Jason Wynnycky v. Susan T. Kozel

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Humphreys and Russell
Argued at Leesburg, Virginia
PUBLISHED
JASON WYNNYCKY
OPINION BY
v. Record No. 0207-19-4 JUDGE WESLEY G. RUSSELL, JR.
NOVEMBER 12, 2019
SUSAN T. KOZEL
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Daniel S. Fiore, II, Judge
Marc A. Astore (Marc A. Astore, P.C., on briefs), for appellant.
Lawrence D. Diehl (Barnes & Diehl, P.C., on brief), for appellee.
Jason Wynnycky (“father”) appeals an order of the circuit court regarding custody and
visitation of the parties’ minor daughter. He specifically challenges the court’s decision to award a
period of 50-50 custody followed by Susan Kozel (“mother”) being awarded primary physical
custody upon the child’s entry into first grade. Finding no error, we affirm the judgment of the
circuit court.
BACKGROUND1
Father’s appeal comes before this Court after a highly contentious and protracted course of
litigation in the circuit court. The circuit court took evidence on child custody and visitation issues
during numerous, hours-long hearings spanning almost three years. The evidence included
1
The record in this case was sealed. Nevertheless, the appeal necessitates unsealing
relevant portions of the record to resolve the issues appellant has raised. Evidence and factual
findings below that are necessary to address the assignments of error are discussed in this
opinion. Consequently, “[t]o the extent that this opinion mentions facts found in the sealed
record, we unseal only those specific facts, finding them relevant to the decision in this
case. The remainder of the previously sealed record remains sealed.” Levick v. MacDougall,
294 Va. 283, 288 n.1 (2017).
testimony from the parties, relatives, child-care providers, teachers, and mental health experts,
numerous e-mails and photographs, and psychological evaluation reports. Because mother was the
prevailing party below, we review the facts in the light most favorable to her, granting her all
reasonable inferences that can be drawn from the evidence and disregarding any evidence that
conflicts with her evidence. Geouge v. Traylor, 68 Va. App. 343, 347 (2017).
The parties were married on August 27, 2011; their daughter was born on September 11,
2013. On August 26, 2015, father filed for divorce after mother moved out of the marital home,
taking the child with her. The circuit court conducted its first evidentiary hearing on November 23,
2015, to consider pendente lite custody and visitation arrangements.2 The court ruled from the
bench, noting father’s anger toward mother and mother’s control issues. To avoid troublesome
transitions, the court endeavored to “set a schedule so that there is predictability.”
The resulting pendente lite custody order, entered December 11, 2015,3 directed that the
parties share joint legal custody, that mother have physical custody, and that father have visitation
every other weekend and every Wednesday evening. The order further established a detailed
birthday and holiday visitation schedule; for the summer, the court awarded each parent two
consecutive weeks in the months of June, July, and August, to be determined by the parties. An
issue with the summer schedule arose in June 2016, when father moved for clarification of the
order’s provisions in light of a change in his business travel needs; the court resolved the issue by
order after a hearing.
2
Prior to the hearing, two consent orders allowing father some weekend visitation were
entered.
3
Entry of the order was delayed because the parties could not agree on memorializing
language, so the court considered competing drafts and ultimately entered an order containing
numerous handwritten modifications.
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The parties’ divorce proceedings continued. The extensive litigation involved substantial
discovery and numerous filings, including objections to evidence, motions to quash, and other
contentious pre-trial issues. After several continuances, an evidentiary hearing focusing on custody
and visitation was held on November 22, 2016.
The witnesses at the hearing were profuse in their testimony as to the child’s intelligence
and good nature and her affection for both parents. The parties admitted to their problems with trust
and communication. The evidence demonstrated that mother worked only part-time, affording her
great flexibility in scheduling, while father normally worked daily from 8:00 a.m. to 5:00 p.m. and
traveled extensively, often overseas, for his government employment. Although father recently had
taken new employment to reduce his travel duties, he nonetheless reported three international trips
over eleven months and anticipated quarterly trips, averaging seven to ten days each, going forward.
Mother expressed concern about behavioral issues she was observing in the child after visits with
father. She mentioned some arm biting and an episode of self-induced vomiting. Mother
emphasized transitional issues and noted how father’s vacation travel with their daughter failed to
account for her age and rest needs in itinerary scheduling.
At the close of the hearing, the court took the matter under advisement pending receipt of
mental health examinations of father and child and carried all the divorce issues over to a March 2,
2017 hearing for final resolution. An interim order entered December 9, 2016, directed that the
December 11, 2015 pendente lite order remain in effect. When the anticipated reports were filed in
February 2017, mother challenged the release, scope, and use of the child’s report, necessitating a
continuation of the custody issues from the March hearing date.4
4
Equitable distribution and spousal support remained on the March docket, and those
issues were partially resolved by order entered March 10, 2017. The custody issues initially
were continued to April 6, 2017, but on that date the court addressed motions that had been filed,
including one regarding the admission and use of an evaluation of the child at trial.
