Kristy Marie Armstrong, n/k/a Kristy Marie Roadcap v. Adam Christopher Armstrong

• Court: Court of Appeals of Virginia
• Decided: November 12, 2019
• Docket: 0227193
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, AtLee and Athey Argued at Lexington, Virginia UNPUBLISHED

KRISTY MARIE ARMSTRONG, N/K/A KRISTY MARIE ROADCAP MEMORANDUM OPINION* BY v. Record No. 0227-19-3 JUDGE MARY GRACE O’BRIEN NOVEMBER 12, 2019 ADAM CHRISTOPHER ARMSTRONG

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY Bruce D. Albertson, Judge

Derrick W. Whetzel (Stephanie Warnock; GravesWhetzel Law, PLLC, on briefs), for appellant.

William C. Scott IV (Law Office of William C. Scott, IV, PLC, on brief) for appellee.

W. Andrew Harding, Guardian ad litem for the infant child.1

Kristy Marie Roadcap (“mother”) appeals a decision by the Rockingham County Circuit

Court granting Adam Christopher Armstrong (“father”) a divorce on the grounds of cruelty and

awarding him primary physical custody of the parties’ child. The court also granted the parties joint

legal custody, established a visitation schedule for mother, and denied her request for attorney’s

fees.

Mother assigns error to four of the court’s rulings. First, she challenges the award of

primary physical custody to father as unsupported by the record and findings of the court. Second,

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Pursuant to Rule 5A:19(d), the guardian ad litem filed a notice stating that, although he agreed with mother on several issues, he did not think the court abused its discretion. Therefore, he “agree[d] with [f]ather’s side that the trial court’s decision should be affirmed.” she argues that her “limited schedule” of visitation is also unsupported by the record or findings of

the court. Third, she contends the court erred in granting father a divorce on the grounds of cruelty.

Finally, she argues that the court erroneously denied her request for attorney’s fees. For the

following reasons, we affirm.

BACKGROUND

The parties signed a premarital agreement on May 13, 2015, which included a provision that

“[e]ach party waives and releases the other from any claims for attorneys’ fees and costs associated

with any separation or divorce between the parties.” They married on May 16, 2015, and later had

one child, A.A.,2 born July 11, 2016.

The parties had a tumultuous marriage with several separations and reconciliations. During

their separations after A.A.’s birth, the parties agreed to shared custody. On January 20, 2017, they

separated permanently and executed a property settlement agreement, which included a provision

incorporating the premarital agreement.

Father filed for divorce on October 10, 2017, on the grounds of cruelty by mother and

requested sole legal and physical custody of A.A. On November 27, 2017, father obtained a

protective order against mother in Rockingham County Juvenile and Domestic Relations District

Court. Pursuant to Code § 16.1-279.1, the order prohibited mother from having any contact with

either father or A.A. Mother appealed to circuit court. Following an evidentiary hearing, the court

granted father a protective order until December 11, 2019, but modified the conditions to only

prohibit mother from contacting father, not A.A.3

2 We use initials, instead of the child’s name, to protect her privacy. 3 Father appealed the court’s decision not to include A.A. in the protective order. This Court affirmed. Armstrong v. Roadcap, No. 0141-18-3 (Va. Ct. App. Oct. 30, 2018). -2- Mother and father initiated various criminal and civil proceedings against each other,

including a child abuse claim brought by father against mother, which was dismissed. Mother filed

criminal assault charges against father that she later recanted. Additionally, father obtained a

warrant against mother for violating the protective order. That charge was dismissed as well.

At the protective order hearing, father testified about mother’s physical violence toward him

that caused him to request a protective order. He stated that mother punched him in September

2016, slapped and spit at him in July 2017, and punched him several times on August 22, 2017. He

also testified that mother repeatedly threatened to kill him. Father presented evidence of text

messages from mother which the court described as “vindictive and aggressive.” Father referred to

the incidents of physical violence and verbal threats in his complaint for divorce, and by agreement,

the court incorporated the transcript and evidence from the protective order hearing in the divorce

and custody case.

Following various pendente lite hearings, on August 24, 2018, the court heard the issues of

the grounds for divorce, custody, and visitation. At trial, both parties presented expert evidence

from psychologists. Father’s expert, a clinical and pediatric psychologist, evaluated the

“attachment-caregiving” relationship between father and A.A. He opined that A.A. has a healthy

attachment to father. He did not observe mother’s caregiving abilities or assess A.A.’s attachment

to mother but opined that “generally” he would not recommend “overnights for a child with a

noncustodial parent . . . until the child is somewhere between the age of 3 and 4 years old.”

Mother’s expert, a clinical psychologist, evaluated her “cognitive and emotional functioning

. . . to clarify [her] psychological status and capabilities relative to functioning in a parenting role.”

