David L Forrester v. Phyllis E Rienzo-Forrester

• Court: Court of Appeals of Virginia
• Decided: October 22, 2002
• Docket: 0348024
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Benton and Senior Judge Overton Argued at Alexandria, Virginia

DAVID L. FORRESTER MEMORANDUM OPINION * BY v. Record No. 0348-02-4 JUDGE NELSON T. OVERTON OCTOBER 22, 2002 PHYLLIS E. RIENZO-FORRESTER

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY M. Langhorne Keith, Judge

Robert D. Dain (Cherise Dyann Cuevas; Dain, Oxley, Markley & Nicoli, P.L.L.C., on briefs), for appellant.

Susan Massie Hicks (Susan Hicks & Associates, P.C., on brief), for appellee.

David L. Forrester, father, appeals the decision of the

trial court awarding sole legal custody and sole physical

custody of the parties' two children to Phyllis E.

Rienzo-Forrester, mother. Father contends the trial court erred

in: (1) failing to consider all of the factors of Code

§ 20-124.3 in awarding sole custody to mother; (2) determining

the quantity of visitation awarded to father; (3) finding that

mother was and is the primary caregiver of the children and that

mother and father are unable to cooperate on issues involving

the children; (4) failing to consider father's payment of

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. one-half of the mortgage payment on the jointly owned marital

residence as a deviation in calculating child support; (5)

ordering father's continuing payment of one-half of the

mortgage; and (6) determining the amount of child support

awarded to mother. Mother also requests attorney's fees

incurred in this appeal. Finding that the trial court did not

err, we affirm the decision of the trial court. We also deny

mother's request for attorney's fees.

FACTS

The parties were married for about fifteen years. They

have two children, who were twelve and eight years old at the

time of the November 20, 2001 custody hearing. At that time,

the court had ordered exclusive use of the marital residence to

mother. Father continued to pay one-half of the mortgage

payment.

Mother is a computer sales representative who works about

sixty percent of the time out of her home office. She has a

flexible work schedule, allowing her to attend children's

functions during the day. Mother's annual income was about

$130,000 in 2001. Mother earned $300,000 the previous year, but

she indicated that she had cashed some stock options during that

year, which were added to her income. Mother also stated that

the field of technology sales is now "difficult."

- 2 - Mother testified that, during the marriage, she performed

about eighty to ninety percent of the household activities and

care of the children. She did the family's laundry, grocery

shopping, and cooking. Both parties drove the children to and

from activities.

Prior to the custody hearing, the parties had reached

several mutual agreements concerning child custody and

visitation, but mother testified there had been problems with

overnight visitation with father during the school year.

Mother stated that the children would get less sleep, lack

school supplies, and generally have less stability in their

lives when they stayed with father overnight during the school

week. Mother also testified concerning several incidents where

father made last minute changes to planned visitation schedules.

Mother described father as a "reasonably good parent."

Mother testified she would encourage the children to spend

as much time as possible with father in the future. However,

she also stated that she believes father uses "poor judgment

sometimes." She gave examples such as when he left the children

unattended in the home.

On one occasion when father expressed a desire to have the

children visit his therapist, mother took the children to her

parents' home in Fredericksburg and advised father that she

refused to return with the children until he agreed not to take

- 3 - them to his therapist. Father obtained an emergency custody

hearing for the next day, and the parties then entered a

"fifty-fifty" custody schedule.

Several of mother's friends testified that mother is a good

parent and often attends functions with the children. Several

witnesses testified on father's behalf, but most of the

witnesses knew father through work or tennis relationships and

had not witnessed many interactions between him and the

children.

Mother requested that she have custody of the children

during the school week since she has been their primary

caregiver and so that the children would have stability and

consistency in their lives.

Father testified that he earns about $91,250 per year.

Father testified he has been close to the children their whole

lives, and he had an "equal important part" in their parenting.

