Tammy Gail Walden Cole v. Robert Clark Cole ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
TAMMY GAIL WALDEN COLE
v. Record No. 1570-95-1 MEMORANDUM OPINION *
PER CURIAM
ROBERT CLARK COLE FEBRUARY 27, 1996
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John E. Clarkson, Judge
(George A. Christie; Christie & Kantor, on
brief), for appellant.
(Henry M. Schwan; Allan D. D. Cahill, on
brief), for appellee.
Tammy Gail Walden Cole (mother) appeals the decision of the
circuit court awarding Robert Clark Cole (father) physical
custody of the parties' minor daughter. Mother also argues that
the trial court erred in disqualifying the opinion testimony of
her expert witness; crediting father with $6,000 from the sale
proceeds of the parties' North Carolina property; and failing to
award mother her costs and attorney's fees. Father contends the
trial court erred by failing to award him his attorney's fees and
costs. Upon reviewing the record and briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. Rule 5A:27.
The evidence was heard by the commissioner in chancery, to
whose report father filed numerous exceptions. The trial court
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
accepted the majority of father's exceptions. On review, we note
that the commissioner's report
should be sustained unless the trial court
concludes that the commissioner's findings
are not supported by the evidence. This rule
applies with particular force to a
commissioner's findings of fact based upon
evidence taken in his presence, but is not
applicable to pure conclusions of law
contained in the report. . . . [W]here the
chancellor has disapproved the commissioner's
findings, this Court must review the evidence
and ascertain whether, under a correct
application of the law, the evidence supports
the findings of the commissioner or the
conclusions of the trial court. Even where
the commissioner's findings of fact have been
disapproved, an appellate court must give due
regard to the commissioner's ability, not
shared by the chancellor, to see, hear, and
evaluate the witnesses at first hand.
Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296-97 (1984)
(citations omitted).
Custody
"In matters of custody . . . 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).
In matters of a child's welfare, trial courts
are vested with broad discretion in making
the decisions necessary to guard and to
foster a child's best interests. A trial
court's determination of matters within its
discretion is reversible on appeal only for
an abuse of that discretion, and a trial
court's decision will not be set aside unless
plainly wrong or without evidence to support
it.
Id. at 327, 387 S.E.2d at 795 (citations omitted). Factors to be
considered when determining a child's best interests include,
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among others, the child's age and physical and mental condition,
"giving due consideration to the child's changing developmental
needs;" "the relationship existing between each parent and each
child, giving due consideration to the positive involvement with
the child's life . . .;" and "[t]he role which each parent has
played and will play in the future, in the upbringing and care of
the child." Code § 20-124.3(1), (3), and (5).
Contrary to mother's assertion, the court's opinion,
rejecting the recommendation of the commissioner in chancery that
custody of the child be so ordered to her, demonstrates that the
court applied the appropriate legal standard to its determination
of custody. The court discussed the statutory factors, noting
that "the past . . . is the best prognostication for the future."
Based upon the "majority of the evidence from the hearing and
the social history" prepared for the district court, the trial
court concluded that father was "a good father" and "the best
caretaker" who "had a positive, continuing involvement with the
child" and "to the best of his ability under extremely difficult
situations, met the emotional, intellectual, educational and
physical needs of the child." In assessing mother's role, the
court noted that she
does not now have custody of her son from a
former marriage, at one time, deserted the
child of this marriage by moving out and has
committed adultery and continues to live with
a male during the time that this divorce has
been filed. She apparently does not believe
that a father can raise a daughter.
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The child's teachers testified that father was on the
school's volunteer list and participated in school activities and
field trips. Father enrolled the child in ballet and gym
classes. There was evidence that mother reduced her visitation
with the child to accommodate the fact that her companion was
away only one night.
While the court stated that it found "no legal reason to
change custody at this time," the court did not impose upon
mother any requirement to demonstrate a change in circumstances
meriting a change in custody. The court's ruling demonstrates
that it considered the evidence to determine which parent would
provide the child with the best primary residence at this time.
Based upon our review of the evidence, we find that the
evidence supports the conclusion of the trial court that the best
interests of the child were served by granting father physical
custody.