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Trial proceeded on May 4 and 10, 2017, but the presentation of evidence was not concluded
at the end of the May 10 hearing. As a result, the circuit court carried the matter over to June 9,
2017, for an additional two hours. Further argument was presented on June 22, 2017.
Much of the testimony from these hearings focused on a transition occurring the prior
Thanksgiving weekend, when father dropped the child off with mother late and forgot to pack the
child’s favorite stuffed toy. Other relatives were present and arguments between the adults ensued
in front of the child, and the child later did not want to participate in the activities mother had
planned.
Evidence also was presented on father’s lack of communication with mother regarding his
work travel plans or event and vacation itineraries with the child; e-mail and text inquiries often
went unanswered or were responded to several hours later, and details regarding logistics were not
readily forthcoming. Mother also noted father regularly failed to communicate regarding potential
health concerns, such as rashes or injuries. The evidence demonstrated an inability of the parties to
negotiate and find consensus when unexpected issues arose.
Mother expressed concern over the child returning to her home bruised, disheveled, and
with irregular sleep patterns. Mother consistently stressed that the child was experiencing sleep
issues and was regularly overtired. Mother further suggested, based on her observations of the
child’s behavior, that the child was being exposed to negative comments regarding mother and
mother’s family.
Father’s psychological evaluation disclosed effective parenting competence with respect to
caring for his daughter, but that issues with lack of insight into the effects of his own behavior and
stubbornness likely undermined his co-parenting abilities. The evaluation of the child revealed a
child essentially developing on an age-appropriate basis, prone to emotional dysregulation upon
stressors and tiredness, most often as a result of frequent transitions throughout a day or week. The
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report also noted outbursts where the child had used words and phrases she likely had overheard her
parents say.
The circuit court issued its ruling on custody and visitation in open court on July 20, 2017.
The court first commented that the parties “have had a very difficult time in trying to co-parent this
child” and that the “mutual resentment of each parent toward the other is really what drives their
relationship and, therefore, shapes their relationship with [their daughter.]” The court noted that it
had “considered the factors under [Code § 20-124.3] in determining the best interest of the child . . .
[and] weighed each of those factors.” The court then addressed each of the factors in turn,
specifying certain findings.
The court stated, in part, that the “age, physical and mental condition of the child has been
considered of course with the due consideration of the child’s changing developmental needs. . . .
There are no abnormal physical or mental conditions of the child, who . . . is equally loved by both
parents.” The court found no evidence suggesting either parent possessed any physical or mental
condition that would impact the child.
The court continued by saying that
[b]oth parents . . ., appear to appropriately treat and care for the child
and they’re supportive . . . of her in their own way. While there
seems to be some disagreement as expected on some issues with how
the other parent interacts with the child or cares for the child, as well
as how to discipline the child.
The court further found that “both parents have a positive relationship with the child,
although they express concerns about how the child acts with the other parent” and that
“unfortunately [she] has had to experience and endure the personal conflict between her parents and
their inability to reach agreement about parenting is more likely the cause for her restlessness and
irritability at the time of transition.” The court also concluded that “[b]oth parents, going on to
factor four, should be involved in the child’s life with their equal involvement as is practicable[,]”
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for “both parents have had a positive role in [their daughter’s] upbringing but not to the level that
she deserves.”
“As to factor six,” the court stated that each parent should “be more receptive as to how the
child reacts to the other parent. From the mental health evaluation it appears that [the child’s]
behavior is sometimes over scrutinized by the mother. The child is perceptive and is probably
aware of how under the microscope she can be seen and treated.” The court completed its factor
analysis by reporting that “[t]he parents have been willing to maintain a close relationship with [the
child], . . . [b]ut the ability of each parent to cooperate with the other and resolve disputes is
unclear.”
The court then awarded joint legal custody and directed that the parents share physical
custody on a weekly basis, greatly expanding father’s time with his daughter when compared to his
visitation rights under the pendente lite order. The court, however, limited the duration of this
shared custodial arrangement, directing that upon the child’s entry into first grade, “father’s
visitation shall be every other weekend beginning Friday from when school ends . . . until Monday
morning . . . .” Noting the different demands between kindergarten and elementary school, the court
stated: “[I]t’s in the best interests of the child that she have this opportunity to be with her father on
a weekly basis. And then once she starts first grade, I think it’s more appropriate that it change to
the alternating weekends.” In discussing the court’s order, the parties raised questions regarding
certain aspects of the new arrangement, but father did not specifically challenge the court’s
authority to enter such a custody award.
