James B. Montgomery v. Patricia Talbot

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia
JAMES B. MONTGOMERY
MEMORANDUM OPINION *
v. Record No. 2555-96-2 BY JUDGE JOSEPH E. BAKER
JULY 15, 1997
PATRICIA TALBOT
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Ronald S. Evans (Jay O. Millman; Brenner,
Dohnal, Evans & Yoffy, P.C., on brief), for
appellant.
No brief or argument for appellee.
In this appeal from the Circuit Court of Chesterfield County
(trial court), the controlling issue presented is whether the
trial court erred in holding that it was in the best interests of
the children of James B. Montgomery (father) and Patricia Talbot
(mother), formerly husband and wife, that custody of the parties'
minor children "shall be shared jointly by the parties consistent
with the previous arrangements of the parties as to physical
custody."
The father and mother were divorced by decree entered in the
trial court on August 28, 1989. At that time the children were
1
ages five and three. The divorce decree approved an agreement
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
The children are James B. Montgomery, III, born on May 12,
1984, and Mae Ann Collins Montgomery, born March 28, 1986.
(PSA) made on September 19, 1988 wherein the parties agreed to
"split custody" of the children as follows:
Unless modified by mutual agreement after
consultation with the children, physical
custody shall be vested in each of the
parties on alternating weekends beginning
8:00 a.m. on Saturday and ending 8:00 a.m. on
Monday. Holidays shall also be alternated
but, to the extent mutually agreed to, shall
be included as part of the general weekend
visitation. At Christmas both children shall
spend Christmas Eve with one parent and
Christmas Day with the other, with other
Christmas holiday arrangements to be by
mutual agreement.
Physical custody during normal weekdays
shall be as follows:
a. 8:00 a.m. Monday through 8:00 a.m.
Tuesday, and 8:00 a.m. Wednesday through 8:00
Thursday with [father];
b. 8:00 a.m. Tuesday through 8:00 a.m.
Wednesday, and 8:00 a.m. Thursday through
8:00 a.m. Friday with [mother]; and
c. 8:00 a.m. Friday through 8:00 a.m.
Saturday [father] and [mother] each have one
child on an alternating basis.
On November 20, 1989 the parties executed an addendum to the
September 19, 1988 PSA which, in relevant part, provided that in
lieu of the custody provisions in the former agreement, physical
custody should be as follows:
1. Custody: With respect to page 4,
paragraph 8 of the [PSA], and in lieu of the
language contained therein, the following
physical custody schedule shall apply:
a) Monday and Tuesday with [mother];
7:30 a.m. pickup on Tuesday by [mother] when
applicable
b) Wednesday and Thursday with [father]
c) Friday, Saturday and Sunday
alternated between [mother] and [father].
The following holiday schedule shall
replace the previously stated holiday
schedule in the [PSA]:
a) Thanksgiving vacation period: from
- 2 -
Thanksgiving Day through subsequent Sunday,
with one parent and alternating thereafter.
Effective 1989, this vacation period with
[father]
b) Christmas vacation period: Christmas
Eve with one parent; Christmas Day from 12:00
noon through return to school with other
parent and alternating thereafter. Effective
1989, this vacation period with [father]
c) Easter/Spring vacation period: this
vacation period shall correspond with the
public school spring break. Effective 1990,
this vacation period with [mother], and
alternating thereafter.
d) Memorial Day: effective 1990, with
[father] and alternating thereafter
e) July 4: effective 1990, with [mother]
and alternating thereafter
f) Labor Day: effective 1990, with
[father] and alternating thereafter.
The record is unclear; however, it appears that the addendum was
submitted to the juvenile and domestic relations district court
(district court) and approved.
On August 8, 1995, 2 both father and mother, among other
things, requested the district court to eliminate the split
custody requirement and direct where the children would be
required to attend school. On October 18, 1995, the district
court held:
1. Custody of the said children shall be
shared jointly by the parties consistent with
the previous arrangements of the parties as
to physical custody.
2. James B. Montgomery, III, shall
continue to attend Dinwiddie Public Schools.
3. Mae Ann Montgomery shall attend
Dinwiddie Public Schools unless father elects
to enroll her at St. Joseph's School at his
own voluntary expense. It is expressly
2
At that time, the children were eleven and nine years of
age.
- 3 -
ORDERED that such expense is to be a
voluntary one by father alone and one which
shall not be deducted from any child support
obligations of father. Said election is to
be made on or before August 18, 1995.
And all other motions of the parties are
dismissed, there having been no evidence
presented for the Court's consideration
thereof.
Mother appealed the district court findings to the trial
court. When the matter came before the trial court, the
children's ages were twelve and ten. Mother resided in Dinwiddie
County, and father resided in Chesterfield County. In a letter
dated August 22, 1996, the trial court ruled as follows: "The
Court will adopt the ruling of the [district court], as its
ruling." Father appealed the trial court's ruling to this Court.
In an appeal from a decision of the juvenile and domestic
relations district court to the circuit court, the matter must be
heard de novo. See Peple v. Peple, 5 Va. App. 414, 425, 364
S.E.2d 232, 239 (1988) (Baker, J., concurring). It is clear from
the trial court record that both parents complied with all
previous decrees concerning custody; that father and mother, from
their custodial experience, concluded that it would be in the
best interests of the children to eliminate the split custody
arrangement; and that the evidence supported the parents' desire
to discontinue the split custody requirement and to have the
trial court determine what change would be in the children's best
interests. The record discloses that the children suffered under
the arrangement that required their mid-week transfer from one
- 4 -
parent's home to the other. There is no evidence to the
contrary.
Because the record fails to show evidence sufficient to
support the trial court's decision, we reverse and remand this
case to the trial court with direction that it hear such further
evidence relating to the best interests of the children and
render a decision in accord therewith.
Reversed and remanded.
- 5 -