Patricia Pavel v. Thomas F. Pavel ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia
PATRICIA PAVEL
MEMORANDUM OPINION * BY
v. Record No. 1343-96-4 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 11, 1997
THOMAS F. PAVEL
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert W. Wooldridge, Jr., Judge
Mark B. Sandground, Sr.; Timothy S. Bird
(Sandground, Barondess, West & New, P.C., on
brief), for appellant.
William B. Reichhardt (M. Lee Anne
Washington; Surovell, Jackson, Colten &
Dugan, P.C., on brief), for appellee.
On appeal from an order enjoining her from moving with her
children to Buffalo, New York, Patricia Pavel contends that the
trial court erred in granting the injunction. We find no error
and affirm the judgment of the trial court.
Patricia and Thomas Pavel were married on October 11, 1986.
They have three daughters, born in March, 1989, May, 1990 and
May, 1994. They separated in August, 1994. A final decree of
divorce was entered on May 28, 1996 on the ground of Mr. Pavel's
adultery. In October, 1995, the parties agreed that Mrs. Pavel
should have sole physical and legal custody of the children. Mr.
Pavel was to enjoy liberal visitation rights. A custody order
reflecting this agreement was entered by the trial court on
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
December 1, 1995.
On March 12, 1996, Mrs. Pavel notified Mr. Pavel that she
intended to relocate to Buffalo, New York with the children.
Mrs. Pavel gave two reasons for moving: a lower cost of living,
and emotional support from friends and family there. Mr. Pavel
moved to prohibit the move, and, alternatively, sought primary
physical custody of the children. Following an ore tenus
hearing, the chancellor enjoined Mrs. Pavel from moving the
children to Buffalo.
It is well settled law that a court may
forbid a custodial parent from removing a
child from the state without the court's
permission, Carpenter v. Carpenter, 220 Va.
299, 302, 257 S.E.2d 845, 847 (1979), or it
may permit the child to be removed from the
state. Gray v. Gray, 228 Va. 696, 698-99,
324 S.E.2d 677, 678 (1985); Simmons v.
Simmons, 1 Va. App. 358, 364, 339 S.E.2d 198,
201 (1986). In making such a determination,
the court determines whether the relocation
would be in the child's best interest.
Scinaldi v. Scinaldi, 2 Va. App. 571, 573,
347 S.E.2d 149, 150 (1986).
Hughes v. Gentry, 18 Va. App. 318, 322, 443 S.E.2d 448, 451
(1994).
When the chancellor's decision is based upon an ore tenus
hearing, it is entitled to great weight and will not be disturbed
on appeal unless it is plainly wrong or without evidence to
support it. Simmons, 1 Va. App. at 361, 339 S.E.2d at 199.
Therefore, in this appeal we must examine the record to ascertain
whether the trial court's decision, based upon its determination
of the best interests of the children, is plainly wrong or
- 2 -
without evidence to support it.
Mrs. Pavel argues that allowing her to move her daughters to
Buffalo would be in the children's best interest. She notes that
Buffalo has a lower cost of living than northern Virginia and
that she has family and friends in Buffalo. She argues that her
children would share in her increased emotional strength, which
would result from her greater financial stability and her
proximity to family members.
The trial court acknowledged Mrs. Pavel's wish to relocate
and stated that:
There is no doubt that it is in Mrs. Pavel's
best interest to move to the Buffalo area.
It is more affordable to live there. She
desires the support of her family. She
understandably wants to leave behind her
recent memories of this area. To some extent
those motivations translate into benefits for
the children. More tangible things might be
affordable. They could be part of an even
closer family network. Having a happier
mother would make the children's lives
easier.
But these benefits must be weighed against
the single, important detriment to such a
move: the reduction, if not loss, of a
significant relationship with their father.
The trial court found that Mr. Pavel would be able to
maintain "some relationship" with his children if they moved to
Buffalo and that "[t]he financial cost of doing so would be
inconsequential relative to its importance and his financial
resources." Yet, in deciding whether to permit or prohibit the
custodial parent from moving to another state, a court must be
- 3 -
concerned not so much with the relative costs and benefits that
would inure to either parent as with the best interests of the
child.
Mrs. Pavel argues that in determining the children's best
interests, we should selectively disregard the testimony of Dr.
Zuckerman, a clinical psychologist and the children's therapist,
and the trial court's reliance upon his professional expertise.
In support of this argument, Mrs. Pavel relies upon Scinaldi v.
Scinaldi, 2 Va. App. 571, 347 S.E.2d 149 (1986).
In Scinaldi, we reversed the trial court's decision to
enjoin the custodial parent from moving to New York. We
concluded that the trial court's findings failed to address the
best interests of the children, focusing instead upon the
custodial parent's motivations for moving, the non-custodial
parent's devotion to his children, and the inherent difficulty in
maintaining a long distance relationship. We discounted the
testimony of a social worker who had seen the children on but one
occasion and had concluded that they would benefit from receiving
"maximum time" with both parents. The social worker did not
"suggest that 'maximum time' with the children could not be
accomplished through extended visitation instead of requiring
that they live in the same community as the father." Id. at 576,
347 S.E.2d at 152.
Beyond the facially similar factual situations present in
this case and Scinaldi, the two cases are distinguishable. In
- 4 -
contrast to the trial court in Scinaldi, the chancellor in this
case stated that: "the test of whether Mrs. Pavel and the
children should be allowed to move to Buffalo is not whether Mrs.
Pavel's reasons for doing so are valid . . . [r]ather, the test
is whether it is in the best interest of her children that they
move." Viewing the record in this correct context, we conclude
that the trial court's decision was not plainly wrong or without
evidence to support it.
Dr. Zuckerman testified that the children are presently
better served by frequent contacts with Mr. Pavel of short
duration, rather than by infrequent contacts of longer duration.
While Dr. Zuckerman did not have extensive contact with Mr.
Pavel in the months leading up to the hearing, his opinions were
premised upon numerous therapy sessions with the children, his
relationships with Mr. and Mrs. Pavel, and his professional
judgment. Due to the children's relatively young ages, the trial
court found that they need frequent contact with Mr. Pavel in
order to both develop and sustain a relationship with him. The
chancellor determined that any relationship that the children
would have with their father in Buffalo would be "qualitatively
inferior to the relationship they could develop [if they lived]
close by," and declined to jeopardize the children's newly-found
stability and adjustment to their parents' divorce. While
stating that "Mr. Pavel has been very far from a model father (or
husband)," the trial court concluded that the children's best
- 5 -
interests required that they have a close relationship with their
father.
Because the evidence supports the trial court's finding that
the benefits of a good relationship between Mr. Pavel and his
children cannot be accomplished adequately if Mrs. Pavel moves to
New York at the present time, the trial court did not abuse its
discretion in denying Mrs. Pavel the right to choose where she
and her children would reside. See id. at 575, 347 S.E.2d at
151. Accordingly, we affirm the judgment of the trial court.
Affirmed.
- 6 -