Gregory A. Haase v. Karen U. Haase ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, * Elder and Senior Judge Duff
GREGORY A. HAASE
v. Record No. 1175-94-1 OPINION BY
JUDGE LAWRENCE L. KOONTZ, JR.
KAREN U. HAASE AUGUST 22, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Lawrence D. Diehl for appellant.
Moody E. Stallings, Jr. (Kevin E. Martin-Gayle;
Stallings & Richardson, P.C., on brief), for
appellee.
Gregory A. Haase (father) appeals various decisions of the
Circuit Court of the City of Virginia Beach in a decree of
divorce a vinculo matrimonii from his former wife, Karen U. Haase
(mother), based upon a report and recommendation of James A.
Evans, Commissioner in Chancery (commissioner), awarding custody
of the couple's two minor children, Benjamin, age twelve, and
Emily, age eight 1 , to mother. Father contends that the
chancellor erred (1) in approving the commissioner's decision
over the objection of a parent to receive testimony from the
couple's children where expert testimony suggested that requiring
the children to testify would be detrimental to their welfare;
(2) in approving the commissioner's decision to receive the
children's testimony in an informal proceeding in camera without
*
Justice Koontz prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
1
The children were eleven and six at the time of the
commissioner's hearing relevant to this appeal.
counsel or the parties present; and (3) in adopting the
commissioner's findings of fact and awarding sole custody to the
mother. For the following reasons, we affirm the chancellor's
decisions.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The couple married in 1980 and separated in 1991. After
seventeen months separation, mother filed for divorce on the
ground of separation for more than one year without hope of
reconciliation. Mother sought sole custody of the children.
Father denied a mutual separation had occurred, asserting that he
retained a hope of reconciliation. He charged in a cross-bill
that mother was guilty of desertion and adultery, alleged that
the couple shared joint custody of the children at that time
pursuant to a juvenile and domestic relations district court
(juvenile court) order confirming a custody agreement, and sought
sole custody of the children. Mother denied the allegations of
desertion and adultery but admitted the existing custody
2
arrangement.
The Honorable Robert B. Cromwell, Jr., then chancellor of
record, referred the matter to the commissioner. During the
commissioner's first hearing, mother indicated that she desired
to have Benjamin give evidence to the commissioner in camera with
2
The joint custody agreement was arrived at through a family
mediation program. It provided for a weekly time share schedule
and holiday visits.
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counsel, but not the parties, present. As counsel for father was
not aware of this request prior to it being made, the
commissioner deferred action on the request at that time.
At a subsequent hearing, father objected to having Benjamin
testify, asserting that it would be psychologically harmful to
Benjamin. A licensed professional counselor testified that
Benjamin was torn between his parents and had been alienated
against his father by his mother.
After additional argument, the commissioner ruled that he
would receive evidence from the children in camera with neither
the parties nor counsel present. Father objected that this was
not proper procedure absent consent of the parties and because of
evidence that the children had been coached. The commissioner
suggested that the parties could seek a directive from the court
"if [the parties] want me to do it any other way." Prior to the
children testifying at a third hearing, father renewed his
objection before the commissioner but did not seek a directive
from the court. The children then testified in camera without
counsel or the parties present. The testimony took the form of a
conversation directed by questions from the commissioner on
various subjects, including school, summer activities, friends
and the children's relationship with each parent.
Father and his lay and expert witnesses maintained that
mother was disinterested in the children's welfare, that she had
interfered with the joint custody arrangement and father's
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attempts to promote family counseling, and that she had attempted
to alienate Benjamin against his father. Father further
maintained that he had curtailed his medical practice in order to
spend more time with the children to compensate for mother's lack
of interest, resulting in a significant decrease in income.
Father outlined a plan for providing child care and maintaining
the former marital home so that the children would continue in
the same schools.
Mother and her witnesses testified that father burdened the
children with too many activities and used them as pawns in his
reconciliation attempts. An expert witness for father conceded
that Benjamin did not like the intense schedule of activities
prepared by his father. He further testified that Benjamin was
"afraid of his father" and "feels he is on a whirlwind trip."