The custody ruling was not memorialized until its incorporation into an order that was
entered September 6, 2017, a few days shy of the child’s fourth birthday. The order noted that the
court was entering it “based on the findings of fact as stated on the record,” after “having observed
the demeanor and credibility of the parties and their witnesses” and “having reviewed Virginia
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Code § 20-124.3 regarding custody and visitation factors.” The circuit court specifically ordered
that
[u]ntil [the child] enters first (1st) grade, each parent will alternate
physical custody of [her] on a weekly basis from Monday to
Monday. . . . Th[is] schedule . . . shall continue until [the child]
enters first (1st) grade, at which time father’s visitation shall be every
other weekend beginning Friday from school when school ends, or
5:00 PM if school is not in session, until Monday morning with the
drop off at school before school begins, or if there is no school, then
to [m]other’s residence. . . . Father’s first weekend shall begin the
Friday following Labor Day weekend the year [the child] enters first
grade.
In the ordinary course, the child was to begin first grade in the fall of 2019, roughly two years after
entry of the order.
Although the order concluded the divorce and associated property issues, in a handwritten
provision, it stated, “with respect to custody and visitation, this court’s jurisdiction is reserved and a
review hearing on those issues is hereby set on October 27, 2017 . . . to be heard by proffer. If . . .
further evidence is required after said hearing, another date shall be set by the court to take
evidence.” Both parties noted their objection to the order; father indicated that he would file his
specific objections within seven days, but the record does not contain such a filing.
A four-hour evidentiary hearing was scheduled for April 25, 2018, and then ultimately heard
on June 21, 2018. Father stated that the hearing was “to review the provisions of the custody
arrangement that the [c]ourt put forth in the September 6, 2017, order” and requested that the
then-in-place shared custody arrangement be maintained with no change of physical custody upon
the child’s entry into first grade. Mother asked that the decreed future change in custody begin
“now.” Their daughter was to start first grade in September 2019.
The hearing revealed the parties’ continued distrust and animosity towards one another. The
parents had difficulty agreeing about a wide variety of things and had disputes over the terms of
court orders, plans for the child’s birthday party, and which car safety seat to use. Mother
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complained of an inability to communicate with the child on father’s time and father’s lack of notice
to her regarding events and potential health issues. Mother further expressed concern about
negative comments about her and her family being made by father and his family in front of the
child.
Considerable time was spent discussing a school event at which father showed hostility
towards mother’s family. Father’s work travel, arranged to occur during mother’s custodial time
when possible, was highlighted again, as were the irregular hours the child was subject to when
traveling with father. Mother testified to their daughter having an increased “clinginess” when the
child returned to her home and to the child’s continued fatigue, particularly on Monday and
Tuesday, when she was unable to go to sleep at her ordinary bedtime, resulting in frequent and long
naps.
At the close of the evidence, the court asked the parties to put in writing their requested
relief. Mother requested immediate primary physical custody, or in the alternative, that the prior
ruling regarding the change in custody once the child began first grade remain in place. Father
asked that the week-on, week-off schedule continue indefinitely, arguing that the arrangement
largely had demonstrated to be successful and that a change could prove detrimental. Father did not
contend that the court could not order the prospective modification; rather he asked, “[i]f and only
if, the [c]ourt determines that it would be in [the child’s] best interest for one parent to have primary
physical custody during the school year, . . . that he be awarded same.”
The circuit court issued a written ruling on July 26, 2018, a little more than a year before the
child’s anticipated start of first grade. The court noted that its ruling was based on the child’s best
interests after applying the previously considered factors. The court denied the parties’ respective
“motion[s] for reconsideration as to the physical custody schedule effective during [their daughter’s]
[f]irst [g]rade” because “nothing has changed.” Prior to entry of a memorializing order, however,
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the court sua sponte issued a “Clarification Order” on August 30, 2018, whereby the court requested
the parties, as they deemed appropriate, to submit written closing arguments for its consideration.
In his filing, father, for the first time, objected to the anticipated change in custody on legal
grounds, specifically contending that the order’s provision “is not a remedy supported by the case
law of the Commonwealth of Virginia.” Citing cases involving a potential future relocation of a
parent, father argued that a “court cannot indulge in sheer speculation about what may be in the best
interests of the child at some imprecise time in the future by providing for an automatic change in
custody based upon a future event that may or may not occur.”
