Virginia Bonds v. Marvin Anderson ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia
VIRGINIA BONDS
MEMORANDUM OPINION * BY
v. Record No. 2445-95-1 JUDGE RICHARD S. BRAY
JULY 16, 1996
MARVIN ANDERSON
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
Anthony L. Montagna, Jr. (Montagna &
Montagna, P.C., on brief), for appellant.
Stuart R. Gordon for appellee.
Virginia Bonds appeals the trial court's order awarding
Marvin Anderson custody of his natural child, Monte D'Artis.
Bonds, the child's maternal grandmother, complains on appeal that
(1) the evidence rebutted the legal presumption which favored
custody in Anderson, and (2) the trial court erroneously
overruled her motion for an issue out of chancery. Finding no
error, we affirm the trial court.
The parties are fully conversant with the record, and we
recite only those facts necessary to a disposition of this
appeal. In accordance with well established principles, we
review the evidence on appeal in the light most favorable to the
party prevailing below, Anderson in this instance. Bottoms v.
Bottoms, 249 Va. 410, 414, 457 S.E.2d 102, 105 (1995).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Monte D'Artis was born to Felicia Bonds (mother), daughter
of Virginia Bonds, and Marvin Anderson on February 12, 1992.
Monte's parents never married, but were cohabitating together at
the time of his birth. In late 1993, mother and Anderson
separated, and mother retained custody of Monte, supporting him
without Anderson's assistance or attention. Several months
thereafter, Anderson relocated to Florida, residing there with
his fiancee, Lisa Smith. On December 10, 1994, mother was
fatally injured in an automobile accident, and both Anderson and
Bonds petitioned for custody of Monte. Anderson prevailed in the
trial court, hence this appeal by Bonds.
The record discloses that Anderson was employed as a night
watchman in Florida, earning approximately $9,000 per year while
pursuing education as a "pharmacist assistant." He projected an
annual salary of approximately $28,000 upon completion of the
training program. Anderson was initially vested with custody of
Monte by temporary order of February 8, 1995, and has since
provided the child with care, supervision and support.
Anderson's fiancee assists him with Monte, including related care
and support. The three reside in a two-bedroom apartment
adequate for Monte's needs, although Anderson and his fiancee
cohabit without the benefit of marriage.
Bonds was the child's primary caretaker from the time of his
mother's death until Anderson assumed custody. She holds a
bachelor's degree in social work and earns approximately $37,000
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per year as a rehabilitation counselor. It is uncontroverted
that she could provide a suitable home for Monte. Bonds'
evidence included testimony that Anderson once "picked the child
up from the floor" and "slammed him up against . . . the corner
of a door and a wall" and had displayed violent and abusive
conduct in his relationships with others, perhaps encouraging
such behavior in Monte. Bonds contends that Anderson's history
of personal and financial neglect of the child prior to the
mother's death evinced an indifference to Monte's well-being.
Moreover, she condemns Anderson's "meretricious relationship"
with his fiancee and its immoral influence on the child.
CUSTODY
"In all child custody cases, including those between a
parent and a non-parent, 'the best interests of the child are
paramount and form the lodestar for the guidance of the court in
determining the dispute.'" Bailes v. Sours, 231 Va. 96, 99, 340
S.E.2d 824, 826 (1986) (citation omitted). Where both a parent
and non-parent seek custody of a child, "'the law presumes that
the child's best interests will be served when in the custody of
its parent.'" Bottoms, 249 Va. at 413, 457 S.E.2d at 104
(citation omitted).
"Although the presumption favoring a parent over a
non-parent is a strong one, it is rebutted when certain factors
are established by clear and convincing evidence." Bailes, 231
Va. at 100, 340 S.E.2d at 827. Such factors include (1) parental
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unfitness; (2) a previous order of divestiture; (3) voluntary
relinquishment; (4) abandonment; and (5) a finding of "'special
facts and circumstances . . . constituting an extraordinary
reason for taking a child from its parent, or parents.'" Id.
(citations omitted). Circumstances to be "weighed in determining
[parental] unfitness" include (1) "parent[al] misconduct that
affects the child," (2) "neglect of the child," (3) "a
demonstrated unwillingness and inability to promote the emotional
and physical well-being of the child," (4) "nature of the home
environment," and (5) "moral climate in which the child is to be
raised." Bottoms, 249 Va. at 419, 457 S.E.2d at 107.
Here, the record reflects that Anderson had obtained
employment in Florida while pursuing an education. He was
regularly involved in the child's care and provided an adequate
home and attendant support for Monte. While regrettable, there
is no evidence that Anderson's cohabitation with his fiancee has
visited any adverse effect on the child. See Sutherland v.
Sutherland, 14 Va. App. 42, 43, 414 S.E.2d 617, 618 (1992).
"[W]e presume the trial court thoroughly weighed all the
evidence and decreed custody as it believed would be to the best
interest of the child." Id. at 44, 414 S.E.2d at 618.
"'Where . . . the court hears the evidence ore tenus, its finding
is entitled to great weight and will not be disturbed on appeal
unless plainly wrong or without evidence to support it.'"
Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630,
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631 (1988) (citation omitted). Here, the record provides
sufficient support for the trial court's finding that Bonds
failed to overcome by clear and convincing evidence the
presumption that custody in Anderson best served Monte's
interests and, therefore, we are constrained to affirm the
disputed order. 1
ISSUE OUT OF CHANCERY
Code § 8.01-336(E) provides that "[i]n any suit in equity,
the court may . . . direct an issue to be tried by a jury" if it
appears that "the case will be rendered doubtful by conflicting
evidence . . . ." However, the decision is entrusted to the
sound discretion of the trial court and its determination will
not be reversed absent an abuse of such discretion. Code
§ 16.1-296; Hur v. Virginia Dep't of Social Servs., 13 Va. App.
54, 58, 409 S.E.2d 454, 457 (1991).
In overruling Bonds' motion in this instance, the court
determined that the "issues posed . . . [were] not such to keep a
chancellor from properly exercising his or her discretion on
sound legal principles of reason and justice . . . ." Our review
of the record does not reflect that the factual issues "were
necessarily more appropriate for a jury than for the judge" and,
thus, find no abuse of discretion in the court's ruling. Edwards
v. County of Arlington, 5 Va. App. 294, 314, 361 S.E.2d 644, 655
1
The record establishes that Bonds was also a suitable
custodian for Monte.
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(1987).
Accordingly, we affirm the trial court.
Affirmed.
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