Graham N. Sword v. Sharon Ann Sword ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
GRAHAM N. SWORD
MEMORANDUM OPINION *
v. Record No. 0753-96-1 PER CURIAM
SEPTEMBER 17, 1996
SHARON ANN SWORD
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge
(William F. Burnside, on brief), for
appellant.
(Edward J. Pontifex, Jr., on brief), for
appellee.
Graham N. Sword (father) appeals the decision of the circuit
court awarding custody of the parties' youngest child to Sharon
Ann Sword (mother). Father raises four questions on appeal which
may be summarized as whether there was sufficient evidence to
prove that the child's best interests warranted the award of
custody to mother. 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.
Rule 5A:27.
"When addressing matters concerning a child . . . the
paramount consideration of a trial court is the child's best
interests." Logan v. Fairfax County Dep't of Human Dev., 13 Va.
App. 123, 128, 409 S.E.2d 460, 463 (1991). See Code § 20-124.3.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
"'In matters of a child's welfare, trial courts are vested with
broad discretion in making the decisions necessary to guard and
to foster a child's best interests.'" Logan, 13 Va. App. at 128,
409 S.E.2d at 463 (citations omitted).
Although a child's preference "should be
considered and given appropriate weight," it
does not control the custody determination
and is just one factor to be considered. As
long as the trial court examines the factors,
it is not "required to quantify or elaborate
exactly what weight or consideration it has
given to each of the statutory factors."
Sargent v. Sargent, 20 Va. App. 694, 702, 460 S.E.2d 596, 599
(1995) (citations omitted).
The commissioner who conducted the ore tenus hearing also
spoke in camera with the child. The commissioner's report
demonstrates that he considered the factors set out in Code
§ 20-124.3 before recommending the custody arrangement he found
to be in the child's best interests. Based upon the statutory
factors and the evidence, the commissioner recommended a split
custody arrangement, with father having legal and physical
custody of the older son pursuant to the parties' agreement and
mother retaining legal and physical custody of the younger son.
On appeal, father contends that the evidence demonstrates
that the child's best interests would be better served by
awarding him custody. Father alleges that mother interfered with
his visitation and telephone contact with the child. He also
contends that mother's romantic relationship created an immoral
environment, and her relocations to be near her boyfriend
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demonstrated a propensity to ignore the relationship between
father and son.
However, the evidence indicated that mother had been
actively involved in the child's life both before and after the
parties' separation. Mother encouraged his involvement in Boy
Scouts and participated in his schooling. While father alleged
mother interfered with visitation, there was evidence that father
failed to communicate his plans to mother and that the child was
reluctant to visit with father. The commissioner found the child
to be "of reasonable intelligence, understanding, age and
experience" so as to be able to express a preference in his
living arrangement. Mother testified that she and her boyfriend
hoped to marry, although she admitted her romantic involvement
was adulterous.
Evidence supports the decision of the trial court overruling
father's objections and affirming the commissioner's
recommendation. We will not overturn the decision, based upon
evidence heard ore tenus, absent clear error or abuse of
discretion.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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