“Having received and fully considered the written closing arguments,” the circuit court
issued a “Modification Memorandum Opinion” on October 24, 2018. The court maintained its
previous rulings. The court explained its reasoning, writing:
The [c]ourt is well aware of the typical increased demands on a
young child entering elementary school. The parties did not offer
evidence that [the child’s] full-time school will be anything but
typical. It will be in [her] best interest to be in [m]other’s home
during the school week, instead of the week-on and week-off current
schedule. Based on the record and the [c]ourt’s consideration of the
nature, personality and character of the child as described by the
parents and numerous witnesses, the [c]ourt finds that she will need
the stability of one home location during the school year. The [c]ourt
also finds that allowing [f]ather to have visitation with [his daughter]
on all weekends would not be in the best interests of [the child], as it
would deprive [her] of quality time with [m]other outside of the
school week. Therefore, the [c]ourt finds that if [the child] enters
first grade, the custody schedule will follow as previously ordered.
In rendering its decision, the circuit court further commented that it “finds the relationship
between these parents is one of the most dysfunctional [it] ha[d] encountered[,]” and noted that
[t]he parents appear to seek almost any issue to fight over. It could
appear to a reasonable person that if one parent wants one thing, the
other will oppose it simply because the other is making the request.
If the parents applied one-tenth of their efforts opposing each other to
finding common ground, this litigation could dissipate and [their
daughter] could have a more normal life with these parents.
However, presently, that does not seem possible.
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After further disagreement between the parties as to drafting language, the circuit court
finally memorialized its rulings when it entered its “Final Order for Custody and Visitation” on
January 11, 2019, less than eight months prior to the start of the 2019 school year. The order
specifically directed that the court’s previous order of September 6, 2017, remain in force, adding
however that “[i]f [the child] does not enter [f]irst [g]rade, the [week-on, week-off] custody
schedule currently in place shall remain in effect, and the parties shall forthwith place the matter on
the [c]ourt’s docket to explain why she has not entered first grade.”
Father appeals. He asserts that it was error for the circuit court to order in September 2017
that the “alternating weekly” custody arrangement that the court ordered at that time would
“automatically change . . . when [the child] enters first grade, presumably [in] September of
2019[.]”5 In support of his assertion, father argues that the circuit court could not order such a
prospective change in custody and that, even if it could, such a change was not supported by the
circuit court’s own findings.
ANALYSIS
I. Standard of Review
“We begin our analysis by recognizing the well-established principle that all trial court
rulings come to an appellate court with a presumption of correctness.” Stiles v. Stiles, 48 Va. App.
449, 453 (2006) (quoting Riggins v. O’Brien, 263 Va. 444, 448 (2002)). “In matters of custody,
visitation, and related child care issues, the court’s paramount concern is always the best interests of
the child.” Bedell v. Price, 70 Va. App. 497, 504 (2019) (quoting Farley v. Farley, 9 Va. App. 326,
327-28 (1990)). “The circuit court has ‘broad discretion in making the decisions necessary to guard
5
The child began first grade on September 3, 2019. During the pendency of this appeal,
but prior to September 2019, father moved this Court to stay the provision of the circuit court’s
order that altered the custody arrangement when the child began first grade and further requested
that we expedite oral argument in the matter so that a decision would issue by August 31, 2019.
We denied the motion and heard the case in the normal course.
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and to foster a child’s best interests.’” Eaton v. Dep’t of Soc. Servs., 66 Va. App. 317, 324 (2016)
(quoting Farley, 9 Va. App. at 328). “A trial court’s determination with regard to [custody and]
visitation is reversible only upon a showing that the court abused its discretion.” Bedell, 70
Va. App. at 504 (quoting Stadter v. Siperko, 52 Va. App. 81, 88 (2008)).
“An abuse of discretion occurs only when reasonable jurists could not differ as to the
proper decision.” Reston Hosp. Ctr., LLC v. Remley, 63 Va. App. 755, 764 (2014) (internal
quotation marks omitted) (quoting Brandau v. Brandau, 52 Va. App. 632, 641 (2008)). Thus,
although a court “definition[ally] abuses its discretion when it makes an error of law[,]” Robbins
v. Robbins, 48 Va. App. 466, 475 (2006) (quoting Congdon v. Congdon, 40 Va. App. 255, 262
(2003)), the abuse of discretion standard “necessarily implies that, for some decisions,
conscientious jurists could reach different conclusions based on exactly the same facts—yet still
remain entirely reasonable[,]” Hamad v. Hamad, 61 Va. App. 593, 607 (2013). Our use of this
deferential standard of review “rests on the venerable belief that the judge closest to the contest
is the judge best able to discern where the equities lie.” Id.
II. Circuit Court’s “Prospective Modification”
In addressing father’s challenge to what he terms the circuit court’s “prospective
modification” of the custody arrangement, it is important to recognize what father does not
challenge. He does not challenge the circuit court’s decision to award 50-50 custody of the child on
an alternating, weekly basis nor does he assert that the circuit court was without the authority to
impose the current custodial arrangement—physical custody with mother during the school year
with father having limited weekend visitation—from the outset. Rather, he challenges the circuit
court’s power to do both: order the 50-50 custody arrangement for a two-year period to terminate
upon the child’s entering first grade with mother becoming the primary custodian from that point
forward. Thus, although he recognizes that the circuit court could have awarded primary custody to
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mother in 2017, he argues that the circuit court could not, in its initial custody award, order a
temporary, fixed period of 50-50 custody to be followed “automatically” by the current
arrangement.