Disqualification of Expert Witness' Opinion Testimony
The trial court accepted, without comment, the following
exception by father to the commissioner's report: "2. The
Commissioner's erroneous custody recommendation is found upon the
opinions of a unqualified alleged 'expert' nurse (Michele
Zimmerman); objections to the qualifications of this witness as
an expert witness and to the opinions of that witness were timely
made." 1
1
It is unclear from this exception, and from the record as a
whole, whether the trial court determined that Zimmerman did not
4
Zimmerman testified that she was a clinical nurse
specialist, with a master's degree in psychiatric and mental-
health nursing, and was board-certified as a specialist in both
adult and child/adolescent psychiatric nursing, and was certified
in family therapy. Zimmerman also testified that she was a
practicing psychotherapist, but was neither a psychiatrist nor a
psychologist. Zimmerman noted that she had published in the
areas of addictions, child sexual abuse and stress management,
and wrote a unit in a book for persons taking advanced practice
boards on the diagnosis and treatment of child and adolescent
psychiatric disorders. Zimmerman was offered as an expert in
child and adolescent psychology in order "to talk about
evaluations of children and family relations."
In her testimony, Zimmerman admitted that she had not met
father and she had little information about the child's life with
her father. Conclusions she drew about father were based on the
information received from mother. The trial court did not, and
was not required to, "accept as conclusive the opinion of an
expert." Lassen v. Lassen, 8 Va. App. 502, 507, 383 S.E.2d 471,
474 (1989). Thus, while Zimmerman may have been qualified as an
expert, we cannot say the trial court erred in rejecting her
opinion.
Zimmerman stated that "all things being equal, two equally
qualify as an expert or that she did qualify but that the court
nonetheless rejected her opinions. For our purposes, we assume
the latter.
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loving and competent parents . . . it makes sense for the child
to be with the same-sex parent." The trial court determined that
the parents were not equal and that father was the better
caretaker. 2 Evidence supports the trial court's decision.
Therefore, we find no reversible error in the decision of the
trial court to reject the opinion of mother's expert witness.
Traceable Funds
The parties agreed that the $6,000 received by father as an
advance on his inheritance was his separate property, and that
father used that money as part of the down payment on the
purchase of the parties' property in North Carolina. Code
§ 20-107.3(A)(1)(ii). Under the statutory scheme, property can
be classified as part marital and part separate, and marital
property includes "all property titled in the names of both
parties . . . except as provided by subdivision A 3." Code
§ 20-107.3(A)(2)(i). In particular, the statute states:
e. When marital property and separate
property are commingled into newly acquired
property resulting in the loss of identity of
the contributing properties, the commingled
property shall be deemed transmuted to
marital property. However, to the extent the
contributed property is traceable by a
preponderance of the evidence and was not a
gift, the contributed property shall retain
2
Zimmerman also stated that "most child experts would agree
that, given a little girl of tender years, that it is in a
child's best interests to be with the same-sex parent." Code
§ 20-124.2(B) provides that "[a]s between the parents, there
shall be no presumption or inference of law in favor of either."
Reliance upon a "tender years" presumption or inference in
custody determinations is reversible error. Visikides v. Derr,
3 Va. App. 69, 72, 348 S.E.2d 40, 42 (1986).
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its original classification.
Code § 20-107.3(A)(3)(e) (emphasis added). Moreover, under
subsection (g), "[n]o presumption of gift shall arise under this
section where (i) separate property is commingled with jointly
owned property . . . ." The classification of the property "is
determined by the statutory definition and is not determined by
legal title." Garland v. Garland, 12 Va. App. 192, 195, 403
S.E.2d 4, 6 (1991).
Father traced the use of his separate property as part of
the funds used to purchase the North Carolina property. The fact
that the property was jointly titled did not create a presumption
of a gift by father. Mother presented no other evidence to prove
the $6,000 was a gift. Therefore, the trial court did not err in
allowing father to recover his separate funds from the sale
proceeds.
Attorney's Fees and Costs
Awards of attorney's fees or costs are matters submitted to
the sound discretion of the trial court and are reviewable on
appeal only for an abuse of discretion. Graves v. Graves, 4 Va.
App. 326, 333, 357 S.E.2d 554, 558 (1987). Cf. Donald v. Fairfax
County Dep't of Human Dev., 20 Va. App. 155, 160-62, 455 S.E.2d
740, 743-44 (1995). The key to a proper award of counsel fees or
costs is reasonableness under all the circumstances. McGinnis v.
McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).
The trial court required the parties to pay their own
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attorney's fees and share the costs equally. We cannot say that
the trial court abused its discretion in denying either party an
award of attorney's fees and in splitting the costs.
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Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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