Gregory A. Haase v. Karen U. Haase

• Court: Court of Appeals of Virginia
• Decided: October 10, 1995
• Docket: 1175941
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Koontz, * Elder and Senior Judge Duff

GREGORY A. HAASE

v. Record No. 1175-94-1 OPINION BY JUDGE LAWRENCE L. KOONTZ, JR. KAREN U. HAASE AUGUST 22, 1995

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH A. Bonwill Shockley, Judge

Lawrence D. Diehl for appellant.

Moody E. Stallings, Jr. (Kevin E. Martin-Gayle; Stallings & Richardson, P.C., on brief), for appellee.

Gregory A. Haase (father) appeals various decisions of the

Circuit Court of the City of Virginia Beach in a decree of

divorce a vinculo matrimonii from his former wife, Karen U. Haase

(mother), based upon a report and recommendation of James A.

Evans, Commissioner in Chancery (commissioner), awarding custody

of the couple's two minor children, Benjamin, age twelve, and

Emily, age eight 1 , to mother. Father contends that the

chancellor erred (1) in approving the commissioner's decision

over the objection of a parent to receive testimony from the

couple's children where expert testimony suggested that requiring

the children to testify would be detrimental to their welfare;

(2) in approving the commissioner's decision to receive the

children's testimony in an informal proceeding in camera without * Justice Koontz prepared and the Court adopted the opinion in this case prior to his investiture as a Justice of the Supreme Court of Virginia. 1 The children were eleven and six at the time of the commissioner's hearing relevant to this appeal. counsel or the parties present; and (3) in adopting the

commissioner's findings of fact and awarding sole custody to the

mother. For the following reasons, we affirm the chancellor's

decisions. I.

FACTUAL AND PROCEDURAL BACKGROUND

The couple married in 1980 and separated in 1991. After

seventeen months separation, mother filed for divorce on the

ground of separation for more than one year without hope of

reconciliation. Mother sought sole custody of the children.

Father denied a mutual separation had occurred, asserting that he

retained a hope of reconciliation. He charged in a cross-bill

that mother was guilty of desertion and adultery, alleged that

the couple shared joint custody of the children at that time

pursuant to a juvenile and domestic relations district court

(juvenile court) order confirming a custody agreement, and sought

sole custody of the children. Mother denied the allegations of

desertion and adultery but admitted the existing custody 2 arrangement. The Honorable Robert B. Cromwell, Jr., then chancellor of

record, referred the matter to the commissioner. During the

commissioner's first hearing, mother indicated that she desired

to have Benjamin give evidence to the commissioner in camera with

2 The joint custody agreement was arrived at through a family mediation program. It provided for a weekly time share schedule and holiday visits.

-2- counsel, but not the parties, present. As counsel for father was

not aware of this request prior to it being made, the

commissioner deferred action on the request at that time.

At a subsequent hearing, father objected to having Benjamin

testify, asserting that it would be psychologically harmful to

Benjamin. A licensed professional counselor testified that

Benjamin was torn between his parents and had been alienated

against his father by his mother. After additional argument, the commissioner ruled that he

would receive evidence from the children in camera with neither

the parties nor counsel present. Father objected that this was

not proper procedure absent consent of the parties and because of

evidence that the children had been coached. The commissioner

suggested that the parties could seek a directive from the court

"if [the parties] want me to do it any other way." Prior to the

children testifying at a third hearing, father renewed his

objection before the commissioner but did not seek a directive

from the court. The children then testified in camera without counsel or the parties present. The testimony took the form of a

conversation directed by questions from the commissioner on

various subjects, including school, summer activities, friends

and the children's relationship with each parent.

Father and his lay and expert witnesses maintained that

mother was disinterested in the children's welfare, that she had

interfered with the joint custody arrangement and father's

-3- attempts to promote family counseling, and that she had attempted

to alienate Benjamin against his father. Father further

maintained that he had curtailed his medical practice in order to

spend more time with the children to compensate for mother's lack

of interest, resulting in a significant decrease in income.