In support of his argument, father notes that we previously have held that “[a] custody
determination must be based on the child’s best interests under the circumstances prevailing at
the time of the decision.” Wilson v. Wilson, 12 Va. App. 1251, 1255 (1991). In Wilson, upon
which father relies, the circuit court awarded Mrs. Wilson primary physical custody of the
parties’ then nine-year-old child and “authorized Mrs. Wilson’s move with the son to Nashville,
Tennessee[.]” Id. at 1254. However, the circuit court conditioned its award of primary custody
to Mrs. Wilson on her remaining in Nashville, ordering “that should she move from that location,
primary custody of the son would automatically transfer to Mr. Wilson.” Id.
We reversed. Stressing the need for custody determinations to be made based on the
circumstances as they exist at the time the decision is made, we held that the provision that
granted custody to Mr. Wilson upon a move by Mrs. Wilson no matter the circumstances was an
abuse of discretion, writing that
a change of location may be a material change in circumstances, if
the evidence at the time so indicates. However, a predetermined
automatic reversal of primary custody, based on an undetermined
move in the future, is clearly an abuse of discretion. A move from
Nashville to another location at some time in the future may prove
to be in the son’s best interests. However, this cannot be
determined until the move is contemplated and all the
circumstances associated with it are known.
Id. at 1255-56 (emphasis added). In short, we held it was error for the circuit court to
prospectively order a change in custody based upon the occurrence of an unknown event, which
the parties were not then contemplating, that may or may not occur at some unknown time in the
course of nearly a decade (the remaining period of the child’s minority).
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Father argues that Wilson provides the rule of decision, requiring that we reverse the
circuit court’s custody decision in this case. There are, however, significant differences between
the situation in Wilson and the circumstances here.
Unlike the unknown speculative event in Wilson, the “future” event here was not
unknown or merely conjectural; at the time of the circuit court’s initial custody order in
September 2017, it was all but certain that the child would enter first grade at some point in the
relatively near future, likely in September 2019.6 Both parents contemplated that this entry
would occur, and, although they had not reached such an agreement in 2017, they had agreed by
2018 which elementary school the child would attend for first grade. Finally, there was little to
no evidence to suggest that there would be any other significant changes in the time from the
circuit court’s order to the child starting first grade. Thus, unlike the situation in Wilson, the
triggering event here was not a speculative, unknown event, beyond the contemplation of the
parties, that may or may not happen sometime in the ensuing decade; it was a known, all but
certain event, specifically contemplated by parties, that was reasonably certain to happen at a
specific known time in the next two years. These are not distinctions without differences.
Accordingly, Wilson does not dictate that we conclude that the circuit court erred.
Even though Wilson does not mandate reversal, we must address whether, under the
specific facts and circumstances of the case, the custody arrangement crafted by the circuit court
is permissible. For the following reasons, we conclude that it is.
6
Although the child’s entry into first grade in 2019 was all but assured, the circuit court
made allowances for the unlikely event that the child did not enter first grade as planned. First, it
established a review hearing to allow it to make certain that the child’s educational progress was
occurring in the normal course. Second, in its January 2019 order, the circuit court included a
provision for what was to take place if the child did not begin first grade in September 2019 as
anticipated.
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As father stresses, “[a] custody determination must be based on the child’s best interests
under the circumstances prevailing at the time of the decision.” Wilson, 12 Va. App. at 1255.
This requirement, however, does not require a circuit court to ignore the future. Although it
must view the future as it appears that it will be as of the date of the decision, it is permissible for
a circuit court to take the future into account.
In fact, it would be error for the circuit court not to consider future events in crafting a
custody decree. After all, the custody determination is to be made for the best interests of the
child going forward, not merely the best interests of the child on the day of entry of the order.
Accordingly, the statutory factors explicitly require the circuit court take the future into account.
See, e.g., Code § 20-124.3(1) (requiring a court to consider “the age and physical and mental
condition of the child, giving due consideration to the child’s changing developmental needs”
(emphasis added)); Code § 20-124.3(5) (requiring a court to consider “[t]he role that each parent
has played and will play in the future, in the upbringing and care of the child” (emphasis added)).
