Audra Jane Acchione v. Geoffrey Lawrence Acchione

COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia
AUDRA JANE ACCHIONE
MEMORANDUM OPINION* BY
v. Record No. 2401-05-4 JUDGE JEAN HARRISON CLEMENTS
AUGUST 22, 2006
GEOFFREY LAWRENCE ACCHIONE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Jr., Judge
Mark B. Sandground, Sr. (Sandground New & Lowinger, P.C., on
brief), for appellant.
Susan Leslie-Fraser (The DARA Law Group, P.C., on brief), for
appellee.
Audra Jane Acchione (mother) appeals from an order of the trial court awarding primary
physical custody of the parties’ two minor children to Geoffrey Lawrence Acchione (father). On
appeal, she contends (1) the evidence was insufficient to support the award of custody, (2) the trial
court abused its discretion by failing to consider all of the factors of Code § 20-124.3, and (3) the
trial court abused its discretion by assuming facts not in evidence. For the reasons that follow, we
affirm the judgment of the trial court.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
The parties were married on October 28, 1995. Two children were born of the marriage, a
son, R., on April 30, 1997, and a daughter, A., on June 23, 2000. On August 24, 2004, the parties
separated. Mother instituted a suit for divorce, and the contest for custody over the children ensued.
On September 13, 2004, the trial court entered a pendente lite order awarding the parties joint legal
and physical custody of both children and granting mother exclusive use of the marital residence.
R. and A. were to reside with mother at the marital residence during the week and with father at his
residence on weekends. On July 19, 2005, a two-day custody hearing commenced before the trial
court, at which time the parties presented their evidence. “[W]e summarize th[at] evidence in the
light most favorable to the prevailing party below.” Brown v. Brown, 30 Va. App. 532, 535, 518
S.E.2d 336, 337 (1999).
So summarized, the evidence established the following relevant facts. R. is eight years old.
Following the parties’ separation, he began to have difficulty controlling his anger and emotions.
For example, he became “belligerent,” “disrespectful,” and “disruptive” toward authority figures,
threw tantrums, and destroyed personal property (a DVD player) not belonging to him. A. is five
years old. She suffers from neither mental nor physical difficulties. Although A. demonstrated
separation anxiety after the parties’ separation, her insecurities diminished in the months that
followed.
Father is 42 years old, mentally and physically healthy, and employed full-time during the
week. Although he had difficulty maintaining employment during the marriage due to numerous
labor force reductions, he consistently retained new employment following these reductions. Father
drinks on a daily basis and frequently does so in front of the children. No evidence was presented,
however, to demonstrate that he suffers from alcoholism or that his drinking has negatively
impacted his employment or parenting abilities.
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Mother is 37 years old, physically healthy, and employed part-time on weekends. She
maintained such employment steadily throughout the marriage. Although she suffers from no
mental illness, she has demonstrated conduct that is explosive, impulsive, and self-focused.
The evidence provides numerous examples of such conduct. For instance, on the July 4,
2004 weekend, the parties were involved in a marital dispute. During the dispute, mother
repeatedly smashed father’s vehicle with a wrench in the presence of R. and A. Father testified to
this incident. In a later incident, on August 22, 2004, mother began screaming, kicking furniture,
throwing objects around, and verbally assailing father’s parents when they declined to leave the
marital residence upon her demand. Georgia Acchione, father’s mother, and Nichole Acchione, his
sister-in-law, testified to this incident.
Father provided additional examples of wife’s unseemly conduct. Following the July 4,
2004 incident, father initiated marital counseling for the parties. Mother attended the counseling,
but declined to constructively participate, stating to him, “We don’t need counseling. This is your
problem.” Furthermore, mother threatened “hundreds of times” over a “number of years” to divorce
father and run away with the parties’ children. She uttered these threats when she did not get her
way. For instance, she threatened to run away with the children when father refused to place ceiling
fans in every room of the marital residence upon her demand. On August 22, 2004, she carried out
her threats. Following the dispute that day, mother placed R. and A. in her vehicle and drove to
New York. Father did not see the children for three weeks.