Mother's evidence countered the father's claim that she was
disinterested in the children's upbringing and education. Mother
asserted, in a letter admitted into evidence, that she refused to
participate in counseling because the counsellor had a prior
professional relationship with father.
At the conclusion of all of the testimony, the commissioner
found that the existing joint custody arrangement was not in the
children's best interest and recommended that mother be given
sole custody with holiday and extended summer visitation for
father. Pursuant to Rule 2:18(c), the commissioner filed his
report and a transcript of the proceedings and testimony,
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including the testimony of the children in the in camera
interview, with the clerk of the circuit court. Father excepted
to the commissioner's recommendation regarding custody and filed
a motion with the chancellor requesting that the issue be
referred to the juvenile court. The chancellor adopted the
commissioner's findings and recommendations, granting the divorce
on the grounds of the mother's adultery and desertion, while
awarding sole custody of the children to mother. This appeal
followed.
II.
AUTHORITY OF THE COMMISSIONER IN CHANCERY
"A commissioner in chancery is an officer appointed by the
chancellor to aid him [or her] in the proper and expeditious
performance of his [or her] official duties." Raiford v.
Raiford, 193 Va. 221, 226, 68 S.E.2d 888, 891 (1952). When a
court refers a cause to a commissioner in chancery, it does not
delegate its judicial functions to the commissioner. Lawrence v.
Lawrence, 212 Va. 44, 47, 181 S.E.2d 640, 643 (1971). Thus, the
commissioner, while functioning as an independent judicial
officer, is a surrogate for the chancellor and is subject to the
chancellor's control. Conversely, the actions of the
commissioner are not binding on the chancellor, who must exercise
independent judicial judgment over the evidence presented in the
commissioner's report. Once adopted by the chancellor, however,
the actions, findings and recommendations of the commissioner
become those of the supervising court and are due considerable
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deference on appeal. See Brawand v. Brawand, 1 Va. App. 305,
308, 338 S.E.2d 651, 652 (1986).
In undertaking the receipt of evidence, the commissioner
must be cognizant of the rules of evidence and procedure
applicable to proceedings in chancery. However, the
commissioner's hearing is not a trial, and the standards
applicable to such proceedings are necessarily relaxed in order
to accommodate the judicial economy contemplated by the statutory
authorization of the office of commissioner. See Code
§ 8.01-607. Accordingly, the manner in which the commissioner
requires the parties to produce evidence, calls and examines
witnesses, and rules on the admissibility of evidence is
entrusted to the commissioner's discretion "unless otherwise
directed by the decree of reference" or an amendment thereto
sought and obtained by a party. Rule 2:18.
III.
CALLING THE CHILDREN AS WITNESSES
Recognition of the potential conflict between the interests
of parents and their children in custody cases has been firmly
established in Virginia law. See Williams v. Woolfolk, 188 Va.
312, 317, 49 S.E.2d 270, 272 (1948). Although the wishes of the
child are not controlling, the commissioner may properly consider
that preference and give weight to it in making a custody
recommendation to the chancellor. See Hall v. Hall, 210 Va. 668,
672, 173 S.E.2d 865, 868 (1970); Hepler v. Hepler, 195 Va. 611,
620, 79 S.E.2d 652, 658 (1954). Prior to receiving evidence from
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the child, the commissioner must determine that the child is "of
reasonable intelligence, understanding, age and experience to
express such a preference." Code § 20-124.3(7); see also Durant
v. Commonwealth, 7 Va. App. 454, 462, 375 S.E.2d 396, 400
(1988)(trial court's judgment as to competence of child witness
will not be disturbed on appeal absent manifest error).
Here, the commissioner elected to receive evidence from the
children in order to determine their preference as to custody as
is contemplated by Code § 20-124.3. Despite father's assertion
that the experience of being compelled to testify would be
detrimental to the children, we cannot say that the commissioner
abused his discretion in electing to examine the children. The
evidence presented by father was equivocal and speculative as to
the potential harm. The commissioner was privileged to consider
father's self-interest in seeking to obstruct the receipt of
evidence from the children and in weighing the credibility of the
evidence presented by father seeking to accomplish that end.