Father outlined a plan for providing child care and maintaining

the former marital home so that the children would continue in

the same schools. Mother and her witnesses testified that father burdened the

children with too many activities and used them as pawns in his

reconciliation attempts. An expert witness for father conceded

that Benjamin did not like the intense schedule of activities

prepared by his father. He further testified that Benjamin was

"afraid of his father" and "feels he is on a whirlwind trip."

Mother's evidence countered the father's claim that she was

disinterested in the children's upbringing and education. Mother

asserted, in a letter admitted into evidence, that she refused to

participate in counseling because the counsellor had a prior

professional relationship with father.

At the conclusion of all of the testimony, the commissioner

found that the existing joint custody arrangement was not in the

children's best interest and recommended that mother be given

sole custody with holiday and extended summer visitation for

father. Pursuant to Rule 2:18(c), the commissioner filed his

report and a transcript of the proceedings and testimony,

-4- including the testimony of the children in the in camera

interview, with the clerk of the circuit court. Father excepted

to the commissioner's recommendation regarding custody and filed

a motion with the chancellor requesting that the issue be

referred to the juvenile court. The chancellor adopted the

commissioner's findings and recommendations, granting the divorce

on the grounds of the mother's adultery and desertion, while

awarding sole custody of the children to mother. This appeal

followed. II.

AUTHORITY OF THE COMMISSIONER IN CHANCERY

"A commissioner in chancery is an officer appointed by the

chancellor to aid him [or her] in the proper and expeditious

performance of his [or her] official duties." Raiford v.

Raiford, 193 Va. 221, 226, 68 S.E.2d 888, 891 (1952). When a

court refers a cause to a commissioner in chancery, it does not

delegate its judicial functions to the commissioner. Lawrence v.

Lawrence, 212 Va. 44, 47, 181 S.E.2d 640, 643 (1971). Thus, the

commissioner, while functioning as an independent judicial

officer, is a surrogate for the chancellor and is subject to the

chancellor's control. Conversely, the actions of the

commissioner are not binding on the chancellor, who must exercise

independent judicial judgment over the evidence presented in the

commissioner's report. Once adopted by the chancellor, however,

the actions, findings and recommendations of the commissioner

become those of the supervising court and are due considerable

-5- deference on appeal. See Brawand v. Brawand, 1 Va. App. 305,

308, 338 S.E.2d 651, 652 (1986).

In undertaking the receipt of evidence, the commissioner

must be cognizant of the rules of evidence and procedure

applicable to proceedings in chancery. However, the

commissioner's hearing is not a trial, and the standards

applicable to such proceedings are necessarily relaxed in order

to accommodate the judicial economy contemplated by the statutory

authorization of the office of commissioner. See Code

§ 8.01-607. Accordingly, the manner in which the commissioner

requires the parties to produce evidence, calls and examines

witnesses, and rules on the admissibility of evidence is

entrusted to the commissioner's discretion "unless otherwise

directed by the decree of reference" or an amendment thereto

sought and obtained by a party. Rule 2:18. III.

CALLING THE CHILDREN AS WITNESSES

Recognition of the potential conflict between the interests

of parents and their children in custody cases has been firmly

established in Virginia law. See Williams v. Woolfolk, 188 Va.

312, 317, 49 S.E.2d 270, 272 (1948). Although the wishes of the

child are not controlling, the commissioner may properly consider

that preference and give weight to it in making a custody

recommendation to the chancellor. See Hall v. Hall, 210 Va. 668,

672, 173 S.E.2d 865, 868 (1970); Hepler v. Hepler, 195 Va. 611, 620, 79 S.E.2d 652, 658 (1954). Prior to receiving evidence from

-6- the child, the commissioner must determine that the child is "of

reasonable intelligence, understanding, age and experience to

express such a preference." Code § 20-124.3(7); see also Durant

v. Commonwealth, 7 Va. App. 454, 462, 375 S.E.2d 396, 400

(1988)(trial court's judgment as to competence of child witness

will not be disturbed on appeal absent manifest error).

Here, the commissioner elected to receive evidence from the

children in order to determine their preference as to custody as

is contemplated by Code § 20-124.3. Despite father's assertion

that the experience of being compelled to testify would be

detrimental to the children, we cannot say that the commissioner

abused his discretion in electing to examine the children. The

evidence presented by father was equivocal and speculative as to

the potential harm. The commissioner was privileged to consider

father's self-interest in seeking to obstruct the receipt of

evidence from the children and in weighing the credibility of the

evidence presented by father seeking to accomplish that end.