Chelsea R. Mahon, a lifeguard, testified that mother came to her swimming pool with the
parties’ children for R.’s diving meets. During one particular meet, R. was diving from one end of
the pool and A. was playing in the other end. As mother watched R. dive, A. fell from her play toy
in the pool and began to drift under the water. Chelsea dove into the water to rescue her. After she
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rescued A., mother, who was upset, stated in a non-jesting tone, “If she drowns I won’t sue.”
Chelsea testified that this incident constituted the third such rescue of A. while mother was present.
Mother was the primary caretaker of the children during the week and provided parental
services necessary for their rearing. She fed, clothed, and groomed the children, attended to their
medical needs, and provided transportation to and enrollment in school and extracurricular
activities. She also volunteered at the children’s schools and actively participated in their academic
and social lives. On weekends, father cared for the children. He, too, provided primary parental
services, assisted the children with their academics and social activities, and participated therein.
Father related exceptionally well to the children. For example, he regularly engaged in
playtime with the children, read them bedtime stories, and participated in activities that were of their
particular interest, such as playing video games with R. and drawing with A. Cynthia McDermott,
father’s sister, testified to this relationship and explained that mother did not relate to the children in
this way. Father was also attentive to R.’s weight problem and assisted him with weight loss by
going for bike rides with him, playing at parks with him, and feeding him non-junk foods.
Each party hired and provided testimony from a psychological expert, and each expert
bolstered the parental abilities and fitness of the hiring party. The evidence demonstrated, however,
that father was a more calming and patient disciplinarian with the children. Nichole Acchione
testified that father showed follow through with his discipline and was able to calm R. down during
his tantrums, which was an “art in itself.” She testified that she had once observed mother
discipline R. by screaming loudly at him.
R.’s participation in extracurricular activities highlights mother’s unilateral decision-making
regarding the children. Without consulting father, she enrolled R. in numerous extracurricular
activities, which met as often as three to four nights per week. She enrolled him in activities that
met when he resided with father. She also enrolled R. in summer camp without discussing the
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matter with father. Father protested R.’s participation in numerous extracurricular activities,
especially wrestling. He explained that wrestling would contribute to R.’s aggressive conduct and
emotional difficulties.
R. and A. are close to one another and have a close relationship with father’s extended
family, particularly with his parents who live in Virginia. The testimony of Nichole Acchione and
Georgia Acchione established that this relationship was very attentive and loving. Father’s parents
cooked, drew, and played games with the children. Father resides with his parents, and he testified
that the children would reside there as well if he was awarded custody. He testified that his parents
would assist in the children’s care during the week while he was at work. Dr. Leigh Hagan, father’s
psychological expert who performed a “parental capacity” evaluation of father, testified that father
had made “arrangements for the children’s care in his absence” and father’s “mother would be a
resource” for after-school childcare during the week while father was at work.
Having considered these facts, the trial court observed that the award of custody must be
“based on the resolution of principally one and only one issue: What is in the best interests of the
parties’ children . . . ?” In reaching its decision, the trial court noted that it had “taken into account
the factors contained in Virginia Code Section § 20-124.3” and an additional factor concerning “the
effects of the parties’ occupations” on the children. The trial court awarded primary physical
custody to father, emphasizing that he had a “greater insight and patience necessary to rear his
children” and that “[w]hile [mother] is presumed to be a fit parent, . . . she has very significant
personal and emotional problems that detract from her ability to meet the developmental needs of
her children at this time.” The trial court further ordered mother to begin parenting and anger
management classes.
This appeal followed.
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II. ANALYSIS
Mother challenges the trial court’s award of primary physical custody to father. She
contends the evidence was insufficient to support the award, the trial court abused its discretion by
failing to consider all of the factors of Code § 20-124.3, and the trial court abused its discretion by
assuming facts not in evidence. We disagree.
