Joan Laurie Baxter v. Michael J. Baxter

• Court: Court of Appeals of Virginia
• Decided: September 19, 2000
• Docket: 0258004
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Panel: Judges Elder, Bumgardner and Humphreys

JOAN LAURIE BAXTER MEMORANDUM OPINION * v. Record No. 0258-00-4 PER CURIAM SEPTEMBER 19, 2000 MICHAEL J. BAXTER

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

(Joan Laurie Baxter, pro se, on briefs).

(James Ray Cottrell; Christopher W. Schinstock; Gannon, Cottrell & Ward, P.C., on brief), for appellee.

Joan Laurie Baxter (mother) and Michael J. Baxter (father)

were divorced in 1993. Two sons, Adam and Ryan, were born of the

marriage. The trial court awarded custody of the boys to father

in 1995. Mother appeals the decision of the Fairfax County

Circuit Court, dated January 7, 2000, related to a modification in

child custody and attorney's fees. She contends the trial judge

erred by: (1) failing to recuse himself from hearing the Petition

for Change in Custody; (2) failing to change physical custody of

Ryan to mother; (3) failing to consider mother's motion for

reconsideration; and (4) awarding father attorney's fees. Both

parties request attorney's fees and costs incurred in this appeal.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Upon reviewing the record and briefs of the parties, we

conclude that this appeal is without merit. Accordingly, we

summarily affirm the decision of the trial judge. See Rule 5A:27.

Under familiar principles 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 Soc. Servs., 3 Va. App. 15,

20, 348 S.E.2d 13, 16 (1986).

Motion to Recuse

Mother contends the trial judge abused his discretion when he

refused to assign another judge to hear the change in custody case

presented at the December 15, 1999 hearing. Mother alleges the

trial judge showed bias toward the father in various earlier

rulings he made as far back as the original custody hearing held

in 1995. She also contends the trial judge's objectivity had been

tainted by her "litigiousness" over the years and by a comment she

allegedly made in 1995 concerning hiring a hit man to "take out"

father.

"It is within the trial judge's discretion to determine

whether he harbors bias or prejudice which will impair his ability

to give the defendant a fair trial." Terrell v. Commonwealth, 12

Va. App. 285, 293, 403 S.E.2d 387, 391 (1991) (citation omitted).

- 2 - Having reviewed the record, we cannot say that the trial judge

abused his discretion in declining to recuse himself.

The mere fact that a trial judge makes rulings adverse to a

party, standing alone, is insufficient to establish bias requiring

recusal. See Stamper v. Commonwealth, 228 Va. 707, 714, 324

S.E.2d 682, 686 (1985). At the November 1999 hearing, the trial

judge indicated he could hear the custody case "fairly and without

prejudice" to mother, stating, "[T]he issue before the court is

not [mother] or [father]. It's the children and what's in the

best interests of the children." Therefore, mother has

demonstrated no basis upon which to reverse the trial judge's

decision, exercised in his discretion, not to recuse himself.

Motion to Change Physical Custody

As the party seeking to modify the existing custody order,

mother bore the burden to prove "'(1) whether there has been a

[material] change in circumstances since the most recent custody

award; and (2) whether a change in custody would be in the best

interests of the child.'" Wilson v. Wilson, 18 Va. App. 193, 195,

442 S.E.2d 694, 696 (1994) (citation omitted); see Keel v. Keel,

225 Va. 606, 611, 303 S.E.2d 917, 921 (1983). In matters

concerning custody and visitation, the welfare and best interests

of the children are the "primary, paramount, and controlling

consideration[s]." Mullen v. Mullen, 188 Va. 259, 269, 49 S.E.2d

349, 354 (1948).

- 3 - Mother contends that father moving three miles away from her

home constituted a material change in circumstance. She also

argues that her relationship and engagement to Pat Little, her

move to a residence she jointly owns with Little, the boys' grade

point average decline, father's refusal to allow the boys

discretionary visitation with mother, conflict in father's home,

the inability of the boys to "get along," and Ryan's expressed

desire to reside with mother constituted changes in circumstances

since the trial judge awarded father custody in 1995.

The trial judge found that mother failed to prove there was a

material change in circumstances justifying a modification in

custody. The trial judge specifically found that mother's

relationship with Little and the fact that she was living with

Little were not material changes in circumstances. He based this

opinion on the fact that the house in which mother resided in 1995

when the trial judge made the first custody determination was not

"inadequate or anything of that nature." The trial judge further

indicated that mother had had "those types of relationships" with

men since 1995, and the "uncertainty" of her relationships was a

factor he considered.

Although Ryan, who was fourteen years old at the time of the

hearing, expressed a preference to reside with his mother, the

trial judge found that Ryan did not express a "reasonable" basis

for the change in custody. See Code § 20-124.3(8). Ryan

testified that the rules "were about the same in both houses," but

- 4 - he did not like the punishments he received for breaking the rules

at his father's residence. When children have reached the age of

discretion, their wishes should be given weight but are not

controlling. See Hall v. Hall, 210 Va. 668, 672, 173 S.E.2d 865,

868 (1970).

The trial judge met with both children in camera. At that

time, Adam said he would not like to be separated from Ryan. Dr.