He concluded that “there do not appear to be any psychological or behavioral contraindications to

her functioning as [the] primary custodial parent for her daughter. To the contrary, she appears

-3- quite ideally suited for functioning in such a role.” He noted that at the time of trial, mother was

receiving individual counseling and psychotherapy, and he recommended she continue.

After trial, the court issued a written opinion granting father a divorce on the grounds of

cruelty and making custody and visitation determinations. In ruling that father proved cruelty, the

court stated that “[t]he grounds of divorce outlined in the [c]omplaint were sufficiently established

and corroborated.” It found that “[t]he last date of cruel behavior” was “[mother’s] physical assault

of [father] in August 2017.” The court also noted that mother “made no objections to the

sufficiency of this evidence” proving cruelty. Consistent with the written opinion, the divorce

decree stated that “[mother] is guilty of cruelty toward [father], the last act occurring in August

2017.”

In determining custody and visitation, the court in its written opinion reviewed the factors

enumerated in Code § 20-124.3. It found that both parents enjoyed a close relationship with A.A.,

and although the parent-child bond was equally strong for father and mother, each parent had

deficits. The court had concerns that mother was “highly erratic” and verbally and physically

abusive toward father. The court found that father “offers a more stable living situation than

[mother]” and “provided certainty and stability to the child during the parties’ separation.”

However, the court described father as “calculating” and found that he “pushes [mother’s] buttons,

then decries her erratic response.” It determined that father “has clearly cut [mother] out of his life”

and is “attempting to strategically take [her] out of [A.A.’s] life as well.” The court concluded,

however, that mother’s erratic and abusive behavior toward father was “so extreme that the stability

[father] provides outweighs his negatives.” Accordingly, the court granted father primary physical

custody.

-4- The court granted mother visitation every other Friday after daycare until Sunday at

5:00 p.m., every remaining Sunday from 1:00 p.m. to 5:00 p.m., and every Wednesday from

4:30 p.m. to 7:00 p.m. The court ordered that the parties alternate holidays with A.A.4

The court awarded the parties joint legal custody. In reaching this decision, the court

recognized that “[n]either parent saw problems in the other’s parenting until the most recent split”

and “[b]oth parents have the capacity to be actively engaged with raising [A.A.] in the future.”

Although the court determined that “[b]oth parents are unable to cooperate in resolving disputes,” it

also noted that their “red-hot hatred has cooled to a slightly lower-grade, weary hatred” and

expressed hope that they may be able to “move on.”

The court awarded joint legal custody despite father’s protective order against mother,

finding that father “uses the protective order as part of an offensive stratagem. It has become a

sword in the custody matter instead of a shield.” The court directed the parties to communicate

concerning the child “SUBJECT TO THE PROTECTIVE ORDER” with “[n]o telephone calls,

except in emergency situations, or by written agreement.” Consistent with the written opinion, the

divorce decree provided that all communication between the parties was subject to the protective

order and also required third-party custodial exchanges of A.A.

In a subsequent hearing on father’s motion to reconsider joint legal custody, among other

issues, and mother’s motion for attorney’s fees, the court denied both motions. The court denied

mother’s motion for attorney’s fees on two alternative bases: first, because the premarital agreement

precluded either side from recovering attorney’s fees; and second, because the totality of the

circumstances did not warrant an award of attorney’s fees.

This appeal followed.

4 By agreement, the final order changed Wednesday’s visitation to Tuesday with expanded hours of 2:00 p.m. until 7:00 p.m. “Friday after daycare” was changed to Friday at 3:00 p.m. -5- DISCUSSION

A. Custody and Visitation

Mother contends that the court erred by awarding father primary physical custody and

granting her a “limited schedule” of visitation. We review a court’s decision regarding child

custody and visitation for an abuse of discretion. Albert v. Albert, 38 Va. App. 284, 294 (2002).

Under this standard, the Court views the evidence in the light most favorable to the prevailing party

and does not “retry the facts or substitute [its] view of the facts for [that] of the trial court.”

Congdon v. Congdon, 40 Va. App. 255, 266 (2003) (quoting Calvin v. Calvin, 31 Va. App. 181,

183 (1999)). If “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 v. Brown, 30 Va. App. 532,

538 (1999).

“Unless statutorily directed otherwise by the General Assembly, in matters involving child

custody, visitation, and related childcare issues, the court’s paramount concern is always the best

interests of the child.” Rubino v. Rubino, 64 Va. App. 256, 261 (2015). A trial court “shall

consider” all the statutory factors in determining the “best interests of a child” for custody and

visitation. Code § 20-124.3. See also Code § 20-124.2(B). Failure to consider all the factors set

out in Code § 20-124.3 is reversible error. Piatt v. Piatt, 27 Va. App. 426, 434 (1998). However,

the court “is not ‘required to quantify or elaborate exactly what weight or consideration it has given

to each of the statutory factors.’” Vissicchio v. Vissicchio, 27 Va. App. 240, 246 (1998) (quoting

Sargent v. Sargent, 20 Va. App. 694, 702 (1995)). See also O’Rourke v. Vuturo, 49 Va. App. 139,

150-51 (2006). “Where the record contains credible evidence in support of the findings made by

[the] court, we may not retry the facts or substitute our view of the facts for [that] of the trial court.”

