Richard J. Myers v. Jennifer D. Myers

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
RICHARD J. MYERS
v. Record No. 2740-95-4 MEMORANDUM OPINION *
PER CURIAM
JENNIFER D. MYERS JULY 23, 1996
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Thomas S. Kenny, Judge
(Nan M. Joseph; Ann W. Mische; Byrd, Mische,
Bevis, Bowen, Joseph & O'Connor, on brief),
for appellant.
(Glenn H. Silver; Silver & Brown, on brief),
for appellee.
Richard J. Myers (father) appeals the decision of the
circuit court awarding custody of the parties' two children to
Jennifer D. Myers (mother). No transcript of the four-day
hearing was filed with the appeal. Father accepts the trial
court's factual findings, but argues that, based upon those
findings, the trial court erred as a matter of law when it
awarded sole custody of the children to mother. Father also
argues that the court erred as a matter of law in granting
custody to mother because of concerns about what she or her
family might do if she was not granted custody. Upon reviewing
the record and briefs of the parties, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
decision of the trial court. Rule 5A:27.
"In any child custody decision, the lodestar for the court
is the best interest of the child." Smith v. Pond, 5 Va. App.
161, 163, 360 S.E.2d 885, 886 (1987). "[O]n review the 'decision
of the trial judge is peculiarly entitled to respect for he saw
the parties, heard the witnesses testify and was in closer touch
with the situation than the [appellate] Court, which is limited
to a review of the written record.'" Sutherland v. Sutherland,
14 Va. App. 42, 44, 414 S.E.2d 617, 618 (1992) (citation
omitted). "[T]hese matters are left largely to the discretion of
the trial court whose judgments will not be reversed in the
absence of a showing that the discretion given has been abused."
Id.
In this appeal, the court's factual determinations are not
challenged. Father argues that the court's findings, as a matter
of law, demonstrate error because the court failed to consider
the factors contained in Code §§ 20-124.2 and 20-124.3. We
disagree.
The court found that "neither of the parents in this case is
a particularly desirable choice for me" and noted that "I don't
think that either one of you is doing a very good job." The
court found that recently father "has been certainly trying to
establish a relationship with the kids and to make visitation
with the kids when he does have them, a meaningful and loving
experience." However, he had made only "feeble efforts to have
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any contacts with his children until well after the separation
had been in place" and had "little concern about the situation in
which you had left your wife in trying to raise two very
difficult children." The court also stated "to say for the last
two summers you [father] haven't had any opportunity to get
around to having visitation with these boys for whom you lately
have come to have such concern, doesn't persuade me a whole great
deal."
The court found that mother was "not a bad parent," that she
"has borne the burden, along with a lot of help with her parents
. . . of raising these children to this state for the last six
years," and that "the children will be physically okay in her
care." The court found that granting sole custody to mother was
"the only way that we will have any opportunity, or any
possibility of successfully getting these children through to
being young adults."
Father contends that, by awarding sole custody to mother,
the court failed to consider factor 6 of Code § 20-124.3, which
provides:
6. The propensity of each parent to actively
support the child's contact and relationship with
the other parent, 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
matters affecting the child . . . .
The court's findings, however, demonstrate that the court
considered this factor, and found that the parents' inability to
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communicate with each other eliminated any possibility of joint
custody. The court stated:
I think the best interests of the children
are going to require a sole custody award
here. Somebody has to be able to make the
decisions without having another parent
shoehorning into these decisions, and
interfering in school, and that sort of
thing. Because, frankly, I just don't think
that these parents are able to do that.
Implicit in this conclusion is the determination that neither
parent would foster communication or a relationship with the
other parent.
Moreover, it is apparent that the trial court reached its
determination to award custody to mother based upon its
evaluation of the best interests of the children. The court
acknowledged that mother had not been fully cooperative, noting
that its decision might "seem to have been rewarding what I
perceive to be some obstructionism on [mother's] part." However,
the court stated:
Frankly, my real concern about giving sole
custody of these children in this case to
[father] is that the reaction by [mother] and
her parents would be so profoundly adverse
and negative to that, they would never let it
rest.
I just don't see -- and I can understand that.
After having been through the initial experiences
here that you've been through, to lose custody of
the children at this point would be so devastating
and so traumatic, that I don't think it would
work.
This case would never rest. This case would
just keep coming back, and back, and back.
And these children would just be destroyed in
the process. There would be no way that a
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successful conclusion would result from
awarding sole custody to Mr. Myers.
(Emphasis added.)
While the court did not specifically refer to the statutory
factors, it is apparent from the record that the court considered
the factors and that the court's decision was based upon the
children's best interests. We cannot say, based upon the record
before us, that the court abused its discretion.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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