“In issues of child custody, ‘the court’s paramount concern is always the best interests of
the child[ren].’” Vissicchio v. Vissicchio, 27 Va. App. 240, 246, 498 S.E.2d 425, 428 (1998)
(quoting Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990)). “In determining
the best interests of the child[ren], the trial court must consider the statutory factors identified in
Code § 20-124.3.” Brown v. Burch, 30 Va. App. 670, 684, 519 S.E.2d 403, 410 (1999). Code
§ 20-124.3 enumerates the factors to be considered as follows:
1. The age and physical and mental condition of the child,
giving due consideration to the child’s changing developmental
needs;
2. The age and physical and mental condition of each
parent;
3. The relationship existing between each parent and each
child, giving due consideration to the positive involvement with
the child’s life, the ability to accurately assess and meet the
emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other
important relationships of the child, including but not limited to
siblings, peers and extended family members;
5. The role that each parent has played and will play in the
future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the
child’s contact and relationship with the other parent, including
whether a parent has unreasonably denied the other parent access
to or visitation with the child;
7. The relative willingness and demonstrated ability of
each parent to maintain a close and continuing relationship with
the child, and the ability of each parent to cooperate in and resolve
disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court
deems the child to be of reasonable intelligence, understanding,
age and experience to express such a preference;
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9. Any history of family abuse as that term is defined in
§ 16.1-228. If the court finds such a history, the court may
disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and
proper to the determination.
Although the trial court must consider these factors, “it is not ‘required to 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)). Rather, “trial courts are vested with
broad discretion in making the decisions necessary to guard and to foster [the children’s] best
interests.” 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, 30 Va. App. at 538, 518 S.E.2d at 338.
A. Sufficiency of the Evidence
Applying the aforementioned principles, we hold that the evidence was sufficient to
support the trial court’s award of primary physical custody to father. At the outset, the trial court
correctly observed that the award of custody must be “based on . . . the best interests of the parties’
children.” The trial court then carefully examined the above-summarized evidence as it pertained to
the custody factors of Code § 20-124.3. Fulfilling its statutory obligation, the trial court explicitly
considered all of the factors of Code § 20-124.3 and further considered, pursuant to its broad
discretion under subdivision 10 of the statute, “the effects of the parties’ occupations.”
Cognizant of the children’s best interests, the trial court emphasized certain findings of fact.
The trial court emphasized that father possessed a “greater insight and patience necessary to rear his
children” and that mother’s “very significant personal and emotional problems . . . detract[ed] from
her ability to meet the developmental needs of her children.” The evidence supports these findings.
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The testimonial evidence demonstrated that father possessed a “greater insight and patience
necessary to rear his children.” Father testified that he protested R.’s participation in wrestling,
explaining that such an activity would only contribute to his aggressive behavior and emotional
difficulties. Nichole Acchione testified that father was a calm and patient disciplinarian with R. and
that he showed “follow through” with the children. Cynthia McDermott testified that father related
well with the children. Dr. Hagan, father’s psychological expert, opined that father was a fit,
patient, and tolerant parent, that he possessed “sufficient insight and understanding about his
children’s needs, and that he . . . possessed . . . the ability to meet those needs; that is to meet the
needs of the children on their own terms.” Dr. Hagan further opined that father possessed the
qualities necessary to be the primary caretaker of the children.
Furthermore, the evidence demonstrated that mother’s “very significant personal and
emotional problems . . . detract[ed] from her ability to meet the developmental needs of her
children.” On numerous occasions, and even in front of the children, she displayed conduct that
was explosive, impulsive, and self-focused. The testimonial evidence spoke to these occasions,
which included, but were not limited to, the destruction of father’s personal property during a
dispute, a combative altercation with his family, numerous threats of divorce and running away with
the children, the ultimate realization of these threats, a lack of attentive focus for A.’s safety, and
explosive disciplinary conduct with a son who had already been demonstrating problematic
behavior.
Mother further argues the trial court erred by failing to consider the impact of father’s work
schedule on his ability to care for the children, that the trial court abused its discretion by ordering
her to attend parenting and anger management classes, and that the trial court erred by giving
primary weight to the testimony provided by father’s witnesses, who were also his relatives. These
arguments fail. The record demonstrates that the trial court explicitly considered “the effects of the
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parties’ occupations” in its Code § 20-124.3 examination, including the impact of father’s work
schedule on his ability to care for the children. The record also demonstrates that parenting and
anger management classes for mother were appropriate based on the evidence presented.
