Jeffrey M. Edmonds v. Linda M Edmonds

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
JEFFREY M. EDMONDS
MEMORANDUM OPINION *
v. Record No. 2186-98-4 PER CURIAM
JUNE 15, 1999
LINDA M. EDMONDS
FROM THE CIRCUIT COURT OF WARREN COUNTY
John E. Wetsel, Judge
(E. Eugene Gunter; Derrick W. Whetzel; Law
Office of E. Eugene Gunter, on brief), for
appellant.
No brief for appellee.
Jeffrey M. Edmonds (husband) appeals the decision of the
circuit court awarding custody of the parties' three children to
Linda M. Edmonds (wife) and deciding other issues. On appeal,
husband contends that the trial court erred by (1) awarding wife
custody of the parties' children despite the fact that she was
cohabitating with another man; (2) classifying the Warren County
real estate as wife's separate property; and (3) awarding wife
seventy percent of the net proceeds from the sale of the Montana
real estate. Upon reviewing the record and opening brief, we
conclude that this appeal is without merit. Accordingly, we
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
summarily affirm the decision of the trial court. See Rule
5A:27.
The record on appeal contains the trial court's Findings of
Fact and Conclusions of Law, husband's Written Statement of
Facts, Testimony, and Other Incidents of the Case, as modified
by the trial judge, and wife's response to husband's written
statement, also as modified by the trial judge. On appeal,
we view [the] evidence and all reasonable
inferences in the light most favorable to
the prevailing party below. Where, as here,
the court hears the evidence ore tenus, its
finding is entitled to great weight and will
not be disturbed on appeal unless plainly
wrong or without evidence to support it.
Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App.
15, 20, 348 S.E.2d 13, 16 (1986).
Custody
Husband contends that the trial court erred by awarding
custody of the parties' three children to wife because wife was
cohabitating with her fiancé, a convicted felon. He further
contends that wife's immoral relationship had a deleterious
effect on the children.
In Brown v. Brown, 218 Va. 196, 237 S.E.2d 89 (1977), the
Supreme Court of Virginia stated that
[t]he moral climate in which children are to
be raised is an important consideration for
the court in determining custody, and
adultery is a reflection of a mother's moral
values. An illicit relationship to which
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minor children are exposed cannot be
condoned. Such a relationship must
necessarily be given the most careful
consideration in a custody proceeding.
Id. at 199, 237 S.E.2d at 91. However, cohabitation does not
create a per se bar to custody. See Sutherland v. Sutherland,
14 Va. App. 42, 43, 414 S.E.2d 617, 618 (1992). In all cases,
it is the best interests of the children that guide the trial
court's custody decision.
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.
Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795
(1990) (citations omitted). See Code § 20-124.2(B) ("In
determining custody, the court shall give primary consideration
to the best interests of the child.").
The evidence set out in the written statements of facts
indicated that, at the time of the hearing, wife's fiancé lived
with wife and the children. Wife testified that she and her
fiancé planned to marry after entry of the parties' divorce. In
the trial court's Findings of Fact and Conclusions of Law, the
court noted that
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[wife] claimed that the [husband] had a
violent temper, and from time to time, the
[husband] was physically and verbally
abusive toward the wife and the children
after the wife's father died in September
1995. At the time of separation, the
parties had a very tempestuous relationship
which adversely affected the children.
The written statements of facts indicated that, on July 4, 1996,
husband beat wife in front of the children and threatened to kill
her by pointing a gun to her head. On that same day, husband held
the head of the oldest child under water in a swimming pool.
Other evidence demonstrated that wife was the primary
caretaker during the marriage and following the separation. She
was the parent that was involved in school activities and helped
with homework. The children advised the guardian ad litem they
wanted to stay with wife.
While husband alleged that there was evidence to support his
contention that wife's cohabitation with her fiancé had a
deleterious effect upon the children, the record contains no
evidence supporting that conclusion.
Based upon the record, we cannot say that the trial court's
decision to award wife custody was unsupported by the evidence or
otherwise an abuse of discretion.
Warren County Property
"Fashioning an equitable distribution award lies within the
sound discretion of the trial judge and that award will not be
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set aside unless it is plainly wrong or without evidence to
support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732,
396 S.E.2d 675, 678 (1990). "Unless it appears from the record
that the trial judge has not considered or has misapplied one of
the statutory mandates, this Court will not reverse on appeal."
Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630
(1989).
Husband contends that the trial court erred by finding that
the Warren County real estate titled solely in wife's name was
wife's separate property. He argues that he made substantial
improvements to the property that resulted in an increase in its
value. Thus, husband contends, he has a claim to the increased
value under Code § 20-107.3(A)(3)(a). However, after reviewing
husband's evidence concerning the purported improvements he made
to the Warren County property during the marriage, the trial court
noted that
[i]n every instance the husband's reported
values . . . are based on his estimates of
the cost of materials and of the value of
his time, or of the reasonable value of
heavy equipment to which he had access at no
cost by virtue of his employment or which he
rented on one occasion to build one of the
two small ponds which he constructed on the
property. The Husband produced no evidence
of the incremental value which these
improvements added to the overall value of
the property.
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Moreover, husband's evidence regarding an increase in value
of the property during the marriage as a result of his efforts was
irrelevant under Code § 20-107.3(A)(3)(a) because the property did
not belong to wife when the improvements were allegedly made.
Husband alleged that he made the improvements prior to or during
1995. However, wife's parents owned the property as tenants by
the entirety at that time. It passed to wife's mother by
operation of law in 1995 upon the death of her father. Wife
purchased the property from her mother in June 1996, only six
months prior to the parties' final separation.
In addition, no evidence proved that wife used marital funds
to purchase the property. Husband contends that wife received a
gift from her mother to the extent that wife purchased the farm
for less than its actual value. Even if that analysis were true,
it does not support husband's claim. "Separate property is . . .
(ii) all property acquired during the marriage by bequest, devise,
descent, survivorship or gift from a source other than the other
party." Code § 20-107.3(A)(1) (emphasis added).
Therefore, husband has failed to demonstrate error in the
trial court's finding that the Warren County real estate was
wife's separate property.
Montana Property
Husband also contends that the trial court failed to properly
weigh the statutory factors set out in Code § 20-107.3(E) when it
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awarded him only thirty percent of the sale proceeds from the
Montana real estate. We disagree. Wife testified that she used
$20,000 in separate property to purchase the Montana real estate.
The Montana property was only one portion of the trial court's
distribution of the parties' total marital estate. There is no
"statutory presumption of equal distribution" under Virginia's
equitable distribution scheme, Papuchis v. Papuchis, 2 Va. App.
130, 132, 341 S.E.2d 829, 830 (1986), and the trial court's
Findings of Fact and Conclusions of Law demonstrates that it
considered the statutory factors when making its award. "A trial
court, when considering these factors, is not required to quantify
the weight given to each, nor is it required to weigh each factor
equally, though its considerations must be supported by the
evidence." Marion v. Marion, 11 Va. App. 659, 664, 401 S.E.2d
432, 436 (1991). Husband has not demonstrated reversible error.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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