He stated that he changed diapers, attended soccer games and

swimming lessons, and read books on parenting, children's

development, and discipline. Father testified he meets the

children's emotional and intellectual needs and is involved in

their activities. Father described himself as caring and loving

and stated that he has not interfered with the children's

relationship with their mother, although he and mother have had

disagreements on certain issues.

- 4 - Father believes he has been flexible with visitation

changes requested by mother. He testified that mother has

unreasonably denied him access to the children on two occasions.

There was also an altercation between the parties which resulted

in mother being arrested. The charges were later dropped.

Father stated he has attempted to communicate with mother

"via whatever medium [she] will accept." He has used e-mail,

voice mail and telephone calls. The parties have used a

mediator in an effort to determine visitation issues, but were

unable to resolve the issues. Father stated that the children

love to visit him overnight.

Father testified that his job offers a flexible schedule,

allowing him to attend activities with the children. Father

disagreed with mother's testimony that the children get less

sleep when they stay with him during the week.

Father asked for shared custody and presented a proposed

visitation schedule.

The trial court awarded mother sole legal and physical

custody of the children. The court then established a

visitation schedule. The trial court stated:

I've considered the appearance in the manner of the witnesses on the stand and the credibility of all the witnesses in making this decision. And in particular course I've considered all the factors in [Code §] 20-124.3. But in particular, and I'll

- 5 - mention these factors, three, four, five and seven.

The court found that both parents had a "strong

relationship" with the children and "there's certainly no way

the scales come down one way or the other on that issue." The

court further found that the ability to accurately assess the

needs of the children favored mother. The trial court found

that father's request for an "equitable division of time" seemed

to focus on father's needs and not the children's needs. The

court expressed concern that father on occasion made decisions

"of questionable judgment" concerning the children.

The trial court found mother's testimony that the children

need stability to be "very credible." The court also found

that, while father "had a major role in the upbringing" of the

children, mother "had been and continues to be the primary

caregiver." The court stated that both parents are "extremely

willing and have demonstrated that willingness to maintain a

close relationship." However, the trial court found the

evidence was "overwhelming" that the parents "do not cooperate

and can't resolve their disputes." The court stated that this

was one of the "major factors" it considered in deciding that

shared custody was "just not an option" in the case.

The trial court found that mother's income is $11,397 per

month and father's income is $7,627 per month. Work-related

- 6 - child care costs are $339 per month, and medical insurance is

$43 per month, which mother pays. The court ordered father to

pay mother $970 per month in child support. The court also

ordered that father continue to pay one-half of the monthly

mortgage payment until the parties resolve equitable

distribution issues.

The trial court stated that the parties should resolve the

equitable distribution issues as quickly as possible so that one

party would take over the mortgage payment or the parties would

sell the house "or whatever they agree upon."

ANALYSIS

On appeal, we review the evidence in the light most favorable to the prevailing party below. . . . Where the record contains credible evidence in support of the findings made by that court, we may not retry the facts or substitute our view of the facts for those of the trial court.

Ferguson v. Stafford County Dep't of Soc. Servs., 14 Va. App.

333, 336, 417 S.E.2d 1, 2 (1992).

When determining which parent should have custody the trial

court must decide what is in the best interests of a child and

it is required to consider the factors listed in Code

§ 20-124.3. The trial court is not required to quantify or

elaborate on what weight or consideration it has given to each

of the factors in Code § 20-124.3 or to weigh each factor

equally. See Sargent v. Sargent, 20 Va. App. 694, 702, 460

- 7 - S.E.2d 596, 599 (1995). The trial court is vested with broad

discretion to safeguard and promote the child's interests, and

its decision will not be reversed unless plainly wrong or

without evidence to support it. See Farley v. Farley, 9

Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990).

The record demonstrates that the trial court carefully

considered and weighed the evidence and considered the factors

set forth in Code § 20-124.3. In its ruling from the bench, the

court elaborated on factors three, four, five and seven of the

statute. Furthermore, the trial court's decision focused on the

best interests of the children.

