COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys Argued at Chesapeake, Virginia
ROSANNE D'ERAMO BELL TIGNOR MEMORANDUM OPINION * BY v. Record No. 2995-00-1 JUDGE LARRY G. ELDER JUNE 26, 2001 MATTHEW MORGAN TIGNOR
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Frederick B. Lowe, Judge
Jerrold G. Weinberg (Cecelia Ann Weschler; Weinberg & Stein, on briefs), for appellant.
Henry M. Schwan for appellee.
Rosanne D'Eramo Bell Tignor (mother) appeals from an order
of the Circuit Court of Virginia Beach (trial court) holding
that she and her former husband, Matthew Morgan Tignor (father),
should have joint legal and physical custody of their two minor
children, with each party "having physical custody during
alternating weeks from 6:00 p.m. Sunday to 6:00 p.m. Sunday."
Mother contends the trial court erroneously (1) failed to
consider the required statutory factors; (2) failed to
communicate to the parties the basis for its decision; (3)
concluded that a rotating physical custody scheme was in the
children's best interest; and (4) failed to give any weight to
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. evidence that father routinely involved the children in his
numerous post-separation relationships with women. We hold that
the trial court did, in fact, consider the statutory factors and
communicated the basis for its decision by adopting the
commissioner's report. We also hold that the evidence, viewed
in the light most favorable to father, supported the trial
court's implicit conclusion that father's alleged
post-separation relationships had no detrimental impact on the
children. Finally, under this same standard, we hold the
evidence supported the conclusion that an award of joint
physical custody was in the best interest of the children.
Therefore, we affirm the award of custody.
I.
BACKGROUND
When the parties married in 1990, father was working as a
doctor and mother as a registered nurse. The parties had a son
in 1990 and a daughter in 1991, and by agreement, mother stopped
working to care for the children. The parties separated in
November 1996. In a pendente lite decree entered March 7, 1997,
the trial court ordered that "each party shall have custody of
the children 50% of the time" and that "the parties shall
cooperate to achieve this." In compliance with the pendente
lite decree, the children spent Monday and Tuesday with mother,
Wednesday and Thursday with father, and Friday, Saturday and
Sunday with mother, and they reversed the pattern during the
- 2 - second week, spending Monday and Tuesday with father, Wednesday
and Thursday with mother, and Friday, Saturday and Sunday with
father.
The trial court directed that the parties and their
children undergo psychological testing and evaluation, and the
parties agreed to have those evaluations performed by Robert J.
Seltzer, a licensed clinical psychologist. The trial court
referred the custody matter to a commissioner in chancery, who
heard evidence during multiple hearings from February to May
1999.
The parties presented conflicting expert testimony
regarding the condition of the children at the time of the
hearings and the custody arrangement that would be in the
children's best interest. After hearing the parties' evidence,
the commissioner found that both parents were fit and had the
children's best interests in mind. He concluded, however, that
the parties were unable to communicate effectively with each
other and expressed concern over their ability "to actively
support the children's contact and relationship with the other
parent and . . . to cooperate in matters affecting the
children." As a result, he recommended entry of "a very
specific order with respect to . . . parenting time, which can
be strictly enforced." Based on a finding that "the children
are doing well now, in spite of their parents' ongoing feud," he
recommended that joint legal and physical custody continue, with
- 3 - each of the parties having physical custody during alternating
weeks from 6:00 p.m. Sunday to 6:00 p.m. Sunday, with an
exception for Christmas Eve and Christmas Day.
Mother excepted to the commissioner's custody
recommendation. The trial court heard argument on the
exceptions on June 30, 2000, but a transcript of that hearing is
not a part of the record on appeal. By letter opinion of
October 25, 2000, the trial court overruled mother's exceptions
to the commissioner's custody recommendation. In the final
decree, entered December 8, 2000, the trial court indicated that
it considered "all applicable law [and] all factors required by
law," and it "confirmed and approved" the commissioner's report
with respect to custody of the parties' children, repeating the
terms of custody in the final decree. Mother endorsed the
decree "SEEN AND EXCEPTED TO" without setting forth any specific
basis for objection.
II.
ANALYSIS
Code §§ 20-107.2 and 20-124.3 allow a court to make a
decree concerning the custody of minor children. "[T]he
controlling consideration is always the [children's] welfare
. . . ." Sutherland v. Sutherland, 14 Va. App. 42, 43, 414
S.E.2d 617, 618 (1992). In determining what custodial
arrangement serves the best interests of a child, the court
shall consider the factors enumerated in Code § 20-124.3.
