K. Robin Laing v. Stephen D. Walker ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
K. ROBIN LAING
MEMORANDUM OPINION *
v. Record No. 1288-00-3 PER CURIAM
NOVEMBER 7, 2000
STEPHEN D. WALKER
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
J. Howe Brown, Jr., Judge Designate
(K. Robin Laing, pro se, on briefs).
(Harwell M. Darby, Jr.; Glenn, Feldmann,
Darby & Goodlatte, on brief), for appellee.
K. Robin Laing appeals from an order of the Montgomery County
Circuit Court (the court) denying her petition for change of
custody of her daughter Dana (d.o.b. 11/15/87) and son Eric
(d.o.b. 6/19/89). 1 The court ruled that custody of the two
children should remain with their father, Stephen Walker. Laing
contends the court erred in excluding the children's in camera
testimony from the record and in denying her petition for custody.
Upon reviewing the record and the briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Laing did not seek custody of the parties' eldest
daughter, Kelly.
summarily affirm the judgment of the circuit court. See Rule
5A:27.
I. Background
The court awarded appellant custody of the parties' three
children after the couple's 1991 divorce. In 1994, at Kelly's
request, her custody was transferred to Walker. Shortly
thereafter, Walker successfully petitioned for custody of Dana and
Eric.
In November 1996, Walker verbally informed Laing that he
would be moving with the children from Lafayette, Louisiana, to
Ava, Missouri, where Walker was purchasing a farm. In a December
3, 1996 letter to Laing, Walker provided further information
regarding the upcoming move. Walker included with his letter
photographs of the area, brochures about the community, and
information about the local schools.
On May 30, 1997, citing the move to Ava, Laing filed a
petition to regain custody of Dana and Eric. The juvenile and
domestic relations district court ordered that home studies of the
parties' homes be performed. A Virginia social worker conducted
Laing's home study, a Missouri social worker conducted Walker's
home study, and neither social worker contacted both parties.
Both social workers had favorable impressions of the party they
reviewed. The Missouri social worker reported that Dana and Eric
wished to remain with Walker, while the Virginia social worker
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indicated the two children wanted to live with Laing. Neither
social worker included a custody recommendation in her report.
On October 31, 1997, the juvenile and domestic relations
district court denied Laing's petition for custody. Laing filed a
timely appeal to circuit court, but no significant action was
taken in the matter until the summer of 1999.
In a January 25, 2000 report, the guardian ad litem
recommended that custody of the children remain with Walker. In
preparing her report, the guardian ad litem spoke to the parties,
their partners, Ava school officials, and all three children.
Although conceding that Dana and Eric expressed a desire to live
with Laing, the guardian ad litem noted that the children did not
express "any reason they wanted a custody change for their own
benefit." The guardian ad litem concluded it was her belief that
the children wanted to live with both parents and did not want to
have to decide which one they preferred.
The parties appeared before the court and presented evidence
on April 4, 2000. Both described the suitable living arrangements
they could offer the children. They detailed their positive
relationships with the children, as well as the constructive
relationships the children had developed with the parents'
respective partners (Laing's husband and Walker's fiancée).
Laing testified that her work schedule was flexible enough to
permit her to attend to the children's needs. She emphasized that
she had been very cooperative with Walker when she was the
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custodial parent and that she would continue this openness if
custody of Dana and Eric was awarded to her. Laing asserted that
Walker had not cooperated with her ever since he got custody of
the children. She complained that Walker had failed to provide
her with the children's school and medical records, but conceded
that she had not requested any such records, except the children's
blood types.
Social worker Kira Holland, who had performed the 1997 study
of Laing's household, recommended that custody of the children be
awarded to Laing. She conceded, however, that she had not
communicated with Dana and Eric in three years and that she had
not made a recommendation at the time she completed her home
study.
Walker testified that he gave up his job with an oil company
in Lafayette to buy a farm in Ava. He stated that he selected Ava
not only for the suitable farmland it possessed, but also because
of the advantages the community afforded Kelly, Dana, and Eric.
He presented evidence that Dana and Eric were doing well in school
and were active in extracurricular activities.
At the time of the hearing, Walker worked forty hours a week
as a production engineer, in addition to his farm duties. He
stated that his farm duties consumed between one and a half and
five hours per day, depending on the time of the year. The
children frequently accompany Walker when he performs farm chores.
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Walker's mother, who was his business partner in the farming
operations, lived with him. His fiancée was going to move into
the residence after the couple's April 10, 2000 wedding.
After speaking to the parties' three children in camera, the
circuit court noted that Dana and Eric had expressed a preference
to live with Laing. Nevertheless, the court concluded that,
especially considering the children's ages, their desires were not
dispositive.
