COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Cole Argued at Richmond, Virginia
LEWIS H. CLEMENTSON MEMORANDUM OPINION * v. Record No. 1859-96-2 BY JUDGE MARVIN F. COLE JUNE 24, 1997 NANCY TAYLOR CLEMENTSON, n/k/a NANCY LLOYD
FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge Lawrence D. Diehl for appellant.
Thomas Scott Word, III, for appellee.
In this child custody cause, the appellant, Lewis H.
Clementson (father), challenges the sufficiency of the evidence
to support the trial court's determination that the best
interests of Elizabeth and Douglas Clementson would not be served
by transferring their custody to him, the children's father. We
find no merit to this contention and affirm. Facts
Lewis and Nancy Taylor Clementson, now Nancy Taylor Lloyd,
(mother) were married on June 25, 1977. They have three
children: David, born August 2, 1980; Elizabeth, born December
6, 1982; and Douglas, born May 28, 1987. Father is a practicing
attorney. Mother is a school teacher. The parties separated and
mother filed a bill of complaint on August 27, 1990, requesting a * Pursuant to Code § 17-116.010 this opinion is not designated for publication. divorce on the grounds of cruelty and desertion. She also
requested spousal support, custody of the children, and equitable
distribution of the marital property. Father filed an answer
stating that he wanted the relationship to continue, but, in the
alternative, he requested custody of the children.
On January 2, 1991, the trial court entered a consent order
granting temporary custody of Elizabeth and Douglas to the mother
and temporary custody of David to the father. Visitation rights
were agreed to by the parties. On January 22, 1991, a hearing was held concerning child
custody, child support, spousal support, and other matters. The
trial court found it in the best interests of the parties and the
children that they all submit to medical, psychological and/or
psychiatric examinations. They were ordered to attend all
sessions required and to submit to all testings determined
necessary by Dr. Dennis L. Hawley, a psychologist. Dr. Hawley
was ordered to prepare a report with recommendations regarding
custody and visitation of the children. The trial court further
referred the matter to the Henrico County Department of Social
Services to conduct a home study of the two homes and to prepare
a report with recommendations regarding custody and visitation of
the children. The temporary order entered on January 2, 1991
addressing child custody was continued in force.
On June 5, 1992, the trial court granted a final divorce to
mother on the ground that the parties had lived separate and
2 apart for one year, commencing December 21, 1990. It affirmed,
ratified and incorporated by reference into the decree a property
settlement agreement dated May 28, 1992. The trial court
declined to make a final determination of custody, child support,
and visitation and reserved these matters for future
consideration, and the award previously made was continued in
force.
An ore tenus hearing was held on August 10, 13, and 28,
1992, on the question of permanent custody and support of the
children. The record does not contain a transcript of this
proceeding, but we know that the psychological report and home
study previously ordered by the court were filed as evidence. Dr. Hawley's evaluation, dated March 26, 1991 and filed with
the court, included three individual sessions each with father
and mother, and a full psychological battery of tests on each
parent and each of the three children. In addition, Dr. Doyle
Pruitt, a licensed clinical psychologist, saw each of the
children once individually and all three collectively.
Dr. Hawley's report generally was favorable to the mother as
custodian of all three children. As a result of the emotional
trauma and upheaval in the family, he thought that it was
important to keep all the children together. As between the
parents, he felt that the mother was the least angry and
vindictive of the two and that the children would fare better
with the mother.
3 In a report dated April 18, 1991, the Henrico County
Department of Social Services made its recommendations. A
representative from the agency interviewed both parents, visited
each home, and received additional information from school
teachers and others. The agency reported that all three children
should be kept together and recommended that custody should be
awarded to the mother.
A report of Dr. Joseph J. Crowley, Ph.D., clinical
psychologist, was introduced as an exhibit at the hearing. Dr.
Crowley became involved on May 12, 1992, when mother's attorney
referred her to him to help Elizabeth deal with concerns she was
expressing to mother that she should be dominated by males. In
addition, Dr. Crowley was asked to make recommendations to the
trial court regarding custody of the Clementson children.
