court urged appellant to retain counsel. On the
August 28, 1995 trial date, appellant came to court with three
witnesses but requested a continuance to obtain counsel. The
appellee was present with counsel and witnesses. The court
denied her motion, but granted her substantial latitude in the
presentation of her case. Although the trial judge set another
hearing date and took under advisement the question of physical
custody of the child, appellant failed to obtain counsel for that
hearing. Only after the court entered judgment, did appellant
obtain counsel, who filed a motion to rehear, alleging that
appellant tried to obtain counsel immediately after the July
docket call, but the earliest appointment she could get was for
the day of trial.
Appellant has not demonstrated that the trial court abused
its discretion in denying her motion for a continuance or that
she was prejudiced by the denial. The record established that
both parties had witnesses present and that appellant had been
earlier urged to come to court with counsel. Appellant called
witnesses in her own behalf, testified herself, and
cross-examined the witnesses called by appellee as well as
appellee himself. Therefore, the trial court did not abuse its
discretion in denying appellant's request for a continuance.
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Best Interests of the Child
"In matters concerning custody and visitation, 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) (citation omitted). The trial
court is vested with broad discretion to make the decisions
necessary to safeguard and promote the child's best interests,
and its decision will not be set aside unless plainly wrong or
without evidence to support it. Farley v. Farley, 9 Va. App.
326, 327-28, 387 S.E.2d 794, 795 (1990).
The trial court ruled that the best interests of the child
would be served by granting physical custody to appellee. The
evidence demonstrated that appellee and his new wife lived in a
three-bedroom home. Both parents were college-educated and had
stable jobs. Appellee had made arrangements for his child to
attend the local school and participate in neighborhood sports
activities. Witnesses testified that appellee was involved with
his son and had a good relationship with him. Appellee's new
wife testified that her ten-year-old son currently lived with
them and got along well with appellee's son and that she was
supportive of appellee's desire to have his son live with them.
Appellant's witnesses testified that she was a good mother
who was actively involved with her son's school and regularly
took him to church. Appellant testified that, although she was
presently unemployed, in the past five years she had worked
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through agencies doing day work, babysitting, and cleaning.
Appellant lived with her disabled parents and had done so for a
number of years. They lived in an apartment in the Richmond area
and had recently moved to another apartment in Williamsburg. The
testimony indicated that appellant and her parents had relocated
to Williamsburg "because 'she felt like it.'" Appellant
testified that the move "was only temporary" and she intended to
return "sometime."
The trial court noted that it considered the evidence heard
ore tenus as well as the statutory factors set out in Code
§§ 20-124.2 and 20-123.3 before determining that it was in the
best interests of the child to award physical custody to
appellee. Credible evidence supports the finding of the trial
court.
Appellant's Relocation
The trial court questioned why appellant relocated from the
Richmond area to the Williamsburg area. Appellant alleged that
appellee had subjected her to verbal abuse. Appellant's
witnesses indicated that appellant moved merely because she
wanted to do so, and appellant herself indicated that the move
was only temporary. Appellee denied any verbal abuse and
testified that appellant had been less cooperative in
facilitating visitation when she learned he was getting married.
The court found that the move to Williamsburg was
detrimental to the child's best interests, and continued the
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matter to allow appellant to return with the child to the
Richmond area before ruling on physical custody. At the
subsequent hearing, appellant appeared without counsel and
indicated that she had enrolled the child in school in
Williamsburg.
Credible evidence supports that trial court's determination
that appellant's move away from the area where the child had the
opportunity to have a substantial relationship with his father
was not in the child's best interests. Appellee's home was
stable and provided the benefits of a neighborhood setting with
additional activities appropriate for children. Moreover, the
evidence proved that the appellant was unemployed and did not
prove that the "temporary" move to Williamsburg provided any
benefit to the child.
Prior to the filing of the custody petition in the juvenile
and domestic relations district court, no court order existed
determining custody of the child. Thus, appellee was entitled to
a de novo hearing in the circuit court upon his appeal from the
initial custody determination by the juvenile court. Peple v.
Peple, 5 Va. App. 414, 419, 364 S.E.2d 232, 236 (1988). "A de
novo hearing means a trial anew, with the burden of proof
remaining upon the party with whom it rested in the juvenile
court." Parish v. Spaulding, 20 Va. App. 130, 132, 455 S.E.2d
728, 729 (1995) (citations omitted). At the de novo hearing, the
primary issue was the best interests of the child. Kogon, 12 Va.
7App. at 596, 405 S.E.2d at 442.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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