Such future considerations are evident in custody orders entered daily throughout the
Commonwealth. Orders routinely contain provisions dictating with whom a child will spend spring
break, birthdays, and holidays for years into the future. Taking the future into account also
influences more permanent custody arrangements. For example, a circuit court certainly can
determine that a child’s best interests would be best served by awarding custody to the parent who
lives in a preferred school district.7 In short, a circuit court does not necessarily abuse its discretion
in basing its custody decision on future events so long as the future events are viewed as they appear
at the time the decision is made.
7
This example is offered for illustrative purposes only. We recognize that the parents in
this case reside in the same school district.
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To his credit, father recognizes that there necessarily will be a future component in any
custody order. He acknowledged at oral argument that the circuit court did not have to wait until
the child began first grade to enter an order such as this one in this case, conceding that the circuit
court permissibly could have ordered this arrangement based on evidence taken thirty days before
the child entered first grade.8 He argues that the larger time gap here renders the circuit court’s
decision an abuse of discretion.
We disagree that the two-year gap here constitutes an abuse of discretion.9 The circuit court
heard extensive evidence regarding the development and intellectual abilities of the child. It was
clear from the evidence that the child was virtually certain to begin first grade in 2019, meaning the
precise time of the change was known. Furthermore, there was more than sufficient evidence from
8
Given father’s contention that a two-year gap was too long and his concession that a
thirty-day gap would have been permissible, we asked father at oral argument where he would
have us draw the line between the two. In short, how far in advance is too far? He demurred,
stating that he could not specify a precise point where such a time gap became impermissible.
We note this not to criticize father. As discussed below, the inability to draw such a bright line
rule stems from the best interests of the child standard and the need to craft custody
arrangements to serve the interests of an individual child.
9
We refer to the time period as a two-year gap because the order effectuating the custody
arrangement was entered in September 2017 and the child entered first grade in September 2019,
slightly less than two years later. The parties, however, characterize the gap differently. Mother
argues that, given the multiple review hearings and the fact that the circuit court’s last order on
the subject was entered in January 2019, the gap was less than nine months. This ignores that,
once the September 2017 order was entered, the parties were no longer at equipoise, with father
needing to show a material change in circumstances to effectuate a change in the arrangement set
forth in the September 2017 order. See generally Keel v. Keel, 225 Va. 606 (1983). Mother
conceded at oral argument in this Court that this placed father at a disadvantage in the review
hearings. Thus, the September 2017 order is the critical order for determining the circuit court’s
ability to order this arrangement making the two-year gap the relevant time period.
Father argues that the relevant gap is larger than two years because the circuit court orally
issued its order from the bench in July 2017, two months prior to the entry of the order, and
based its decision on evidence taken before that point. Given “that a circuit court speaks only
through its written orders[,]” Berean Law Grp., P.C. v. Cox, 259 Va. 622, 626 (2000), and the
fact that the order memorializing the ruling was entered relatively close in time to the
announcement of the ruling from the bench, we believe the time gap is appropriately viewed as a
two-year gap.
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which the circuit court could conclude that the transition between custodians had a negative impact
on the child. Based on the degree of acrimony between the parents and the length of time that it had
existed, it was reasonable for the circuit court to conclude that the difficulties in transition and the
negative effects they had on the child would continue indefinitely and certainly would exist in two
years when the child began first grade.10 It also was reasonable for the circuit court to conclude that
the negative impact of these difficult transitions would be magnified once the child began dealing
with more significant academic demands, meaning that the negative effects of a 50-50 custody
arrangement during the academic year were also known. Thus, the circuit court, viewing the
evidence as it existed at the time, could reasonably conclude that the child’s best interests would be
served by having a primary custodian once she entered first grade.
Rather than simply order that such an arrangement begin in 2017, the circuit court also
concluded that the child’s best interests would be served by spending more time with her father in
her formative years than the existing pendente lite order allowed. Accordingly, the circuit court
carefully crafted a hybrid, compromise solution that greatly increased father’s time with the
child, until such time that, in the view of the circuit court, those benefits would be outweighed by
the negative effects associated with weekly transitions between custodians during the school year
would have on the child’s academic development.11 From the record, it is clear that the circuit
10
Although the circuit court was required to base its decision on the state of the evidence
at the time of its ruling, we note that the subsequent conduct of the parents demonstrates that the
circuit court was prescient in this regard.
11
In his arguments, father assumes that, if the circuit court had been denied the ability to
order the hybrid arrangement, it necessarily would have ordered the 50-50 custody arrangement.
From the record, it is not clear that, if confined to an either/or choice, the circuit court would
have selected the 50-50 custody arrangement. Thus, it was possible that the circuit court may
have elected to impose the current custodial arrangement, physical custody with mother during the
school year with father having limited weekend visitation, from the outset. Although father argues
that allowing such a hybrid arrangement diminishes the time he has custody of the child, it may
be the case that the hybrid arrangement actually increased his custodial time with the child over
what it otherwise would have been.