Furthermore, assuming the trial court gave primary weight to father’s witnesses, the trial court did
not err in doing so because “[t]he credibility of witnesses and the weight to be accorded their
testimony is a matter exclusively within the province of the trier of fact.” Yopp v. Hodges, 43
Va. App. 427, 439, 598 S.E.2d 760, 766 (2004). Acting within this province, the trial court
permissibly weighed the testimonial evidence in father’s favor.
B. Code § 20-124.3 Custody Factors
We further hold that the trial court did not abuse its discretion in its consideration of the
custody factors of Code § 20-124.3. Mother contends the trial court failed to consider all of the
statutory factors prior to awarding custody. Specifically, she argues the trial court failed to
consider the “fitness of the parties” and the role that father will play in the future in the
upbringing and care of their children. Her arguments are without merit.
The record demonstrates that the trial court considered the aforementioned items. First,
the trial court explicitly considered the “threshold” issue of the “fitness of the parties” prior to its
Code § 20-124.3 examination:
The parties have each called expert witnesses who have
qualified as such. In evaluating their testimony, I’ve considered
the factual foundation for their opinions, and have considered
whether or not their opinions are persuasive in view of that
foundation and in view of the explanations for their opinions.
In the end, generally speaking, each expert has been called
to bolster the parenting abilities of the parent who has hired them
to afford such an opinion. Both have testified that one or the other
parent was a fit parent. That conclusion, however, it seems to me,
after listening to arguments of counsel, really was not an issue in
dispute. Obviously, they have also afforded additional insights
into each of the parties. Lack of unfitness, however, does not
much advance the difficult issues before me.
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Apparent in this language is the trial court’s finding that neither party successfully proved the
other party’s parental “unfitness.” Additionally, the trial court, when addressing mother’s
emotional problems, stated that “[mother] is presumed to be a fit parent.” Given these examples,
we conclude that the trial court considered the fitness of the parties.
Furthermore, the trial court considered the role that father has played and will play in the
upbringing and care of the children. Indeed, the trial court explicitly considered “factor five” of
Code § 20-124.3, which is “[t]he role that each parent played and will play in the future, in the
upbringing and care of the child.” In addressing this factor, the trial court pointed to father’s
positive relationship with the children and emphasized that each parent must, in the future,
cooperate and communicate with one another for the children’s development. The trial court
also observed that father was “more capable than [mother] in assessing his children’s needs and
in meeting their emotional and physical needs” and that father’s extended family would assist
him in the short-term future with the care of the children while he worked “long hours” during
the week. The court noted that father “would see the children” only on weekends and “for a
brief period of time in the evenings” during the week.
As we previously noted, the trial court considered all of the statutory factors prior to
awarding custody. And, as we also previously mentioned, the court need not have quantified or
elaborated what weight or consideration it gave any particular statutory factor. Given the record
before us, we hold that the trial court did not abuse its discretion in conducting its Code
§ 20-124.3 examination.
C. Assumption of Facts not in Evidence
Finally, mother contends the trial court abused its discretion by assuming facts not in
evidence. She asserts the trial court improperly assumed father’s mother would care for the
parties’ children during the week while father was at work even though father presented no
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evidence to support that assumption. Finding ample evidence in the record to support the
reasonable inference that father’s mother would assist father in caring for his children during the
week, we disagree with mother’s contention.
Testifying on behalf of father, Dr. Hagan specifically stated that father made
“arrangements for the children’s care” during his absence on weekdays. She testified that
father’s “arrangements” included calling upon his mother for assistance with the children’s care.
Additionally, father testified that he discussed the care of his children with his parents and that
they were willing to assist while he was at work. Such assistance was facilitated by the fact that
father and the children would reside with the parents and the fact that father’s parents had a very
close relationship with the children. Because this evidence supports the trial court’s finding, we
hold the trial court did not abuse its discretion in declaring that father’s “parents will have to
become childcare providers. . . . His mother . . . in the short run can play this role.”
III. CONCLUSION
For these reasons, we affirm the judgment of the trial court.
Affirmed.
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