Sabel M. Wheeler v. Andre L. Lincoln ( 2016 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Decker and O’Brien
UNPUBLISHED
Argued at Alexandria, Virginia
SABEL M. WHEELER
MEMORANDUM OPINION* BY
v. Record No. 1945-15-4 JUDGE MARY GRACE O’BRIEN
SEPTEMBER 27, 2016
ANDRE L. LINCOLN
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Douglas L. Fleming, Jr., Judge
Ryan M. Schmalzle (Beckman Schmalzle Georgelas & Ross, on
brief), for appellant.
John C. Whitbeck, Jr. (Whitbeck Cisneros McElroy, P.C., on brief),
for appellee.
Sabel Wheeler (“mother”) and Andre Lincoln (“father”), who never married, are the parents
of an eight-year-old girl, S.W. Following a custody trial, the court awarded the parents joint legal
custody, and granted father primary physical custody of S.W. Mother appeals this decision. She
asserts the following assignment of error:
[t]he trial court erred in its interpretation of Virginia Code Ann.
§ 20-124.3 to the extent that the Court interpreted a statutory
preference for primary physical custody arrangements granting a
majority of custodial time to one parent.
Finding no error, we affirm.1
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Mother noted an additional assignment of error (that “[t]he trial court erred in finding that
changing the Child’s custodial arrangement would provide more ‘stability’ for the Child”) but
mother concedes that she did not preserve this assignment of error and it is therefore waived. See
Rule 5A:18.
I. BACKGROUND
“When reviewing a circuit court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003).
At the time of trial, mother was 23 years old and single, and father was a married
26-year-old man, with a six-year-old son. S.W. was born with schizencephaly, a disease that affects
her fine motor skills. She requires constant medical care, must use a walker, and communicates by
using a tablet device. S.W. has frequent medical appointments, and attends outpatient and in-school
physical therapy. At school, S.W. has an individualized education program.
In November 2011, the Loudoun County Juvenile and Domestic Relations District Court
(“the juvenile court”) entered an order granting the parents joint legal and shared physical custody
of S.W. In May 2014, father filed a motion to modify that order and requested sole legal and
physical custody. Following a hearing, the juvenile court granted father sole legal custody and ruled
that the parties would have a shared physical custody arrangement, with each parent spending
approximately half of the time with the child. Mother appealed to the circuit court, and requested
joint legal and shared physical custody. Father asked the court to grant him sole legal and physical
custody.
At trial, the court heard testimony about S.W.’s special needs, the involvement of each
parent in her life, and the difficulties that the parents have in communicating about S.W. Mother
testified that her father (“the grandfather”) and his long-time girlfriend (“the grandmother”) have
helped her care for S.W. Mother acknowledged that for a period of time she was living in a nearby
apartment while S.W. was residing with the grandfather and grandmother. Although mother
answered an interrogatory by stating that the grandmother was S.W.’s primary caretaker, at trial
mother clarified that the grandmother only cared for S.W. while mother was at work.
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Father testified that he and his wife and son live with his wife’s parents, and S.W. and
father’s son each have their own bedroom in the residence. Father’s wife, who has been involved in
S.W.’s life since the child was four months old, helps to care for S.W. while father is working.
Both parties explained to the court that they have had significant issues co-parenting S.W.
The parents do not communicate effectively and have had disagreements regarding S.W.’s school,
the pick-up and drop-off times for custodial exchanges, and various other matters.
At the conclusion of the case, the court determined that there had been a material change of
circumstances since the November 2011 order. After finding that both parents were “legally fit,”
the court granted them joint legal custody. Before making a ruling on physical custody, the court
addressed each of the factors enumerated in Code § 20-124.3. The court also opined that “stability”
was an important consideration under factor ten of Code § 20-124.3. The court granted primary
physical custody to father, and ordered visitation to the mother every other weekend, as well as
intervening Saturdays. The court stated that its goal was to “maximize contact with the parents,
while maximizing stability for [S.W.].”
II. ANALYSIS
A. Standard of Review
“In matters of custody, visitation, and related child care issues, the court’s paramount
concern is always the best interests of the child.” Farley v. Farley, 9 Va. App. 326, 327-28, 387
S.E.2d 794, 795 (1990). We have held that a trial court has “broad discretion in making the
decisions necessary to guard and to foster a child’s best interests.” Id. at 328, 387 S.E.2d at 795; see
also Yopp v. Hodges, 43 Va. App. 427, 439, 598 S.E.2d 760, 766 (2004) (“We afford great
deference to the trial court’s determination of what is in the best interests of the child.”).
A trial court’s determination of the best interests of a child is reversible only if the trial court
abused its discretion. Vissicchio v. Vissicchio, 27 Va. App. 240, 246, 498 S.E.2d 425, 428 (1998).