Included in his report to the court was his assessment of father,
his assessment of mother, and his assessment of each of the three
children. The details contained in Dr. Crowley's report about the
family are significant. All of the facts and circumstances
cannot be stated in this opinion. However, his report
recommended that custody of all three children be awarded to the
mother. Dr. Crowley reported that, although the father's style
is more charismatic, engaging and spontaneous, the mother is more
thoughtful, reflective and less spontaneous, and she has been
quite successful at maintaining an even hand in regard to the
4 children. Dr. Crowley further reported that the father had
changed very little over the past year and a half. However, the
mother had shown substantial change in her own growth and
development. He stated that she has been successful in pursuing
her vocational aspirations and has maintained herself as an
independent, well functioning adult. He concluded that the
mother was the best suited to be the custodial parent, stating
that she maintained a sensible and balanced home environment. Based upon the evidence presented on August 10, 13, and 28,
1992, on November 16, 1992, the trial court entered a decree
awarding permanent custody of David to father and permanent
custody of Elizabeth and Douglas to mother. Incidentally,
counsel for both mother and father asked for entry of the decree.
On January 27, 1993, the trial court entered a decree fixing
child support and visitation rights. In this decree, the trial
court restated the child custody provisions made in its decree of
November 16, 1992.
Despite the fact that the trial court had finally resolved
all outstanding issues, problems continued to surface and
petitions continued to be filed. On March 24, 1993, mother filed
a petition for suspension of visitation rights, alleging that
father was continuing to manipulate the children for his own
purposes, and that he was continuing to hamper and frustrate the
children's love for her. On June 4, 1993, father filed a motion
for reduction in child support, and, on the same day, he filed a
5 separate motion for change in custody. On June 9, 1993, mother
filed a petition for modification of visitation rights to permit
her to relocate in Alabama. On June 10, 1993, father filed a
petition to enjoin removal of Elizabeth and Douglas from the
state. On June 18, 1993, mother filed a motion to quash
subpoenas served upon her to bring Elizabeth and Douglas to court
for a hearing scheduled on June 28, 1993.
In an order entered on July 8, 1993, the trial court
disposed of all of the issues. The trial court refused to permit
relocation of the children to Alabama and decreed that the order
of January 27, 1993, regarding visitation, custody, and child
support remain in effect. Father's motions for change of custody
and reduction of child support were denied, and he was enjoined
from discussing mother's attempt to move to Alabama with
Elizabeth. A period of relative calm followed entry of the July 8, 1993
order. Mother described this as a "happy" period. During the
1996 spring break, Elizabeth and Douglas spent nine days with
father. Mother testified that when the children returned home
from the visitation, there was a specific, observable change in
the children. Elizabeth came back angry with mother. She gave
no specifics, but just said she was angry and mad with her.
Douglas was also upset and mad at mother. Douglas said that
father had taken him aside to have private talks. In later
testimony, father denied that he had pushed, coaxed or
6 brainwashed Elizabeth to come live with him. He stated that
during "one of these more thorough discussions that we had, I
asked Elizabeth would she like somebody else to talk to about
this; and she said, 'Yes.'"
Father testified that he and Elizabeth together contacted
Dr. George Bright of the Adolescent Health Center and that they
saw him on April 8, 1996. Dr. Bright's billing office records
indicate that an office visit for psychotherapy was also made on
April 27, 1996. On April 29, 1996, Elizabeth disappeared from home after
being dropped off at home by her school carpool. On April 30,
1996, father filed an emergency petition for custody, asking that
custody of Elizabeth and Douglas be awarded to him. Mother
answered by filing a petition for suspension of father's
visitation rights.
On May 10, 1996, a hearing was held on these issues. At the
May 10, 1996 hearing, father called Dr. Bright and Dr. Elouise
Cobb as expert witnesses. Two friends also testified on his
behalf. At the conclusion of father's evidence, mother moved the
trial court to dismiss the petition because a material change in
circumstances had not been proved. The trial court overruled
this motion and proceeded to hear the evidence based upon the
best interests of the children. The trial court entered an order
on July 2, 1996, denying father's request for a change in the
custody of Elizabeth and Douglas. This appeal followed.
7 At the May 10, 1996 hearing, Dr. Bright classified his
practice as adolescent medicine. Dr. Bright testified that
Elizabeth asked him to have a meeting with her to discuss her
request for a hearing before a judge to request a change of
custody from her mother to her father. At the initial stage of
the meeting, it was disclosed to Dr. Bright that mother was the
custodial parent. Dr. Bright requested another member of the
Adolescent Health Center, Dr. Elouise Cobb, a clinical
psychologist, to join him and asked her if he could proceed with
the evaluation since father did not have custody. According to
Dr. Bright, Elizabeth had requested that her mother not be
contacted. Dr. Bright and Dr. Cobb determined that it was legal
and ethical for them to proceed. 1 Dr. Bright referred Elizabeth
to Dr. Cobb who performed a battery of standardized tests and
rendered a written report, which was introduced in evidence.
