Jami M. Kring v. Nathan A. Bean ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
JAMI M. KRING
MEMORANDUM OPINION *
v. Record No. 2701-00-3 PER CURIAM
MAY 8, 2001
NATHAN A. BEAN
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles H. Smith, Jr., Judge
(Barry L. Proctor, on brief), for appellant.
(Sage B. Johnson; Johnson & Johnson, P.C., on
brief), for appellee.
The sole issue in this case is whether the trial court abused
its discretion in awarding custody of the minor child to Nathan A.
Bean, the child's father. Upon review of the record and briefs of
the parties, we conclude that the appeal of Jami M. Kring, the
child's mother, is without merit. Accordingly, we summarily
affirm the decision of the trial court. Rule 5A:27.
BACKGROUND
Bean and Kring are the parents of Austin Bean, who was born
on April 3, 1996. Bean and Kring were in high school when Austin
was born, and they resided with Kring's parents, Donald and
Cecilia Cottage, after Austin was born. They never married.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
In August or September 1997, Bean and Kring had ended their
relationship, and Bean moved to another residence, leaving Austin
with Kring. The parties entered into an agreement in March 1999
wherein Kring received primary physical custody of Austin, and
Bean had liberal visitation with Austin and was required to pay
monthly child support. Bean timely paid his child support and
regularly exercised his visitation rights.
In February 2000, Bean learned from Kring's parents that
Kring had gotten married, was residing at another residence, and
had left Austin in their care. Kring did not tell Bean about the
changes in Austin's living arrangements. Bean then filed a
petition in the juvenile and domestic relations district court
(J&DR court) seeking custody of Austin. The J&DR court found that
Kring's circumstances had "ebbed and flowed considerably" over the
past year with respect to her living arrangements and employment,
whereas Bean's life had stablilized. The J&DR court also found
that Kring had not kept Bean informed about Austin's living
arrangements and had not consulted Bean concerning these changes.
The J&DR court awarded Bean custody of Austin and ordered Kring to
pay child support. Kring appealed the J&DR court decision to the
trial court.
The trial court heard evidence on the custody matter on
July 18, 2000. At that time, Bean had been employed for the same
manufacturing company for three years. He was earning
approximately $10 per hour. Bean testified that Austin had
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adjusted well to the change in custody. He had taken Austin on a
vacation and had enrolled the child in swimming lessons. Austin
has his own room and own bed at Bean's two-bedroom apartment.
Austin sleeps with his grandparents when he stays at the Cottages'
residence.
Bean testified that Kring had not paid any of the child
support payments as ordered by the J&DR court. Bean also
testified that Kring failed to inform him when she enrolled Austin
in pre-school, enrolled Austin in counseling sessions, or took
Austin to a summer camp. Bean testified that Kring never informed
him of her work schedule so that he could have custody of Austin
on days when Kring was working. At the time of the hearing, Bean
had been taking Austin to the Cottages' residence on the days he
worked. He had made arrangements to take Austin to a day care
facility in the future.
Kring testified that she left her parents' residence in
January 2000 to reside with a girlfriend, Wendy Campbell, who had
recently had a baby and was experiencing financial difficulties.
Kring had offered to "help" Campbell with the baby. Campbell
testified that Kring and her then boyfriend, now husband, shared a
bedroom in her apartment for about two weeks. Campbell stated
that Kring was at the apartment for approximately twenty-four
hours a day, four days per week. Neither Kring nor her boyfriend
had jobs or contributed financially to the living expenses at
Campbell's apartment, except occasionally buying groceries.
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Campbell never saw Austin at the apartment. Kring stated she did
not take Austin with her to the apartment because it was not a
"stable" environment for him. In January 2000 Kring married her
boyfriend.
After Bean filed his petition for custody of Austin, Kring
and her husband moved into the Cottages' residence. They both
obtained employment at a fast food restaurant. Kring and her
husband reside in the Cottages' basement. When Austin visits
Kring, he sleeps on the second floor of the house with his
grandparents. Kring testified that she takes care of Austin at
the Cottages' residence on the days she does not work. Kring
admitted she had never provided Bean with a copy of her work
schedule despite the J&DR court order to do so.
The trial court awarded custody of Austin to Bean. Kring
appeals that decision to this Court.
ANALYSIS
When determining which parent should have custody the trial
court must decide what is in the best interests of a child and is
required to consider the factors listed in Code § 20-124.3. The
trial court is not required to quantify or elaborate on what
weight or consideration it has given to each of the factors in
Code § 20-124.3 or to weigh each factor equally. See Sargent v.
Sargent, 20 Va. App. 694, 702, 460 S.E.2d 596, 599 (1995). The
trial court's findings, however, must have some foundation based
on the evidence in the record, and if the trial court's findings
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lack evidentiary support, its determination of child custody is an
abuse of discretion. Cf. Trivett v. Trivett, 7 Va. App. 148,
153-54, 371 S.E.2d 560, 563 (1988). The trial court is vested
with broad discretion to safeguard and promote the child's
interests, and its decision will not be reversed unless plainly
wrong or without evidence to support it. See Farley v. Farley, 9
Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990).
Kring argues the trial court did not consider the factors
listed in Code § 20-124.3 in making its decision. However, the
court order entered on October 31, 2000 states that the trial
court considered the factors set forth in the statute as well as
the evidence presented at the hearing and the exhibits filed.
Furthermore, at the conclusion of the hearing, the trial court
emphasized that it based the custody decision on Austin's best
interests. The trial court found that both Kring and Bean were
capable of being "mature young people" and "good" and "fit"
parents. However, the trial court concluded that Kring's move to
Campbell's apartment had been "a ruse" in order for her "to be
with her now husband." "The court is the judge of the credibility
of the witnesses, and its findings are of great weight on appeal."
Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866, 869 (1990).
The court further found that, prior to leaving the Cottages'
residence, Kring should have made arrangements with Bean
concerning Austin's care, stating that Bean should have had a
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"say-so" regarding where Austin would live once Kring left her
parents' residence.
In addition, the trial court concluded that Kring's failure
to cooperate with Bean and her failure to pay the court-ordered
child support were factors to be considered. On the other hand,
Bean had consistently paid child support and regularly exercised
his visitation rights with Austin. The trial court was "very
impressed with [Bean]'s stability," "demeanor," "maturity," and
the arrangements he had made to care for Austin. The trial court
stated, "I think he's got his head on straight now and his act
together." However, the trial court found that Kring did not
exhibit these characteristics, and it found that her lack of
maturity had been an "impediment to her being the kind of mother
she should be."
The record demonstrates that the trial court carefully
considered and weighed the evidence. Its decision focused on
Austin's best interests. We cannot say that the custody decision
of the trial court was plainly wrong or without evidence to
support it. Accordingly, the trial court's decision is affirmed.
Affirmed.
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