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“[A] trial court’s decision will not be set aside unless plainly wrong or without evidence to support
it.” Farley, 9 Va. App. at 328, 387 S.E.2d at 795. “As long as evidence in the record supports the
trial court’s ruling and the trial court has not abused its discretion, its ruling must be affirmed on
appeal.” Brown v. Brown, 30 Va. App. 532, 538, 518 S.E.2d 336, 338 (1999).
B. Analysis
Modification of a custody or visitation order requires a two-part analysis. First, the court
must find that there has been a material change in circumstances since the most recent custody or
visitation order. Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983). After making that
finding, the court must then determine whether a change in custody or visitation is in the best
interest of the child. Id.
In determining the best interest of the child, the court is required to consider the factors
enumerated in Code § 20-124.3, including such other factors as the court deems necessary and
proper to the determination. However, there is no requirement that the court “quantify or elaborate
exactly what weight or consideration it has given to each of the statutory factors.” Sargent v.
Sargent, 20 Va. App. 694, 702, 460 S.E.2d 596, 599 (1995) (quoting Woolley v. Woolley, 3
Va. App. 337, 345, 349 S.E.2d 422, 426 (1986)). Likewise, the court has the discretion to allocate
the weight or consideration it gives each factor and may focus on a particular factor of its choice.
See Cloutier v. Queen, 35 Va. App. 413, 425, 545 S.E.2d 574, 580 (2001).
In the present case, appellant asserts that the court erred by finding that Code § 20-124.3
contains a presumption for sole physical custody, as opposed to joint physical custody. Nothing in
either the court’s ruling or the final order supports this contention. Instead, the court held that in
certain cases, such as this one, awarding primary physical custody to one parent is in the best
interest of the child.
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The court engaged in an extensive, detailed analysis of the statutory factors enumerated in
Code § 20-124.3 and explained to the parties how each factor weighed in favor of its decision to
award primary physical custody to father. The court noted S.W.’s physical and developmental
challenges, and considered the fact that both parents are involved with S.W. and play a positive role
in her upbringing. However, the court determined, based on testimony from S.W.’s teacher, case
manager, and therapist, that father was more involved in S.W.’s life and took S.W. to her medical
and school appointments more often than mother. Likewise, the court noted that during some
periods of time when S.W. was in her mother’s custody, she was residing at her grandparents’ house
without her mother. The court acknowledged the importance of both mother and father’s extended
family’s presence in S.W.’s life.
The court found that mother and father both lacked the ability to cooperate and co-parent
S.W. and noted that its consideration of that factor did not militate in favor of either parent. In its
ruling, the court specifically held that the factors concerning family abuse and the preference of the
child were inapplicable in this case. When addressing the final element, “other factors as the court
deems necessary and proper to the determination,” the court noted that “[t]he, most important factor
in the [c]ourt’s mind, to me, and it’s not a factor that cuts in favor of one parent versus another
parent . . . I believe stability is the most important factor for a child.” The court went on to observe
that “most of the time, true shared arrangements do not . . . promote the highest level of stability for
a child” and “a true shared custody arrangement would not be in [S.W.]’s best interest at this point
in her life, and at this point, in the lives of her parents.” However, the court found that although
shared physical custody would not be in S.W.’s best interest at this time, the child would benefit
from continued contact with all immediate and extended family members in her life.
Appellant contends that the court’s consideration of stability constituted an impermissible
preference against shared physical custody arrangements. However, the court never opined that
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Code § 20-124.3 contains a statutory preference for or against shared custody. As the Supreme
Court noted in Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977),
[a]bsent clear evidence to the contrary in the record, the judgment of
a trial court comes to us on appeal with a presumption that the law
was correctly applied to the facts. Furthermore, we will not fix upon
isolated statements of the trial judge taken out of the full context in
which they were made, and use them as a predicate for holding the
law has been misapplied.
In the present case, the court merely considered stability as another factor in determining the best
interest of the child. Here, the court found that the parties had a great deal of difficulty
communicating and co-parenting. The court also noted S.W.’s special needs when it determined
that stability was an important custody consideration. “Although the trial court must examine all
factors set out in Code § 20-124.3, ‘it is not “required to quantify or elaborate exactly what weight
or consideration it has given to each of the statutory factors.”’” Brown, 30 Va. App. at 538, 518
S.E.2d at 338 (emphasis added) (quoting Sargent, 20 Va. App. at 702, 460 S.E.2d at 599).
The court properly took into account all of the factors set forth in Code § 20-124.3 in
making its determination. It thoroughly explained its consideration of each factor to the parties.
The evidence supported the conclusions drawn by the court, and we find that the court did not abuse
its discretion in awarding primary physical custody to father.
III. CONCLUSION
For the foregoing reasons, the decision of the trial court is affirmed.
Affirmed.
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