- 4 - "It is well established that the trier of fact ascertains a
witness' credibility, determines the weight to be given to [a
witness'] testimony, and has the discretion to accept or reject
any of the witness' testimony." Street v. Street, 25 Va. App.
380, 387, 488 S.E.2d 665, 668 (1997) (en banc). These
principles apply to the testimony of both lay and expert
witnesses. Id. at 387-89, 488 S.E.2d at 668-69.
On appeal, we view the evidence in the light most favorable
to the prevailing party. Brown v. Burch, 30 Va. App. 670, 681,
519 S.E.2d 403, 408-09 (1999). When a circuit court appoints a
commissioner in chancery to assist in a custody determination
and adopts the commissioner's findings and recommendations,
those "findings and recommendations . . . become those of the
supervising court and are due considerable deference on appeal."
Haase v. Haase, 20 Va. App. 671, 679, 460 S.E.2d 585, 588
(1995). "[A] decree which approves a commissioner's report will
be affirmed unless plainly wrong . . . ." Hill v. Hill, 227 Va.
569, 577, 318 S.E.2d 292, 296 (1984).
A.
COURT'S CONSIDERATION OF STATUTORY FACTORS AND COMMUNICATION OF BASIS FOR DECISION
Mother contends the trial court erroneously failed both to
consider the factors enumerated in Code § 20-124.3 in
determining custody and to communicate to the parties the basis
for its decision as expressly required by that same code
- 5 - section. We hold the trial court's final decree satisfied these
requirements by stating specifically that the trial court
considered "all factors required by law" and adopting the report
of the commissioner which explained the basis for the award of
joint physical custody.
Prior to July 1, 1999, Code § 20-124.3 required a trial
court determining child custody to examine all factors
enumerated therein but did not require that specific findings be
made based upon those factors. As we explained numerous times
in reference to that version of the statute, "the court is not
'required to quantify or elaborate exactly what weight or
consideration it has given to each of the statutory factors.'"
Sargent v. Sargent, 20 Va. App. 694, 702, 460 S.E.2d 596, 599
(1995) (quoting Woolley v. Woolley, 3 Va. App. 337, 345, 349
S.E.2d 422, 426 (1986)). "As long as 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, 518 S.E.2d 336, 338
(1999).
Effective July 1, 1999, the General Assembly amended Code
§ 20-124.3 to provide that "[t]he judge shall communicate to the
parties the basis of the [custody] decision either orally or in
writing." See 1999 Va. Acts ch. 634. Thus, although we need
not address the precise parameters of the communication
required, we note the statute now entitles the parties to some
- 6 - explanation of the basis for the court's decision. Here, the
trial court stated in the final decree that it considered "all
factors required by law" in rendering its decision, and it
adopted the portion of the commissioner's report in which the
commissioner stated the basis for his custody recommendation,
thereby satisfying the requirements of the statute.
For these reasons, we hold that mother did not establish
the trial court erroneously failed to consider the statutory
factors or to communicate to the parties the basis for its
custody ruling.
B.
JOINT PHYSICAL CUSTODY WITH WEEKLY SHIFTING OF RESIDENCE
Mother contends that the Virginia Supreme Court has
expressly rejected the type of shifting custody arrangement
ordered here and, even if it has not, that the trial court's
approval of such a custody arrangement was plainly wrong under
the facts of this case. We reject both contentions and hold the
trial court's conclusion that a joint physical custody
arrangement which required the parties' children to live with
mother and then father during alternating weeks was not plainly
wrong.
Mother argues first that the Virginia Supreme Court voiced
its wholesale rejection of such a custody scheme in Brooks v.
Brooks, 201 Va. 731, 113 S.E.2d 872 (1960), in which a
seven-year-old boy spent four nights each week with one parent
- 7 - and three nights with the other parent. The Court held that
"this frequent shifting of the custody of the child between the
parents for short periods of time will obviously be detrimental
to his welfare" because it "will result in his having no real
home and no permanent environment and associations." Id. at
744, 113 S.E.2d at 874.