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court, using the best interests of the child as its guiding principle, considered all of the facts and
circumstances and rendered a conscientious decision. Although we may have reached a different
result in the first instance, we cannot say, based on the record before us, that the circuit court
abused its discretion in concluding as it did.
Although we find the circuit court did not abuse its discretion under the specific facts and
circumstances in this case, our opinion should not be taken as a wholesale endorsement of
“automatic” changes in custody arrangements based on the occurrence of a future event. Even in
somewhat similar circumstances, differences in the likelihood of the future event occurring, the
degree of certainty as to when the event will occur, the degree to which the parties contemplated
the event, and the time between the initial custody hearing/order and the potential occurrence of
the event, combined with other facts and circumstances, may still render such orders an abuse of
a circuit court’s discretion. See Wilson, 12 Va. App. at 1256.
Unfortunately, it is impossible to state a general rule applicable to all cases that specifies
how far in the future is too far, how uncertain a future event is to occur is too uncertain, or how
little contemplation of the future event by the parties is too little before a circuit court’s decision
becomes an abuse of discretion. This is because child custody decisions are not decided on the
basis of bright line rules; rather, they are decided by applying the best interests of the child
standard to the specific facts in individual cases. By its very nature, such a legal standard is not
amenable to the creation of hard and fast rules, but rather, confers discretion upon the decision
maker.12 Because the best interests of the child standard is intended to and does grant the
12
The subject of the relative costs and benefits of adopting as a rule of decision bright
line rules or more malleable standards has been the subject of much discussion in the legal
literature, with one academic describing the distinction between the two as follows:
What separates rules from standards? The distinction depends in
large part on specificity. The paradigmatic “rule” falls toward the
high end of the specificity spectrum; it ascribes definitive
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decision maker considerable latitude so that the best possible result for a specific child can be
achieved, it is difficult and sometimes impossible to know whether a particular decision
constitutes an abuse of discretion without the benefit of knowing all of the facts and
circumstances that informed the decision.
III. Circuit Court’s Findings and Consideration of Statutory Factors
Father also contends that the circuit court’s custody ruling constituted an abuse of discretion
and a “clear error of judgment” because “the court’s ruling . . . was not a conclusion that followed
reasonably from the court’s findings under the [statutory] factors[.]” In short, father argues that,
assuming the circuit court had the power to make the custody decision it did, the statutory factors
and the circuit court’s determination of the facts should have led to a different outcome.
As noted above, circuit courts are granted “broad discretion” in making custody
determinations. Brown v. Brown, 30 Va. App. 532, 538 (1999). Although a circuit court must
consider the statutory factors found in Code § 20-124.3, it determines how to weigh those factors
and “is not ‘required to quantify or elaborate exactly what weight or consideration it has given to
each[.]’” Id. (internal quotation marks and citations omitted). On appeal, we do not reweigh the
factors to see if we would have reached a different conclusion; rather, so “long as evidence in the
consequences to the satisfaction of precise and determinate criteria.
“Must be at least five feet tall to ride,” for instance, leaves little
room for interpretation: if you are at least five feet tall, you can go
on the ride; if you are shorter than five feet, there is no use waiting
in line. The paradigmatic “standard,” by contrast, leaves many
application-related details unresolved. “Must be mature enough to
ride,” for instance, offers only a hazy definition of eligible riders.
What does the sign mean by “mature”? Who counts as “mature
enough”? Many would-be riders cannot know in advance whether
they will get to ride. They must await a final decision maker’s
judgment to find out whether they may step aboard.
Michael Coenen, Rules Against Rulification, 124 Yale L.J. 644, 652 (2014) (footnotes omitted).
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record supports” the circuit court’s determination and it “has not abused its discretion, its ruling
must be affirmed on appeal.” Id.
Father concedes that the circuit “court addressed the factors under Virginia Code
§ 20-124.3” in determining the custody arrangement. On brief, father reviews the findings the
circuit court made regarding the statutory factors and argues that, weighed differently, they support
a different result. Although the record reasonably can be read in the manner suggested by father, it
is not how the circuit court balanced the factors. Because evidence supported the circuit court’s
factual findings that underlie the circuit court’s weighing of the factors and there is nothing
inherently unreasonable in its weighing of those factors, “its ruling must be affirmed on appeal.”
Id.
In addition to his argument that the circuit court should have reached a different result by
weighing the factors differently, father argues that the circuit court abused its discretion
regarding the factors by basing its conclusion on a “belief” as opposed to evidence. We disagree.
Central to father’s argument is the circuit court’s statement at the initial custody hearing
that its decision was made “in light of the [c]ourt’s belief of what is in the best interest of the
child . . . .” According to father, this statement is “striking” because it reveals that the circuit
court’s “ruling was based on [its] belief of what is in the child’s best interest, not on the evidence
that had persuaded the court of that result.”