Bedell v. Price, 70 Va. App. 497, 504 (2019) (quoting Ferguson v. Stafford Cty. Dep’t of Soc.

Servs., 14 Va. App. 333, 336 (1992)).

-6- Mother contends that in making the custody decision, the court abused its discretion by

focusing on her negative attributes, while overlooking father’s faults. She also asserts that the court

put undue emphasis on father’s economic stability. However, the record and the court’s written

opinion belie mother’s assertions.

In the written opinion, the court addressed each of the factors contained in Code § 20-124.3

and made extensive factual findings that are supported by the record. The court did not solely

criticize either mother or father for behaviors that were not in the child’s best interest; it found them

both at fault. Consideration of the parties’ earning capacity and standard of living were not part of

the court’s analysis. Instead, the court focused more broadly on the “stable living situation” and the

“certainty and stability” father afforded A.A. during the parties’ separation. Ultimately, the court

found that mother’s erratic and abusive behavior was “so extreme” that father’s ability to provide

stability outweighed his negative attributes. Because evidence in the record supports these findings,

we are precluded from reweighing the statutory factors or substituting our own judgment for that of

the trial court. Therefore, we find that the court did not abuse its discretion in awarding father

primary physical custody.

Mother also asserts that the court abused its discretion by failing to set a “much more liberal

visitation schedule . . . to offset the negative influence of [father].” When a court determines

“visitation of a non-custodial parent, as in custody issues, ‘the best interests of the child are

paramount.’” Vissicchio, 27 Va. App. at 252 (quoting Wilson v. Wilson, 12 Va. App. 1251, 1254

(1991)). “Determination of visitation rights is a matter of judicial discretion.” Id. As with custody,

“[t]he court must . . . consider all the factors outlined in Code § 20-124.3.” Id. See Sargent, 20

Va. App. at 701.

Although mother contends that the court abused its discretion by not granting her more

extensive visitation, she never proposed an alternative schedule or suggested a plan for additional

-7- visitation. Mother explained that “[t]he rationale behind . . . not providing a [visitation] plan is that

[her] main argument was to obtain primary physical custody of the minor child.” The court

specifically found that a “shared [physical] custody arrangement will not work to [A.A.]’s best

interests” due to the parents’ animosity. Although the court granted father primary physical

custody, it provided a schedule for regular, ongoing, and occasionally overnight visitation with

mother. We agree with the court’s determination that this visitation schedule maintains stability for

A.A. and counteracts father’s proclivity to undermine the mother-child bond. Therefore, the court

did not abuse its discretion in finding that this visitation schedule was in A.A.’s best interests.

B. Grounds for Divorce

Mother argues the court erred in granting father a divorce on the grounds of cruelty pursuant

to Code § 20-91(A)(6). She maintains that she “struck [father] only one time in August 2017” and

this single act of physical abuse was insufficient to prove cruelty. However, mother never presented

this argument at trial, and the court’s written opinion expressly stated that “mother made no

objections to the sufficiency of [the] evidence” proving cruelty. Additionally, mother did not file a

motion to reconsider the grounds of divorce or challenge the sufficiency of the evidence in her

written objection to the divorce decree. Because mother never gave the court an opportunity to rule

on this issue, she has waived it on appeal. See Rule 5A:18 (“No ruling of the trial court . . . will be

considered as a basis for reversal unless an objection was stated with reasonable certainty at the time

of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of

justice.”); see also Floyd v. Commonwealth, 219 Va. 575, 584 (1978) (holding that appellate courts

will not consider arguments that differ from the specific argument presented to the trial court, even

if it relates to the same general issue).5

5 Mother is incorrect that the court based its decision on a “single act” of physical abuse occurring in August 2017. Instead, the court found the grounds of cruelty as “outlined in the [c]omplaint were sufficiently established and corroborated” and “[t]he last date of cruel behavior -8- Mother also contends that the court should have granted the divorce based on a one-year

separation under Code § 20-91(9)(a) because those statutory grounds “were present [and] plainly

before the court” and the cruelty grounds “reward[ed] the clearly abhorrent behavior of [father].”

Mother presented this argument in her written objection to the divorce decree, but we find it

unpersuasive.