We think it important to note, however, that when the
Supreme Court decided Brooks more than forty years ago, the
statutes governing custody did not expressly provide for the
exercise of joint physical custody, 1 see 1954 Va. Acts ch. 234,
1 Although no statute expressly provided for joint physical custody, the Supreme Court sanctioned the award of what it called "divided custody" both before and after its decision in Brooks. In Mullen v. Mullen, 188 Va. 259, 49 S.E.2d 349 (1948), which involved divorced parents residing in different states, the Court observed: While there are certain disadvantages [in dividing or alternating custody], there are also important advantages and benefits. It gives the child the experience of two separate homes. The child is entitled to the love, advice, and training of both her father and her mother. Frequent associations, contact, and friendly relations with both of her parents will protect her future welfare if one of her parents should die. It gives recognition to the rights of parents who have performed obligations as parents . . . provided such right be exercised for the welfare of the child. Id. at 272-73, 49 S.E.2d at 355. For those reasons, it approved an award of custody to the child's mother during the school year and to her father for a portion of the summer. Id. at 274, 49 S.E.2d at 356. The Court applied its reasoning in Mullen to approve similar results in Andrews v. Geyer, 200 Va. 107, 112-13, 104 S.E.2d 747, 751-52 (1958), Semmes v. Semmes, 201 Va. 117,
- 8 - and a common-law inference existed favoring an award of custody
of a child of tender years to its mother, see Visikides v. Derr,
3 Va. App. 69, 72, 348 S.E.2d 40, 42 (1986). Since that time,
the legislature has provided that no such presumption or
inference favors either party. See id. It also has provided
that a court may award joint legal and/or physical custody and
"shall assure minor children of frequent and continuing contact
with both parents, when appropriate, and encourage parents to
share in the responsibilities of rearing their children," Code
§ 20-124.2(B); see Code § 20-124.1; see also 1988 Va. Acts ch.
794 (adding first statutory reference to joint custody, in
§ 20-107.2), thereby emphasizing "the importance [it] attaches
to joint custody arrangements," Burch, 30 Va. App. at 688, 519
S.E.2d at 412 (focusing on joint legal rather than physical
custody). Thus, viewed in the context of the current statutory
scheme, the holding in Brooks does not require the automatic
rejection of the shifting physical custody arrangement at issue
here, and we hold the trial court was not plainly wrong in
concluding that shifting physical custody was in the children's
best interest under the facts of this case.
Despite mother's arguments to the contrary, a careful
reading of the record establishes that father's expert,
psychiatrist Dan Darby, endorsed a custody arrangement whereby
124-25, 109 S.E.2d 545, 550 (1959), and Crounse v. Crounse, 207 Va. 524, 532-33, 151 S.E.2d 412, 418 (1966).
- 9 - the parties would share physical custody, and the evidence,
viewed in the light most favorable to father, supports this
conclusion. The evidence indicated that, despite experiencing
problems when their parents first separated, the children were
thriving under the joint physical custody arrangement in effect
at the time of the commissioner's hearing. Dr. Darby had full
access to the records of Leeann Lane, a licensed clinical social
worker who worked in his office and counseled both children.
Although Lane disagreed with Dr. Darby's opinion regarding
custody, her records confirmed that the children were "coping
well with current stressors" and that "the availability of both
parents is contributing to their well-being." Joan Eckert, the
principal of the children's elementary school, testified to the
marked improvement of the children, particularly the parties'
son, under the current custody scheme.
Dr. Darby opined that providing father with at least joint
physical custody was the only way to assure the continued
unfettered access of both parents to the children, which access
he testified was in their best interest. He opined that if
mother had primary physical custody, her emotional volatility
was likely to interfere with this unfettered access to the
detriment of the children, whereas father had demonstrated an
ability to keep his emotions in check in order to foster the
children's relationship with their mother and to further their
best interests.
- 10 - Scott Sautter, a clinical psychologist, called Dr.
Seltzer's test results into question, based both on Dr.
Seltzer's selection of tests and his interpretation of the
resulting data, and Dr. Sautter agreed with Dr. Darby's
conclusion that a continuation of joint physical custody with an
equal division of time was appropriate under the facts of this
case. Although father routinely employed a nanny, the evidence
established that the nanny generally was present only when
father also was present, and Dr. Sautter testified that father's
use of a nanny "who is caring and well-trained" would not offset
the beneficial balance otherwise provided by a joint physical
custody arrangement.
The custody arrangement in effect at the time of the
commissioner's hearings involved a shift in custody every two or
three days, but Dr. Seltzer testified that the parties' son in
particular had some difficulty adjusting to a mid-week change in
residence. Thus, the evidence supported the commissioner's
recommendation that it would be in the best interests of the
children to continue the shared physical custody arrangement but
to change residences only on the weekend rather than during the
school week.