Dr. Bright was asked to render an opinion on the emotional
status of Elizabeth. He stated she "is a very anxious young lady
that shows indications of depression that's been there for a
period of time." He further testified that she had no other
mental illness, but that she did have dysthymia.
On cross-examination, Dr. Bright admitted that he had not
spoken to mother because his patient had told him not to do so.
His file contained reports from Dr. Doyle Pruitt, Dr. Stolberg
and Dr. Flynn which father had delivered to him, but he had no 1 We express no opinion on these two issues.
8 knowledge of the reports of Dr. Dennis L. Hawley, the home study
report of the Henrico County Department of Social Services or the
extensive report of Dr. Joseph J. Crowley. He did not have any
transcripts of any of the previous custody hearings upon the
question of custody that would have informed him of the
conflicting evidence in this case. He did not contact the school
teachers to find out how Elizabeth or Douglas were doing in
school, although he reports that Elizabeth was doing well. His
report taken from Elizabeth indicates that she participated in
track and cheerleading, school musicals, and her church choir. Dr. Cobb testified that her report was not intended as a
custody evaluation. It was intended "to help us understand
Elizabeth's emotional status and her personal characterization
that would contribute to understanding her adjustment at that
time."
In her report, Dr. Cobb stated that Elizabeth was a petite,
attractive young lady, and that she maintained a reserved
demeanor and a steady smile at all times. Other signs indicated
that she was anxious. When describing her mother, their
relationship and specific events in her life at home, Elizabeth
kept her smile, but her voice took on an angry tone. Her
language patterns and vocabulary level were mature. Her fine
motor skills were excellent. In general, Elizabeth's response
style was thoughtful and evidenced good development of strategy
for problem solving.
9 Dr. Cobb testified there were a number of key findings from
the evaluation data. One was that Elizabeth was an extremely
intelligent child -- a child of superior intellect. She had some
areas of extraordinary cognitive ability. Her verbal expressive
skills were high. She achieved a score that was in the very
superior range on a measure of social knowledge and practical
reasoning ability. However, there was a finding of weakness in
the area of ability to focus her mental activity to concentrate
and to apply her mental skills in a focused manner. This was far
below average. Dr. Cobb gave no recommendation as to custody. She
recommended that the court take another look at the current
living arrangements. She admitted that she did not know all the
factors, but suggested that the data that she had indicated that
the current living situation was contributing to Elizabeth's poor
adjustment.
Mother called as an expert witness Dr. Steven B. Robbins, a
professor and chair of psychology and professor of psychiatry at
Virginia Commonwealth University. He is a licensed clinical
psychologist and has an active private practice. Dr. Robbins had
reviewed the files of both Dr. Bright and Dr. Cobb. He opined
that it undermines the credibility of the evaluation to consider
only one parent. He stated that a psychologist has a
responsibility to bring all informed parties to the table,
clarify the rules, and to clarify consent and confidentiality.
10 He also testified that doctors have a duty to check multiple
sources of information before making a diagnosis.
Dr. Robbins testified that, based upon the information
contained in the files of Dr. Bright and Dr. Cobb, there was no
evidence of risks or endangerment to Elizabeth. He noted that
the intake officer at the Adolescent Health Center checked her
personality as confident. He stated that all three persons from
the Adolescent Health Center dealing with Elizabeth said she was
functioning well in school. Socially, she was involved with
extracurricular activities. Dr. Robbins also testified that
there was no report that she had been in trouble to warrant the
diagnosis of dysthymia. It was his opinion that the medical
records do not support a diagnosis of dysthymia. Mother testified that she married Lawrence Lloyd on June 10,
1994. She denied that Elizabeth had any sleeping disorder or
sleep walking problem. She testified that she had no knowledge
that Elizabeth had gone any nights without sleeping. She denied
that Elizabeth had any eating disorder. She testified that
Elizabeth is a healthy eater, she is informed about nutrition,
and she drinks a lot of milk. Mother stated that, lately,
Elizabeth has been following the track coach's regimen about
eating meals prior to track meets.
Mother testified that Elizabeth attends Tuckahoe Middle
School and that she is an active member of the chorus there. She
participates in musical productions, is a member of the track
11 team, is a cheerleader, is active in church, and she takes part
in other school activities. Mother presented Elizabeth's report
card showing all A's, except one B in math, with several
complimentary comments by her teachers.
