Virginia Bonds v. Marvin Anderson ( 1996 )


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  •                    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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