Joel Scott Shook v. Kathleen Ann Shook ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
JOEL SCOTT SHOOK
MEMORANDUM OPINION *
v. Record No. 2085-95-1 PER CURIAM
JULY 9, 1996
KATHLEEN ANN SHOOK
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert P. Frank, Judge
(Joel Shook, pro se, on brief).
(Kenneth B. Murov; Gary A. Mills; Kevin W.
Grierson; Jones, Blechman, Woltz & Kelly, on
brief), for appellee.
Joel Scott Shook (husband) appeals the decision of the
circuit court granting Kathleen Ann Shook (wife) custody of the
parties' son and deciding other issues. On appeal, husband
contends that (1) the trial court erred and abused its discretion
in awarding wife a divorce on the basis of a one-year separation;
(2) the trial court failed to consider Code § 20-124.3 in
determining child custody and visitation; (3) the trial court's
award of custody was contrary to the best interests of the child;
(4) the trial court's letters of November 29, 1994 and January
31, 1995 contain clear error; (5) the trial judge abused his
discretion in denying husband's motion to recuse; and (6) the
trial court erred by awarding child support arrearages to mother.
Upon reviewing the record and briefs of the parties, we conclude
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that the appeal is without merit. Accordingly, we summarily
affirm the decision of the trial court. Rule 5A:27.
Grounds for Divorce
The trial court found that husband did not prove that his
wife deserted and abandoned him. Moreover, where dual grounds
for divorce exist, the trial judge "can use his sound discretion
to select the appropriate grounds upon which he will grant the
divorce." Zinkhan v. Zinkhan, 2 Va. App. 200, 210, 342 S.E.2d
658, 663 (1986). The trial judge is not "compelled 'to give
precedence to one proven ground of divorce over another.'"
Williams v. Williams, 14 Va. App. 217, 220, 415 S.E.2d 252, 253
(1992) (citation omitted).
The evidence proved that the parties had lived separate and
apart for more than one year. Therefore, the trial court's
decision was supported by substantial, credible and competent
evidence. The trial court did not err by granting the wife a
divorce on the ground of having lived separate and apart for more
than one year.
Custody Award
"In matters concerning custody and visitation, the welfare
and best interests of the child are the 'primary, paramount, and
controlling consideration[s].'" 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,
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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).
Husband contends that the trial court failed to consider the
factors set out in Code § 20.1-124.3, particularly subsection
(6), when deciding child custody. That section provides that one
of the factors to be considered by the court is "[t]he propensity
of each parent to actively support the child's contact and
relationship with the other parent, the relative willingness and
demonstrated ability of each parent to maintain a close and
continuing relationship with the child, and the ability of each
parent to cooperate in matters affecting the child." Code
§ 20.1-124.3(6). In his letter opinion, the judge found that
"[wife] has given [husband], as well as the paternal
grandparents, access to the child pursuant to the court orders.
[Husband] has on several occasions indicated [wife] would never
see the child again. I view [husband], at this time, as being
very inflexible in cooperating with [wife] in matters affecting
the child." Therefore, the record demonstrates that the trial
court considered the parents' respective abilities to cooperate
as set out in subsection (6).
Husband also contends that the evidence fails to prove that
it was in the child's best interests for the wife to be awarded
custody. The trial judge found that husband assaulted wife,
repeatedly threatened her, and forcibly took the child from her
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and kept him for two days. Husband threatened to kidnap the
child and stated that someone would have to kill him to get the
child back. Witnesses testified that wife was a good mother and
that it would not be in the child's best interest for husband to
have custody. The guardian ad litem and a licensed clinical
psychologist who met with the parents and the child recommended
that custody be given to wife. Additionally, husband failed to
comply with the trial court's order to undergo psychiatric
testing.
The judge's letter opinion demonstrates that he considered
the statutory factors and made his decision based upon the
child's best interests. Therefore, the trial court's decision is
not plainly wrong or without evidence to support it.
Error in Opinion Letters
The parties agreed that during the October 19, 1994 hearing
the trial court did not order wife to attend parenting classes or
require her companion, Dale Foster, to move out of her apartment.
No transcript of that hearing is in the record. Although the
court's two letters, dated November 29, 1994, indicate some
confusion on these points, the January 9, 1995 order conformed to
the parties' recollection of the court's earlier oral ruling.
Moreover, in the February 3, 1995 order, the trial court found
that Foster's presence in mother's household "is not a factor to
disqualify [wife] as the custodial parent in that the
relationship between Mr. Foster and the minor child has been
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shown to be positive and in the child's best interest."
Husband alleges error in connection with a statement
contained in a letter dated January 31, 1995. No letter of that
date appears in the record. "We will not search the record for
errors in order to interpret the [husband's] contention and
correct deficiencies in a brief." Buchanan v. Buchanan, 14 Va.
App. 53, 56, 415 S.E.2d 237, 239 (1992).
Motion to Recuse
"[W]hether a trial judge should recuse himself or herself is
measured by whether he or she harbors 'such bias or prejudice as
would deny the defendant a fair trial,' and is a matter left to
the reasonable discretion of the trial court." Welsh v.
Commonwealth, 14 Va. App. 300, 315, 416 S.E.2d 451, 459-60 (1992)
(citation omitted). The trial judge's determination will be
reversed on appeal only for an abuse of discretion. Terrell v.
Commonwealth, 12 Va. App. 285, 293, 403 S.E.2d 387, 391 (1991).
"'Merely because a trial judge is familiar with a party and his
legal difficulties through prior judicial hearings . . . does not
automatically or inferentially raise the issue of bias.'" Deahl
v. Winchester Dep't. of Social Servs., 224 Va. 664, 672-73, 299
S.E.2d 863, 867 (1983) (citation omitted).
The trial judge determined that he harbored no prejudice or
bias against husband and denied husband's motion to recuse.
Husband has pointed to no specific incidents of alleged bias and,
after reviewing the record, we find no such instances.
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Therefore, no proof exists in this record that the trial judge
abused his discretion in denying father's motion for recusal.
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Support Arrearages
Child support payments become vested as they accrue, and the
court has no authority to modify past-due installments. Taylor
v. Taylor, 10 Va. App. 681, 683, 394 S.E.2d 864, 865-66 (1990).
Under Code § 20-108, a support order may be modified with respect
to any period during which there is a pending petition for
modification. Husband filed no petition to modify child support.
The trial court did not err by ordering husband to pay the child
support arrearages.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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