The finder of fact, confronted with conflicting expert
opinions regarding which custody arrangement was in the best
interest of the children, was entitled to conclude that Dr.
Darby's opinion, supported by Dr. Sautter's, was better reasoned
- 11 - than the opinions of Dr. Seltzer and Leeann Lane. Therefore, we
hold the trial court did not abuse its discretion in adopting
the commissioner's recommendation, based on the testimony of
those experts, to award the parties joint physical custody
during alternating weeks, with the shift in custody to occur
each Sunday evening.
C.
FATHER'S OPPOSITE-SEX RELATIONSHIPS
While "[a]n illicit relationship to which minor children
are exposed cannot be condoned," Brown v. Brown, 218 Va. 196,
199, 237 S.E.2d 89, 91 (1977), there is not a "per se rule
prohibiting awarding custody to a parent involved in an
adulterous relationship," Ford v. Ford, 14 Va. App. 551, 555,
419 S.E.2d 415, 417 (1992). "[I]n determining the best interest
of the child, the court must decide by considering all the
facts, including what effect a nonmarital relationship by a
parent has on the child." Brown, 218 Va. at 199, 237 S.E.2d at
91.
Mother contends the trial court erred in failing to give
any weight to uncontroverted evidence that father regularly
involved the children in his promiscuous post-separation
relationships with numerous paramours. We disagree and hold
that the evidence, viewed in the light most favorable to father,
supports the trial court's implicit conclusion that any impact
- 12 - father's nonmarital relationships had on the children was
insufficient to prevent him from obtaining joint custody.
Mother attempted to offer evidence of father's
extra-marital involvement with over fifteen different women both
before and after the parties' separation in November 1996 and
before the commissioner's hearings in 1999. Although the
evidence supports a finding that seven of these women met the
parties' children, no evidence established that father engaged
in inappropriate behavior with these women in the presence of
the children or that the children expressed any concerns over
the nature of father's relationships with these women.
The evidence did not establish that B.P., C.W., D.M. or
S.D. met the children on more that one or two occasions each.
No evidence indicates that father and any of these women engaged
in any inappropriate behavior in the presence of the children or
that the children knew the adults were anything other than
friends.
M.G. spent time at father's home in the presence of the
children, shared meals and accompanied them on various outings,
but again, no evidence indicated that M.G. and father engaged in
any inappropriate behavior in the presence of the children.
J.H. and S.J. traveled with father and the parties'
children on separate overnight trips, with J.H. accompanying
them on a trip to Mount Rushmore and S.J. and her son
accompanying them on a trip to New York. However, no evidence
- 13 - established what the sleeping arrangements were on the trip to
New York, and J.H. testified that, on the trip to Mount
Rushmore, she shared accommodations with only the parties'
daughter. Thus, again, the record contains no indication that
father and either of these women engaged in any inappropriate
behavior in the presence of the children.
Mother offered testimony from Dr. Seltzer that separated
parents "don't want to do things that show [the] children they
can treat marriage vows lightly [by] ignor[ing] the fact that
[the parents] are still married" and that this principle "puts
[father's trips with women and the children] on shaky ground as
a bad example for the children," even if the adults were not
sleeping together. However, the trial court was not required to
accept Seltzer's testimony about the impact of these trips on
the children. See, e.g., Street, 25 Va. App. at 387-89, 488
S.E.2d at 668-69. Further, even assuming that the trial court
accepted this evidence and that father was dating S.J. and J.H.
at the time of the respective trips, no evidence indicates that
the children were aware of this fact. Finally, even if they had
been aware of this fact, it would not compel a finding that
awarding joint custody of the children to both parents was not
in their best interest.
Thus, the evidence, viewed in the light most favorable to
father, did not establish that the children were being exposed
to father's allegedly illicit relationships in such a way that
- 14 - the exposure rendered the trial court's custody determination
plainly wrong. See, e.g., Ford, 14 Va. App. at 555, 419 S.E.2d
at 417 (in affirming award of joint custody, noting that father
and lover whose home he shared maintained separate bedrooms and
stayed in separate hotel rooms when they and the child traveled
together).
III.
For these reasons, we hold the evidence supported the
conclusion that an award of joint physical custody was in the
best interest of the children. Therefore, we affirm the award
of custody.
Affirmed.
- 15 -