The record indicates that both parents have a strong bond

with the children; however, the trial judge found mother was and

is the primary caregiver. Moreover, the record shows that the

parties are often unable to resolve disputes concerning the

children, supporting the trial court's finding that a shared

custody arrangement is not feasible. The parties were

unsuccessful in their attempt to resolve custody and visitation

issues through the use of a mediator. In addition, the trial

court heard evidence of police intervention during one

altercation between the parties. On another occasion, a dispute

between the parties concerning the care of the children resulted

in an emergency custody hearing. There were accusations that

the parties exchange messages with one another, telling the

- 8 - other parent of a change in plans instead of communicating and

resolving issues. Thus, the custody decision of the trial court

was not plainly wrong or without evidence to support it.

Determination of visitation rights is a matter of judicial

discretion. Eichelberger v. Eichelberger, 2 Va. App. 409, 412,

345 S.E.2d 10, 11 (1986). This Court will not set aside the

trial court's decision on visitation unless plainly wrong or

without evidence to support it. Farley, 9 Va. App. at 328, 387

S.E.2d at 795.

The trial court ordered that father have visitation on

alternate weekends and on two evenings during the school week.

The trial court declined to order a shared custody arrangement

for the summer months for the same reasons it declined to order

a shared custody arrangement for the school year. The court

ordered an equitable and alternating division of the children's

summer vacation time, and it ordered the parties to split or

alternate holidays. Given the trial court's finding that the

children need stability in their lives and that a shared custody

arrangement is not feasible in this case, the visitation

schedule was not an abuse of discretion.

"[D]ecisions concerning child support rest within the sound

discretion of the trial court and will not be reversed on appeal

unless plainly wrong or unsupported by the evidence." Barnhill

v. Brooks, 15 Va. App. 696, 699, 427 S.E.2d 209, 211 (1993). "A

- 9 - rebuttable presumption exists that the amount derived from the

guidelines, Code § 20-108.2, is correct." Auman v. Auman, 21

Va. App. 275, 277, 464 S.E.2d 154, 155 (1995).

Father did not rebut the presumption that the amount of

child support derived from the guidelines is correct. The trial

court determined mother's salary based on her most recent income

figures. No evidence indicated that mother is voluntarily

underemployed. Rather, her sales income fluctuates with market

conditions. Thus, no evidence indicates that the presumptive

amount of child support was unjust or inappropriate.

The trial court also ruled that the parties would continue

to split the monthly mortgage payment until an equitable

distribution hearing was scheduled. Evidence was presented that

the parties had previously agreed to this arrangement, and no

equitable distribution hearing had been scheduled. Although

Code § 20-108.1(14) provides that the court may consider

provisions made pursuant to the equitable distribution statute

when determining whether to deviate from the presumptive child

support guidelines, here, there had been no property

distribution at the time the court decided the support issues.

Therefore, the trial court did not err in ruling that the

parties continue to evenly divide the monthly mortgage payment

until the equitable distribution hearing and that this

- 10 - arrangement would have no effect on the calculation of child

support at this time.

Mother requests attorney's fees expended on this appeal.

"We have said that 'the key to a proper award of counsel fees

. . . [is] reasonableness under all of the circumstances

revealed by the record.'" Westbrook v. Westbrook, 5 Va. App.

446, 458, 364 S.E.2d 523, 530 (1988) (citation omitted). Father

had reasonable grounds for this appeal. Therefore, mother's

request is denied. See Gayler v. Gayler, 20 Va. App. 83, 87,

455 S.E.2d 278, 280 (1995).

Accordingly, the decision of the trial court is affirmed.

Affirmed.

- 11 - Fitzpatrick, C.J., concurring, in part, and dissenting, in part.

I concur with the opinion in matters other than the

attorney's fee issue. I would remand for an assessment of

partial attorney's fees incurred in this appeal as father did

not have reasonable grounds for all of his issues.

- 12 -