Moreover, the record adequately supports a conclusion that these

children, although young, were of sufficient intelligence,

understanding and experience to express their views concerning

their custody. IV.

THE IN CAMERA INTERVIEW No person who is a party to a divorce proceeding--litigant,

counsel, or chancellor--relishes the spectacle of a child

testifying in open court as to his or her preference for one

-7- parent over another. See Buck v. Buck, 31 N.W.2d 829, 831 (Mich.

1948); Price v. Price, 192 S.W. 893, 894 (Ark. 1917).

Accordingly, the preferred method of receiving such evidence in

the majority of jurisdictions is to obtain the child's views in

an in camera interview. See Stickler v. Stickler, 206 N.E.2d

720, 723 (Ill. Ct. App. 1965). See generally Jones, Judicial

Questioning of Children in Custody and Visitation Proceedings, 18

Fam. L.Q. 43 (1984). Other than tangential references to such

practice, this is a matter of first impression for appellate

review in this Commonwealth, especially where, as here, the in camera interview is conducted outside the presence of the parents

and their counsel and over the objection of one of the parents.

See, e.g., Addison v. Addison, 210 Va. 104, 109, 168 S.E.2d 281,

284 (1969)(noting that children were interviewed in camera by

agreement of the parties).

Father's principal challenge to the procedure used here is

that it violated his due process right of confrontation. In

addition to a denial of an opportunity to confront the witness,

he asserts that, as a matter of policy, the exclusion of counsel

from the in camera interview will increase the involvement of children as witnesses in emotional custody disputes. Such is the

case, he asserts, because a parent is more likely to keep a child

out of court if the child is to be subjected to cross-

examination, but would be encouraged to involve the child as a

witness if the parent knows that the interview will be conducted

-8- only in the presence of the judicial officer.

We recognize that questions of child custody, whether in a

divorce proceeding or a civil action by the Commonwealth, involve

a fundamental liberty interest of the parent. Accordingly, the

parent must be accorded the benefits of due process. Rader v.

Montgomery Co. Dep't of Social Servs., 5 Va. App. 523, 528, 365

S.E.2d 234, 237 (1988). Nonetheless, "[i]n 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), and the due process rights of the parents must be

tempered by this guiding principle.

We are not persuaded that reaching the goal of providing an

appropriate balance between protecting the interest of children

and the procedural rights of their parents in resolving custody

disputes is facilitated by a set of bright-line rules applicable

regardless of the circumstances of individual cases. Rather, in

determining how to proceed with the receipt of evidence from

children in custody cases, the judicial officer, whether the 3 chancellor or a commissioner , should consider the facts and 3 We do not here express an opinion on the procedures applicable to cases heard before juvenile courts. The concerns present with commissioner's hearings are not present in the juvenile courts, which are not courts of record, because their decisions, unlike those of a commissioner, are subject to de novo consideration on appeal to the circuit court. Compare Barnes v. City of Newport News, 9 Va. App. 466, 469, 389 S.E.2d 481, 483 (1990)(appeal de novo from district court assures complete record for Court of Appeals) and Peple v. Peple, 5 Va. App. 414, 419, 364 S.E.2d 232, 236 (1988)(appeal to the circuit court from the juvenile court annuls the judgment of the inferior tribunal) with Robinson v. Robinson, 5 Va. App. 222, 225-26, 361 S.E.2d 356, 358

-9- circumstances of the particular case. Among the factors to be

considered are the age and maturity of the children, the matters

to be brought forth in their testimony, the acrimony between the

parents, and the likelihood of improper influence by one or both

of the parents on the children's testimony. Based upon the

consideration of these factors and others as may be appropriate,

the judicial officer should then determine the method of

receiving evidence which serves the best interest of the children

while preserving to the greatest extent possible the procedural

rights of the parents. Although we decline to establish a bright-line requirement

that counsel be present and permitted to participate in all in

camera proceedings in child custody cases, we believe that in

most cases such will best ensure the protection of the child's

interests and the parents' rights. However, depending on the

circumstances of the individual case, the appropriate procedure

may be an in camera interview conducted by the judicial officer

alone.