“Where dual grounds for divorce exist, the trial judge is not required to grant a divorce

under the one-year separation statute. [The court may exercise its] sound discretion to select the

appropriate grounds upon which [to] grant the divorce.” Zinkhan v. Zinkhan, 2 Va. App. 200, 210

(1986), superseded by statute on other grounds, Code § 20-107.1, as recognized in Wyatt v. Wyatt,

70 Va. App. 716, 720 n.1 (2019). See also Lassen v. Lassen, 8 Va. App. 502, 505 (1989) (“Where

dual or multiple grounds for divorce exist, the trial judge can use . . . sound discretion to select the

grounds upon which [to] grant the divorce.”). Here, the court found father’s allegations of cruelty

were sufficiently established and corroborated, and mother never challenged the sufficiency of this

evidence. Because the court was not required to grant a divorce on the parties’ one-year separation

where dual grounds exist, we find no error in the court’s decision to grant father a divorce on the

grounds of cruelty.

C. Attorney’s Fees

Mother contends that the court erred by denying her post-trial motion for attorney’s fees.

When the court denied her request, it determined that a fee award was both barred by the parties’

written agreements and unwarranted under the totality of the circumstances. We agree.

was [mother’s] physical assault of [father] in August 2017.” (Emphasis added). Likewise, the divorce decree states that “[mother] is guilty of cruelty toward [father], the last act occurring in August 2017.” (Emphasis added). Therefore, not only is mother’s argument procedurally defaulted under Rule 5A:18, it also ignores the court’s determination that there were multiple acts of cruelty warranting a divorce pursuant to Code § 20-91(A)(6). -9- The May 13, 2015 premarital agreement unequivocally addressed the issue of attorneys’

fees. Paragraph 18 provided that “[e]ach party waives and releases the other from any claims for

attorneys’ fees and costs associated with any separation or divorce between the parties.” (Emphasis

added). The premarital agreement was incorporated into the separation agreement, and that

agreement, apart from the custody provisions, was incorporated into the divorce decree without

objection.

Mother argues that most of her attorney’s fees were generated by the custody and visitation

dispute, not the divorce. She argues that the parties did not anticipate having a child at the time they

entered into the premarital agreement, and therefore, custody and visitation issues were not

contemplated in the scope of the waiver.

Marital agreements “are contracts subject to the rules of construction applicable to contracts

generally.” Pysell v. Keck, 263 Va. 457, 460 (2002). Where the terms of the contract are

unambiguous, courts must “adhere to the plain meaning of [the contract’s] stated terms” and

“‘cannot read into [the contract] language which will add to or take away from the meaning of the

words already contained therein.’” Southerland v. Estate of Southerland, 249 Va. 584, 588, 590

(1995) (quoting Wilson v. Holyfield, 227 Va. 184, 187 (1984)). “In reviewing the [marital]

agreement, we must gather the intent of the parties and the meaning of the language . . . from an

examination of the entire instrument, giving full effect to the words the parties actually used.”

Smith v. Smith, 15 Va. App. 371, 374 (1992) (quoting Layne v. Henderson, 232 Va. 332, 337-38

(1986)).

The parties signed the agreement before they were married, and they expressed their

continued agreement twice after A.A. was born: first by incorporating it into their January 2017

separation agreement and second by not objecting to its incorporation into the divorce decree. The

plain language of the premarital agreement reflects the parties’ intent to create a broad waiver of

- 10 - attorneys’ fees in all matters “associated with any separation and divorce,” and this Court cannot

read into it an exception for “associated” claims involving custody or visitation. See Southerland,

249 Va. at 590.

The court also denied mother’s request for attorney’s fees based on the totality of the

circumstances. In any divorce decree, in addition to provisions relating to child support or custody,

the court may provide for the award of counsel fees. Code § 20-79(b). “Whether to award

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.’” Kane v. Szymczak, 41 Va. App. 365, 375 (2003) (quoting

Northcutt v. Northcutt, 39 Va. App. 192, 199-200 (2002)). Here, the court considered mother’s

gainful employment and ability to pay her own attorney’s fees, which the court found were not

unreasonable. Additionally, the court noted that mother did not prevail in many of the temporary

and final rulings in this matter. Based on our review of the record, we find the court considered the

relevant circumstances and did not abuse its discretion in denying mother’s request for attorney’s

CONCLUSION

The court properly considered the factors of Code § 20-124.3 in awarding father primary

physical custody and setting a visitation schedule for mother. Further, mother waived her challenge

to the sufficiency of the evidence supporting the court’s decision to grant father a divorce on the

grounds of cruelty, and the court was not required to grant a divorce based on a one-year separation

where dual grounds existed for the divorce. Finally, the court did not abuse its discretion in denying

mother’s request for attorney’s fees based on the provision of the premarital agreement and the

totality of the circumstances. For these reasons, the judgment of the court is affirmed.

Affirmed.

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