Mother testified that Elizabeth and Douglas had a good
relationship with her husband, Lawrence.
Lawrence Lloyd testified that Elizabeth "seemed to be a
happy, normal, well adjusted teenager to [him]. She has lots of
friends and participates in a lot of activities at school and at
church." He also stated that "[t]here have been occasions after
spending lengths of time with her father that she has come home
in rather strange moods." He opined that after a while she came
out of them. Lawrence testified that Elizabeth eats like a "normal
teenager." He stated that she sleeps normally and he observed no
disfunction in her sleeping habits.
Lawrence testified that before Elizabeth went to father's
home for spring break, there was nothing noteworthy about her
attitude or emotions. She seemed to be happy and a normal
person. He testified that when Elizabeth came home after the
spring break, she was not distressed, but that she was not
respectful to her mother and was not responsive to her or him.
Following the spring break and on the night that Elizabeth
ran away, (April 29, 1996), Lawrence had a conversation with
father in front of father's home when he carried David home.
12 Father admitted that he knew that Elizabeth had run away and that
he had been notified of the incident by a "third party." On this
occasion, father stated to Lawrence that it would be easy to
settle the matter. All Lawrence had to do was to convince mother
that she could end the whole thing by agreeing to transfer
custody to father. At that time, Lawrence had no knowledge about
any court hearing.
In addition to the run-away on April 29, 1996, father makes
much of the fact that Elizabeth had run away on two previous
occasions. In June of 1992, Elizabeth went to the home of her
paternal grandparents. A custody hearing was scheduled on June
29, 1992. In March of 1993, she went to a shopping center. A
custody hearing was scheduled on June 28, 1993. The record shows
that the only time Elizabeth ran away from home was in
preparation for a custody hearing.
Analysis
In considering a petition to change child custody, a trial
court applies a two-part test to determine "(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." Visikides v. Derr, 3 Va. App.
69, 70, 348 S.E.2d 40, 41 (1986). Where both parents are deemed
to be fit custodians, the trial court is accorded considerable
latitude in determining the custodial arrangement which will best
serve the child's future interests. We will not reverse a
13 decision entered pursuant to Code § 20-107.1 unless it is
apparent that the trial court abused its discretion by failing or
declining to consider all the enumerated factors. See, e.g.,
Brooker v. Brooker, 218 Va. 12, 13, 235 S.E.2d 309, 310 (1977);
Bristow v. Bristow, 221 Va. 1, 3, 267 S.E.2d 89, 90 (1980). The
decision of a trial court shall be upheld on appeal so long as it
is reasonably supported by substantial, competent, and credible
evidence. See Canavos v. Canavos, 200 Va. 861, 866, 108 S.E.2d
359, 363 (1959). "'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 inferences fairly
deducible therefrom.'" Haase v. Haase, 20 Va. App. 671, 684, 460
S.E.2d 585, 591 (1995) (citation omitted). "The trial court's
decision, when based upon an ore tenus hearing, is entitled to
great weight and will not be disturbed unless plainly wrong or
without evidence to support it." Hughes v. Gentry, 18 Va. App.
318, 321-22, 443 S.E.2d 448, 451 (1994).
In this cause, the decision of the trial judge is peculiarly
entitled to respect because he saw the parties, heard the
evidence, has been in close contact with the family situation for
six years, and has had an opportunity to determine the
credibility of the witnesses and the weight to be accorded their
testimony. This Court is limited to a review of the written
record, much of which was not transcribed, and we are handicapped
14 by the absence of the transcripts from numerous hearings held
before the trial court.
The trial court considered the best interests of both
Elizabeth and Douglas and found that custody should remain with
mother. The trial court's decision has settled all conflicts in
the evidence, of which there are many. The trial court's
decision is entitled to great weight. It is our duty to uphold
its decision if it is supported by substantial, competent, and
credible evidence. We find that it is. Accordingly, we find
that the trial court did not abuse its discretion, and we affirm
the decree.
Affirmed.
Benton, J., concurring.
The record in this custody case is extensive and reflects
that a high degree of contentiousness exists between the parents.
Because the trial judge heard ore tenus conflicting evidence,
including evidence that clearly supports the decree, we cannot
say that the trial judge's "determination is not without
substantial, competent, and credible evidence to support it." Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796
(1990). Therefore, I agree that the decree must be affirmed.