Vickie Stoneman v. Greg Stoneman ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Elder
Argued at Richmond, Virginia
VICKIE STONEMAN
MEMORANDUM OPINION * BY
v. Record No. 0735-98-2 JUDGE JAMES W. BENTON, JR.
APRIL 27, 1999
GREG STONEMAN
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H.C. Taylor, Judge
Deanna D. Cook (Bremner, Janus & Cook, on
brief), for appellant.
Carl J. Witmeyer, II (Chalkley & Whitmeyer,
L.L.P., on brief), for appellee.
This appeal arises from the trial judge's order granting Greg
Stoneman joint legal custody of three children born during his
previous marriage. Vickie Stoneman, the children's mother,
contends the trial judge erred in granting the motion because the
circumstances had not materially changed and joint legal custody
was not in the best interests of the children. She also contends
that the trial judge erred in ordering the continuing service of a
guardian ad litem. For the reasons that follow, we affirm the
order.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
I.
Greg and Vickie Stoneman were divorced by a final decree
entered in the Circuit Court of Henrico County in 1994. The
decree awarded the mother sole legal custody of the children and
remanded other custody related issues to the juvenile and domestic
relations district court. Although the initial proceedings arose
in Henrico County, at some juncture the matter was apparently
referred to the courts in Hanover County, where, in 1996, the
father filed a petition in the juvenile and domestic relations
court. At the request of the parties, a judge of the Hanover
County juvenile court entered a consent order continuing the
mother's sole custody of the children and allocating specific
visitation rights to the father. The consent order also directed
a guardian ad litem to continue representing the interests of the
children and to assist the parties in "promot[ing] a more unified
living arrangement for the children when they are with each
party."
Six months after entry of the consent order, the father
petitioned the juvenile court to order the parties to undergo
psychiatric evaluations and alleged in the petition that the
mother "has demonstrated unusual behavior." The guardian ad litem
filed a report supporting the evaluations. Over the mother's
objection, the judge ordered psychiatric evaluations and took
under advisement the father's motion to change custody. After a
psychologist met with the parties and filed his "Psychological
- 2 -
Evaluation" reports, the judge denied the father's motion for a
change in custody.
The father appealed the decision to the circuit court.
Following an evidentiary hearing, the trial judge awarded the
parties joint legal custody of the children and ordered the
continued services of the guardian ad litem. The mother appeals
that order.
II.
After entry of a divorce decree containing child custody
provisions, a judge 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 children may require." Code § 20-108. The
standard is well established for decisions concerning change in
custody.
A trial [judge], in determining whether a
change of custody should be made, must apply
a two-pronged test: (1) whether there has
been a [material] change in circumstances
since the most recent custody award; and (2)
whether a change in custody would be in the
best interests of the child. Whether a
change of circumstances exists is a factual
finding that will not be disturbed on appeal
if the finding is supported by credible
evidence.
Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986)
(citation omitted).
The record in this case clearly establishes the existence
of a material change in circumstances. The guardian ad litem
- 3 -
filed a four page report supporting the father's motion for
evaluations. That report detailed the difficulties that the
parties had experienced in conducting themselves in accord with
the 1996 custody order. In the portion of the report styled
"Recommendation," the guardian ad litem provided a substantial
basis to support the trial judge's finding that a change in
material circumstances occurred after entry of the consent
order. Furthermore, the psychological evaluations that were
performed and filed as evidence, and the testimony of the
parties, provided a basis upon which the trial judge could have
found that the parties were unable to comply with the mandates
of the consent order. Thus, credible evidence in the record
supports the finding of changed circumstances.
III.
"In matters of custody, . . . 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). "In
determining the best interests of the children, a court must
consider all the evidence and facts before it." Venable v.
Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986).
Furthermore, the principle is well established that "the trial
[judge'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." Id.- 4 -
At the evidentiary hearing, the trial judge heard testimony
concerning the nature of the parties' relationship with each
other and the effect of their relationship upon the decision
making process concerning their children. The trial judge also
considered the psychological evaluations that had been prepared
as a result of the juvenile court judge's order, the report of
the guardian ad litem, and the oral recommendation of the
guardian ad litem. The guardian ad litem, who had sought to
assist the parties pursuant to the consent order, stated that
"joint legal custody would help in this case." Furthermore, the
evidence proved that both parties are fit custodians for the
children.
The psychological evaluations, the guardian ad litem's
report, and the parties' testimony provide credible evidence to
support the trial judge's finding that the existing arrangement
was not satisfactory and did not provide the best environment
for the development of the children. The trial judge concluded
that the children's best interests would be served by a custody
arrangement in which the father was apprised of child rearing
decisions and was able to have input prior to the implementation
of the decisions. "[J]oint legal custody [is a status] where
both parents retain joint responsibility for the care and
control of the child and joint authority to make decisions
concerning the child even though the child's primary residence
may be with only one parent." Code § 20-124.1.
- 5 -
Upon this record, we conclude that the evidence supports
the finding that the change to joint legal custody would be in
the best interests of the children and would encourage the
parents to better share in the responsibilities of rearing their
children.
IV.
The trial judge did not abuse his discretion in ordering
the guardian ad litem "to continue to monitor compliance with
. . . [the joint legal custody] Order." In the October 28, 1996
consent order, the parties requested the appointment of the
guardian ad litem to represent the interests of the children and
to facilitate the parties in reaching "a more unified living
arrangement for the children when they are with each party."
Cf. Code § 16.1-266(D) (authorizing the judge of the juvenile
court to exercise discretion to appoint a guardian ad litem).
Based upon the guardian ad litem's role as initially agreed upon
by the parties, we cannot say that the trial judge abused his
discretion in finding that the continued presence of the
guardian ad litem was in the children's best interests and
consistent with the parties' intention as represented in the
consent order.
Accordingly, we affirm the order.
Affirmed.
- 6 -