If the judicial officer elects to exclude the parents and

counsel from the interview, the procedural rights of the parents

cannot be sustained unless a record of the evidence received is

(..continued) (1987)(the Court of Appeals will consider the ability of the commissioner, not shared by the chancellor, to see, hear and evaluate the witnesses at first hand) and Dodge v. Dodge, 2 Va. App. 238, 242, 343 S.E.2d 363, 365 (1986)(although not carrying the weight of a jury verdict, a commissioner's report should be sustained unless its findings are not supported by the evidence).

-10- prepared. See Nowak v. Nowak, 546 So.2d 123, 124 (Fla.

1989)(reversing for failure to provide record of in camera

proceeding). Accordingly, when an in camera interview is

conducted by the judicial officer alone over the objection of a

parent, a transcript of the evidence received must be prepared

and made available upon request of the parents.

Under the facts of the present case, we hold that the

commissioner struck an appropriate balance between the interests

of the children and the procedural rights of the parents. The

commissioner was faced with father's incongruous position that

the children should not be permitted to testify, but if they were

to testify, then it should be in the manner most potentially

harmful to them. In pursuing the more restrictive course, the

commissioner was able to preserve the welfare of the children

from the potential harm of a formal examination process while

obtaining an adequate sense of their needs and preferences as to

custody. When the commissioner announced his decision to proceed with

an in camera interview, excluding the parties and counsel, he invited the parties to seek an amendment to the decree of

reference directing him to do otherwise. The parties chose not

to seek such a directive. Thereafter, by virtue of the record

prepared by the court reporter, father had adequate opportunity

to challenge the evidence taken from the children, either before

the commissioner or when the matter was considered by the

-11- chancellor. Accordingly, the procedural rights of father were

not prejudiced by the commissioner's election to exclude father

and his counsel from the interview with the children. V.

AWARD OF CUSTODY

Father further contends that the chancellor erred in

adopting the commissioner's recommendation granting sole custody

to mother. Father first contends that the previous approval of

the joint custody agreement by the juvenile court was owed

deference and that joint custody was appropriate under the facts

of the case. We disagree. The pre-decree custody arrangement

was not binding on the court. See Wilkerson v. Wilkerson, 214

Va. 395, 397, 200 S.E.2d 581, 583 (1973). Moreover, although the

order of the juvenile court remained in force during the pendency

of the divorce proceeding, it was merely one of the factors to be

considered by the circuit court and was neither binding on the

chancellor nor paramount among the factors to her determination.

See Peple v. Peple, 5 Va. App. 414, 421, 364 S.E.2d 232, 237

(1988)(lower court's order remains in force until modified by circuit court, which has sole jurisdiction in the matter).

Father next contends that if the evidence favored an award

of sole custody, he was the appropriate party to receive custody

of the children. We disagree. For purposes of appellate review, a trial court's determination is considered to have settled all conflicts in the evidence in favor of the prevailing party, and the prevailing party's evidence is entitled to all reasonable inferences fairly deducible therefrom. . . . In examining the evidence and

-12- determining matters regarding a child's welfare, the trial court must consider all evidence before it. . . . Where a trial court makes a determination which is adequately supported by the record, the determination must be affirmed.

Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795

(1990).

The principal factor against awarding custody to the mother

was the determination that she had committed adultery. However,

"the mere fact of adultery, 'without more, is an insufficient

basis upon which to find that a parent is an unfit custodian of

his or her child.'" Ford v. Ford, 14 Va. App. 551, 554, 419

S.E.2d 415, 417 (1992)(quoting Brinkley v. Brinkley, 1 Va. App.

222, 224, 336 S.E.2d 901, 902 (1985)). Rather, the adultery is

simply one of the factors which the chancellor should consider.

The record before us, including the testimony of the children,

adequately supports the chancellor's determination that the

children's best interest was served by an award of sole custody

to mother with liberal visitation to father.

For these reasons, the decisions of the chancellor are

affirmed. Affirmed.

-13-