The court was impressed that the children's well-being was a
significant consideration when Walker decided to relocate to Ava.
And it commented favorably on the quantity of information Walker
provided to Laing about Ava, even if he had relocated there
without proper notice. 2 The court found no significant difference
between the educational opportunities available to the children in
Ava as opposed to Laing's hometown of Christiansburg, Virginia.
In denying Laing's petition, the court concluded that there was no
"justifiable reason to change custody at this time."
II. In Camera Proceedings
The court's final order provided that the children's
testimony was not to be transcribed except by order of the court.
Laing concedes she agreed that the children's testimony be taken
2
Code § 20-124.5, enacted in 1994, requires that the court
include in any custody order a provision requiring a party to
provide thirty days advance notice of an intent to relocate.
Such a provision was not included in the August 25, 1994 order
awarding custody of Dana and Eric to Walker. The original
custody order is not part of the appellate record.
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in camera. She did not advise the court that she objected to the
testimony not being transcribed, and the record does not reflect
that she ever asked that it be transcribed.
Rule 5A:18 provides that "[n]o ruling
of the trial court . . . will be considered
as a basis for reversal unless the objection
was stated with the grounds therefor at the
time of the ruling, except for good cause
shown or to enable the Court of Appeals to
attain the ends of justice." "The purpose
of Rule 5A:18 is to allow the trial court to
correct in the trial court any error that is
called to its attention." "The Court of
Appeals will not consider an argument on
appeal which was not presented to the trial
court."
Francis v. Francis, 30 Va. App. 584, 592, 518 S.E.2d 842, 846-47
(1999) (citations omitted).
Laing failed to present to the circuit court the concerns
she raises before this Court. Indeed, the record does not
reflect that Laing ever asked the court to have the children's
testimony transcribed. She did not preserve this issue for
appeal and has failed to establish that either the ends of
justice or good cause exceptions to Rule 5A:18 apply.
III. Sufficiency of the Evidence
On appeal, we review the evidence in the light most
favorable to the party prevailing below and grant to that party
all reasonable inferences fairly deducible therefrom. Anderson
v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999).
"A party seeking to modify an existing custody order bears
the burden of proving that a change in circumstances has
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occurred since the last custody determination and that the
circumstances warrant a change of custody to promote the
children's best interests." Brown v. Brown, 30 Va. App. 532,
537, 518 S.E.2d 336, 338 (1999). A circuit court is vested with
much discretion in deciding the custody of minor children and,
as long as the record supports the court's decision, its ruling
will not be reversed absent an abuse of that discretion. Id. at
538, 518 S.E.2d at 338.
In all child custody cases, . . . "the
best interests of the child are paramount
and form the lodestar for the guidance of
the court in determining the dispute." In
making this determination, the wishes of a
child who has reached the age of discretion,
though not controlling, should be considered
and given appropriate weight.
Bailes v. Sours, 231 Va. 96, 99, 340 S.E.2d 824, 826 (1986)
(citation omitted).
The record reflects that Laing and Walker are both capable,
loving parents. But, at the time of the circuit court
proceeding, the children had been living with Walker in Ava for
three years and, by all accounts, were doing well there. While
Walker may not have given Laing proper notice before relocating
to Ava, this failure is not dispositive on the issue of custody.
See Parish v. Spaulding, 257 Va. 357, 362, 513 S.E.2d 391, 393
(1999) (holding that the mother's conduct in relocating outside
of Virginia without court approval was a matter subordinate to
the best interests of the children). Laing has failed to
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establish that the children's interests would be better served
by living with her in Christiansburg, rather than with Walker in
Ava.
Laing asserts the court did not give appropriate weight to
the wishes of the children. We disagree. Although the court
found that the children had not reached the age of discretion,
it mentioned that it was taking into account the children's
wishes. The circuit court correctly recognized that the desires
of young children may not always coincide with their best
interests. The court's finding that the best interests of the
children required that custody remain with Walker is supported
by evidence in the record. Accordingly, the court did not abuse
its discretion in denying Laing's petition. 3
For the foregoing reasons, the judgment of the circuit
court is affirmed.
Affirmed.
3
Laing asserts that Walker violated the terms of the
parties' marital settlement agreement by not surrendering
custody in accordance with the children's preferences. That
agreement is not part of the appellate record. On
cross-examination, Walker agreed that the agreement contemplated
that the wishes of the children would be considered. Regardless
of its terms, the court was not bound by the parties' agreement
if it was contrary to the best interests of the children. See
Edwards v. Lowry, 232 Va. 110, 112, 348 S.E.2d 259, 261 (1986);
Code § 20-108 (granting the divorce court continuing
jurisdiction over child custody issues).
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