Moreover, the record adequately supports a conclusion that these
children, although young, were of sufficient intelligence,
understanding and experience to express their views concerning
their custody.
IV.
THE IN CAMERA INTERVIEW
No person who is a party to a divorce proceeding--litigant,
counsel, or chancellor--relishes the spectacle of a child
testifying in open court as to his or her preference for one
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parent over another. See Buck v. Buck, 31 N.W.2d 829, 831 (Mich.
1948); Price v. Price, 192 S.W. 893, 894 (Ark. 1917).
Accordingly, the preferred method of receiving such evidence in
the majority of jurisdictions is to obtain the child's views in
an in camera interview. See Stickler v. Stickler, 206 N.E.2d
720, 723 (Ill. Ct. App. 1965). See generally Jones, Judicial
Questioning of Children in Custody and Visitation Proceedings, 18
Fam. L.Q. 43 (1984). Other than tangential references to such
practice, this is a matter of first impression for appellate
review in this Commonwealth, especially where, as here, the in
camera interview is conducted outside the presence of the parents
and their counsel and over the objection of one of the parents.
See, e.g., Addison v. Addison, 210 Va. 104, 109, 168 S.E.2d 281,
284 (1969)(noting that children were interviewed in camera by
agreement of the parties).
Father's principal challenge to the procedure used here is
that it violated his due process right of confrontation. In
addition to a denial of an opportunity to confront the witness,
he asserts that, as a matter of policy, the exclusion of counsel
from the in camera interview will increase the involvement of
children as witnesses in emotional custody disputes. Such is the
case, he asserts, because a parent is more likely to keep a child
out of court if the child is to be subjected to cross-
examination, but would be encouraged to involve the child as a
witness if the parent knows that the interview will be conducted
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only in the presence of the judicial officer.
We recognize that questions of child custody, whether in a
divorce proceeding or a civil action by the Commonwealth, involve
a fundamental liberty interest of the parent. Accordingly, the
parent must be accorded the benefits of due process. Rader v.
Montgomery Co. Dep't of Social Servs., 5 Va. App. 523, 528, 365
S.E.2d 234, 237 (1988). Nonetheless, "[i]n any child custody
decision, the lodestar for the court is the best interest of the
child," Smith v. Pond, 5 Va. App. 161, 163, 360 S.E.2d 885, 886
(1987), and the due process rights of the parents must be
tempered by this guiding principle.
We are not persuaded that reaching the goal of providing an
appropriate balance between protecting the interest of children
and the procedural rights of their parents in resolving custody
disputes is facilitated by a set of bright-line rules applicable
regardless of the circumstances of individual cases. Rather, in
determining how to proceed with the receipt of evidence from
children in custody cases, the judicial officer, whether the
3
chancellor or a commissioner , should consider the facts and
3
We do not here express an opinion on the procedures
applicable to cases heard before juvenile courts. The concerns
present with commissioner's hearings are not present in the
juvenile courts, which are not courts of record, because their
decisions, unlike those of a commissioner, are subject to de novo
consideration on appeal to the circuit court. Compare Barnes v.
City of Newport News, 9 Va. App. 466, 469, 389 S.E.2d 481, 483
(1990)(appeal de novo from district court assures complete record
for Court of Appeals) and Peple v. Peple, 5 Va. App. 414, 419,
364 S.E.2d 232, 236 (1988)(appeal to the circuit court from the
juvenile court annuls the judgment of the inferior tribunal) with
Robinson v. Robinson, 5 Va. App. 222, 225-26, 361 S.E.2d 356, 358
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circumstances of the particular case. Among the factors to be
considered are the age and maturity of the children, the matters
to be brought forth in their testimony, the acrimony between the
parents, and the likelihood of improper influence by one or both
of the parents on the children's testimony. Based upon the
consideration of these factors and others as may be appropriate,
the judicial officer should then determine the method of
receiving evidence which serves the best interest of the children
while preserving to the greatest extent possible the procedural
rights of the parents.
Although we decline to establish a bright-line requirement
that counsel be present and permitted to participate in all in
camera proceedings in child custody cases, we believe that in
most cases such will best ensure the protection of the child's
interests and the parents' rights. However, depending on the
circumstances of the individual case, the appropriate procedure
may be an in camera interview conducted by the judicial officer
alone.
