Walter Daniel Banit v. Janell Christine Banit ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
WALTER DANIEL BANIT
MEMORANDUM OPINION *
v. Record No. 3237-01-4 PER CURIAM
APRIL 30, 2002
JANELL CHRISTINE BANIT
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
(William M. Baskin, Jr.; Baskin, Jackson,
Hansbarger & Duffett, P.C., on briefs), for
appellant.
(Ann W. Mische; Paula W. Rank; Byrd Mische,
P.C., on brief), for appellee.
Walter D. Banit (father) appeals the decision of the circuit
court granting Janell C. Banit's (mother) petition to change
custody of their minor son, Austin Banit (son), and allowing her
to relocate with son to California. On appeal, father contends
the trial court erred by (1) finding the change in custody and
relocation were in the best interests of the child, (2) finding
the relationship between father and son would not be substantially
impaired as a result of the relocation, and (3) excluding evidence
regarding the propensity of each parent to actively support son's
contact with the other parent. Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
merit. Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to appellee as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
Procedural Background
Father and mother were divorced by final decree on December
17, 1999. The final decree incorporated the terms of a consent
final custody decree granting shared legal and physical custody of
son to the parties. On September 13, 2001, mother filed a motion
for a change of custody and permission to relocate to California.
After hearing evidence from both parties, the circuit court
granted mother's motion, entering its decree on November 9, 2001.
Pursuant to the custody decree, son was alternating weeks
living with mother and father. At the time of the custody
hearing, son had been diagnosed by his school psychologist as
depressed and learning disabled. Dr. Mary Lindahl, son's
therapist of two years, diagnosed him with "over anxious disorder
of childhood." Lindahl testified son has trouble with transitions
and benefits from a structured environment.
Analysis
I.
"In cases involving the modification of a custody decree
. . . the court must evaluate whether a change in custody would
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be in the best interests of the child." Bostick v.
Bostick-Bennett, 23 Va. App. 527, 535, 478 S.E.2d 319, 323
(1996). Whether to modify a child custody order is committed to
the sound discretion of the trial court. Eichelberger v.
Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986).
In determining what custodial arrangement serves the best
interests of a child, the court shall consider the factors
enumerated in Code § 20-124.3. The trial court determined son's
mental condition was a relevant factor in determining what would
be in his best interests. See Code § 20-124.3(1). The trial
court believed the expert testimony of Dr. Lindahl. "It is well
established that the trier of fact ascertains a witness'
credibility, determines the weight to be given to [a witness']
testimony, and has the discretion to accept or reject any of the
witness' testimony." Street v. Street, 25 Va. App. 380, 387,
488 S.E.2d 665, 668 (1997) (en banc). These principles apply to
the testimony of both lay and expert witnesses. Id. at 387-89,
488 S.E.2d at 668-69. School psychologist Virginia Rutledge
also testified son was emotionally disturbed. The trial court
noted some of son's anxiety resulted from the week on, week off
schedule imposed by the custody decree and that son needed less
transition. The court also concluded mother has a better
ability to accurately assess and meet son's emotional,
intellectual, and physical needs, noting that father did not
appreciate the effect the week-to-week visitation has on son.
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See Code § 20-124.3(3). The court determined father is less
willing to cooperate in and to resolve disputes regarding
matters affecting son. See Code § 20-124.3(7). After
considering all the factors set forth in Code § 20-124.3, the
trial court found it would be in son's best interest for mother
to have custody. The trial court's finding that the joint
custody plan was a failure and that mother should have custody
of son was supported by credible evidence. Therefore, we hold
that the trial court did not abuse its discretion in awarding
mother custody.
II.
The court next addressed whether relocating son to
California would be in his best interests.
"A court may forbid a custodial parent from
removing a child from the state without the
court's permission, or it may permit the child to
be removed from the state." It is well settled
that the child's best interest is the criterion
against which such a decision must be measured.
Such a decision is a matter of discretion to be
exercised by the court, and, unless plainly wrong
or without evidence to support it, the court's
decree must be affirmed.
Bostick, 23 Va. App. at 533, 478 S.E.2d at 322 (quoting Scinaldi
v. Scinaldi, 2 Va. App. 571, 573, 347 S.E.2d 149, 150 (1986)).
In considering whether relocation will be in a child's best
interest, the court must consider whether "the benefits of the
[parent-child] relationship can[ ] be substantially maintained
if the child is moved away from the non-custodial parent" and,
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if not, the relocation may not be in the child's best interest.
Scinaldi, 2 Va. App. at 575, 347 S.E.2d at 151. Noting the
evidence overwhelmingly established that father and son were
strongly bonded, the trial court determined the relocation would
not change that strong bond. The trial court emphasized that
son would be spending summers and vacations with father, making
up for the lack of day-to-day contact during the rest of the
year. Lindahl testified son had a strong relationship with
father and that son and his relations with father would not be
harmed by the move. The evidence supports the trial court's
determination.
III.
Hearsay evidence is testimony given by a witness
who relates, not what he knows personally, but
what others have told him or what he has heard
said by others. When offered for the truth of
the matters asserted, unless the statement falls
within one of the many exceptions, such evidence
is not admissible.
Strohecker v. Commonwealth, 23 Va. App. 242, 253, 475 S.E.2d
844, 850 (1996) (citations omitted).
Father sought to introduce a statement from son regarding a
statement mother had made to son. Father proffered that he
would have testified that son told him mother had told son that
father wanted her to have an abortion when she was pregnant with
son. Father argues son's statement was not offered for the
truth of the matter asserted and therefore was not inadmissible.
However, "[s]uch testimony was double hearsay and thus doubly
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suspect." Service Steel v. Local, 219 Va. 227, 236, 247 S.E.2d
370, 376 (1978). Father wanted to testify to what son had
declared were statements made to him by mother. Therefore, the
truth of the matter asserted was that mother made the purported
statements. Father admits he sought to introduce the statement
for the purpose of proving mother made the statement to son.
Such statement, "offered as equivalent to testimony of a witness
without the safeguard of available cross-examination, [was]
properly rejected." Id.; see McCormick on Evidence § 324.1, at
351-53 (5th ed. 1999).
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
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