Guy Van Syckle, a child psychologist who had worked with the

family since August 1995, testified it would be "terribly damaging

to both boys if they were separated." He stated the boys "look

out" for each other, support and defend each other. Dr. Van

Syckle testified that the boys describe themselves as "tight." He

also stated the level of physical fighting between the boys had

diminished over time. Dr. Van Syckle testified he believed Ryan

feels pressure to please his mother and that Ryan feels "very

comfortable" living with his father. Dr. Van Syckle stated the

boys' condition has "dramatically improved" since father gained

custody of them. He also opined that father and his wife have

"done an excellent job of raising the kids."

Although mother contends the boys fight while living together

at father's residence, the trial judge stated he did not "get that

impression" from the boys' evidence "other than the normal sibling

type of things that go on." Dr. Van Syckle's testimony also

supports this finding.

- 5 - Mother contends the trial judge should not have relied on Dr.

Van Syckle's opinion in making his custody decision. It is true

that the trial judge need not adopt the recommendation of the

expert. See Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d

665, 668 (1997) (en banc) ("the fact finder is not required to

accept the testimony of an expert witness merely because he or she

has qualified as an expert"). Here, the trial judge stated he

considered the credibility of all of the witnesses, and he

considered all of the factors listed in Code § 20-124.3 concerning

the best interests of the boys. He particularly cited Code

§ 20-124.3(4) regarding Ryan's relationship with his brother,

stating that he did not see how separating the boys "could in any

way foster the best interests of either boy."

The trial judge is vested with broad discretion to make the

decisions necessary to safeguard and promote the boys' best

interests, and his decision will not be set aside 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). Based upon the

testimony presented, the trial judge's conversations in camera

with the children, and his extensive knowledge of the parties over

the multiple hearings in the past, he found nothing warranted a

change in the current custody arrangement. Our review of the

record supports the trial judge's conclusion. Therefore, we

affirm the trial judge's denial of mother's motion to modify

custody.

- 6 - Motion for Reconsideration

Mother contends the trial judge abused his discretion in

denying her motion to reconsider which she filed nineteen days

after the entry of the January 7, 2000 order. "In the absence of

a material change in circumstance, reconsideration . . . would be

barred by res judicata." Hiner v. Hadeed, 15 Va. App. 575, 580,

425 S.E.2d 811, 814 (1993). The granting or denial of a motion to

reconsider is within the sound discretion of the trial judge. See

Morris v. Morris, 3 Va. App. 303, 307, 349 S.E.2d 661, 663 (1986).

Mother's motion for reconsideration involved either evidence

and arguments she had previously presented at the December 15,

1999 hearing or that she had a fair opportunity to present at that

hearing. Thus, her proffered evidence failed to demonstrate a

material change in circumstances subsequent to the entry of the

trial judge's January 7, 2000 custody order. Accordingly, the

trial judge did not abuse his discretion in denying mother's

motion to reconsider.

Mother also contends the trial judge denied her the

opportunity to present rebuttal evidence at the December 15, 1999

hearing. However, father called only one witness at the hearing,

Dr. Van Syckle. Mother's counsel thoroughly cross-examined Dr.

Van Syckle, and mother testified concerning her views that Dr. Van

Syckle was an incredible witness. Other evidence listed by mother

as potential rebuttal evidence was either presented by mother at

the December 15, 1999 hearing or was evidence mother had the

- 7 - opportunity to present in her case at the hearing. Therefore, her

argument is without merit.

Attorney's Fees in the Trial Court

At the December 1999 hearing, the trial judge awarded father

$3,000 in attorney's fees. Mother contends the award "is flawed"

because the trial judge abused his discretion in denying her

motion for custody of Ryan. She also asserts the trial judge

considered attorney's fees unrelated to the custody action.

An award of attorney's fees is a matter submitted to the

sound discretion of the trial court and is reviewable on appeal

only for an abuse of discretion. See Graves v. Graves, 4 Va. App.

326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award

of counsel fees is reasonableness under all the circumstances.

See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162

(1985). Mother initiated the change in custody proceedings. The

trial judge found that mother presented "no testimony" about the

effect the change in custody would have on Adam until the trial

judge inquired about that issue. Furthermore, Adam stated he

would not like being separated from Ryan, and Ryan stated only

that he thought he would prefer living with his mother based on

the level of punishment he incurs at his father's residence.

Based on the issues involved and the respective abilities of

the parties to pay, we cannot say that the award of $3,000 in

attorney's fees to father was unreasonable or that the trial judge

abused his discretion in making the award.

- 8 - Requests for Appellate Attorney's Fees

Both parties request an award of appellate attorney's fees

for this appeal. Mother's appeal was without merit. Therefore,

we find that father is entitled to recover reasonable attorney's

fees and costs incurred by him in defending this appeal. We

remand this matter to the trial judge for a determination of those

costs and fees. See O'Loughlin v. O'Loughlin, 23 Va. App. 690,

479 S.E.2d 98 (1996).

Accordingly, the judgment of the trial judge is summarily

affirmed, and the matter is remanded to the trial judge for a

determination of father's costs and fees incurred on appeal.

Affirmed and remanded.

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