If the judicial officer elects to exclude the parents and
counsel from the interview, the procedural rights of the parents
cannot be sustained unless a record of the evidence received is
(..continued)
(1987)(the Court of Appeals will consider the ability of the
commissioner, not shared by the chancellor, to see, hear and
evaluate the witnesses at first hand) and Dodge v. Dodge, 2 Va.
App. 238, 242, 343 S.E.2d 363, 365 (1986)(although not carrying
the weight of a jury verdict, a commissioner's report should be
sustained unless its findings are not supported by the evidence).
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prepared. See Nowak v. Nowak, 546 So. 2d 123, 124 (Fla.
1989)(reversing for failure to provide record of in camera
proceeding). Accordingly, when an in camera interview is
conducted by the judicial officer alone over the objection of a
parent, a transcript of the evidence received must be prepared
and made available upon request of the parents.
Under the facts of the present case, we hold that the
commissioner struck an appropriate balance between the interests
of the children and the procedural rights of the parents. The
commissioner was faced with father's incongruous position that
the children should not be permitted to testify, but if they were
to testify, then it should be in the manner most potentially
harmful to them. In pursuing the more restrictive course, the
commissioner was able to preserve the welfare of the children
from the potential harm of a formal examination process while
obtaining an adequate sense of their needs and preferences as to
custody.
When the commissioner announced his decision to proceed with
an in camera interview, excluding the parties and counsel, he
invited the parties to seek an amendment to the decree of
reference directing him to do otherwise. The parties chose not
to seek such a directive. Thereafter, by virtue of the record
prepared by the court reporter, father had adequate opportunity
to challenge the evidence taken from the children, either before
the commissioner or when the matter was considered by the
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chancellor. Accordingly, the procedural rights of father were
not prejudiced by the commissioner's election to exclude father
and his counsel from the interview with the children.
V.
AWARD OF CUSTODY
Father further contends that the chancellor erred in
adopting the commissioner's recommendation granting sole custody
to mother. Father first contends that the previous approval of
the joint custody agreement by the juvenile court was owed
deference and that joint custody was appropriate under the facts
of the case. We disagree. The pre-decree custody arrangement
was not binding on the court. See Wilkerson v. Wilkerson, 214
Va. 395, 397, 200 S.E.2d 581, 583 (1973). Moreover, although the
order of the juvenile court remained in force during the pendency
of the divorce proceeding, it was merely one of the factors to be
considered by the circuit court and was neither binding on the
chancellor nor paramount among the factors to her determination.
See Peple v. Peple, 5 Va. App. 414, 421, 364 S.E.2d 232, 237
(1988)(lower court's order remains in force until modified by
circuit court, which has sole jurisdiction in the matter).
Father next contends that if the evidence favored an award
of sole custody, he was the appropriate party to receive custody
of the children. We disagree.
For purposes of appellate review, a trial court's
determination is considered to have settled all
conflicts in the evidence in favor of the prevailing
party, and the prevailing party's evidence is entitled
to all reasonable inferences fairly deducible
therefrom. . . . In examining the evidence and
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determining matters regarding a child's welfare, the
trial court must consider all evidence before
it. . . . Where a trial court makes a determination
which is adequately supported by the record, the
determination must be affirmed.
Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795
(1990).
The principal factor against awarding custody to the mother
was the determination that she had committed adultery. However,
"the mere fact of adultery, 'without more, is an insufficient
basis upon which to find that a parent is an unfit custodian of
his or her child.'" Ford v. Ford, 14 Va. App. 551, 554, 419
S.E.2d 415, 417 (1992)(quoting Brinkley v. Brinkley, 1 Va. App.
222, 224, 336 S.E.2d 901, 902 (1985)). Rather, the adultery is
simply one of the factors which the chancellor should consider.
The record before us, including the testimony of the children,
adequately supports the chancellor's determination that the
children's best interest was served by an award of sole custody
to mother with liberal visitation to father.
For these reasons, the decisions of the chancellor are
affirmed.
Affirmed.
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