Such a characterization of the circuit court’s statement is only possible if the statement is
ripped from its context. The statement was made after multiple hearings related to the custody
issue during which the circuit court heard from at least ten witnesses. It was made immediately
after the circuit court had informed the parties of its review of the statutory factors found in Code
§ 20-124.3, including references to pieces of evidence that caused the circuit court to make
specific findings. Viewed in the proper context, it is clear that the “belief” referenced by the
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circuit court was a belief the circuit court formed after extensive thought and a thorough review
of the evidence presented. Thus, the statement in context demonstrates the fidelity of the circuit
court to the serious task before it: determining what custody arrangement would serve the best
interests of the child.13
To further his argument, father points to a statement the circuit court made as a result of
the review hearing in July 2018. At that hearing, father requested that the circuit court leave in
place the 50-50 custody arrangement then in place and not allow the previously ordered change
to occur when the child entered first grade. In its written ruling denying that relief, the circuit
court explained why it would not change its previous custody decision; the court was
well aware of the typical increased demands on a young child
entering elementary school. The parties did not offer evidence that
[the child]’s full-time school will be anything but typical. It will
be in [the child]’s best interest to be in [m]other’s home during the
school week, instead of the week-on and week-off . . . schedule.
Father argues that this demonstrates an abuse of discretion because the circuit court relied not on
evidence, but rather, its own awareness of the “typical increased demands” associated with a
child beginning elementary school.
It is, of course, true that a factfinder must base its decision on evidence presented rather
than mere surmise or conjecture. However, it is equally true that factfinders, whether jurors or
trial judges, do not abandon their common sense or experience in performing their function. Cf.
Schneider v. Commonwealth, 230 Va. 379, 383 (1985) (explaining that a trial judge as factfinder
is entitled to use “common sense” in evaluating testimony); Morton v. Commonwealth, 13
13
If anything, the circuit court’s use of the word “belief” demonstrates welcome
humility. Faced with what charitably could be described as the parents’ acrimonious
relationship, the circuit court was attempting to pick the best custody arrangement for the child
from less than optimal options. No judge, trial or appellate, faced with such a situation can know
with certainty that he or she successfully has landed on the best custody arrangement for the
child. The most that can be hoped for is a reasonable belief, based on the evidence, that he or
she has done so.
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Va. App. 6, 11 (1991) (recognizing that “[t]o measure the likelihood of occurrence of an inferred
fact, a court may rely on common experience or the evidence in the case” (internal quotation
marks and citation omitted)); Va. Model Jury Instrs.—Civ. No. 2.000 (jurors may use “common
sense in considering the evidence”). As a result, factfinders may draw inferences from the
evidence so long as those inferences do not “defy logic and common sense.” Fox Rest Assocs.,
L.P. v. Little, 282 Va. 277, 283 (2011) (quoting TB Venture, LLC v. Arlington Cty., 280 Va.
558, 563 (2010)).
The circuit court’s conclusion that first grade would be more demanding for the child
than pre-school or kindergarten is such a reasonable inference. Absent any evidence that even
suggested the contrary, a rational factfinder could reach such a conclusion. There is simply
nothing unreasonable in concluding that first grade was likely to be more demanding than
kindergarten. Accordingly, the circuit court drew a reasonable inference from the evidence and
did not abuse its discretion in doing so.14
CONCLUSION
Resolving custody disputes between fit parents is a difficult task. The degree of difficulty
increases exponentially when, as here, both parents clearly love the child, but appear incapable of
working together for the benefit of the child. Because the child is the unintended victim in such
scenarios, circuit courts are charged with protecting the child’s best interests and are granted
significant discretion and latitude to craft custody arrangements to ensure as much as possible that
the child’s interests are, in fact, served and protected.
14
This is not to say that another factfinder, considering the same evidence, necessarily
would have concluded that first grade was more demanding on the child than what came before it
or that any new demands from first grade would result in the child’s best interests being served
from having the same custodian during the school week. Rather, it simply is a recognition that
the circuit court’s conclusions in this regard fit within the “bell-shaped curve of reasonability[,]”
Hamad, 61 Va. App. at 607, that entitle them to deference on appeal.
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Here, the circuit court conducted numerous hearings over a lengthy period, repeatedly
giving the parties more time than had been scheduled, to establish the relevant facts and
circumstances that existed at the time of its decision. Based on those facts and circumstances and
the reasonable inferences it drew from them, the circuit court reasonably determined that the hybrid
custody arrangement it crafted served the child’s best interests. Based on the record before us, we
cannot say that no reasonable jurist could have reached this conclusion. Accordingly, the circuit
court did not abuse its discretion, and its judgment is affirmed.
Affirmed.
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