Sarah Almira Reynolds, etc v. Fred Andrew Reynolds

• Court: Court of Appeals of Virginia
• Decided: May 23, 1995
• Docket: 2092944
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Koontz, Bray and Senior Judge Hodges

SARAH ALMIRA REYNOLDS A/K/A SARAH ALLEN-DITTMER

v. Record No. 2092-94-4 MEMORANDUM OPINION * PER CURIAM FRED ANDREW REYNOLDS MAY 23, 1995

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Jane Marum Roush, Judge (Lori J. Lustig, on briefs), for appellant.

(Emilia Castillo, on brief), for appellee.

Sarah Almira Reynolds (mother) appeals the decision of the

circuit court refusing her motion to modify custody of her two

youngest children and deciding other issues. Mother raises three

issues on appeal: (1) whether the trial court abused its

discretion in assessing the credibility of the witnesses; (2)

whether the trial court erred by ordering a six-month review of

the visitation schedule without setting any criteria for the

review; and (3) whether the trial court abused its discretion in

setting limited times for mother's visitation.

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 court. Rule 5A:27. In matters of custody, visitation, and related child care issues, the court's paramount concern is always the best * Pursuant to Code § 17-116.010 this opinion is not designated for publication. interests of the child. . . . In matters of a child's welfare, trial courts are vested with broad discretion in making the decisions necessary to guard and to foster a child's best interests. A trial court's determination of matters within its discretion is reversible on appeal only for an abuse of that discretion, and a trial court's decision will not be set aside unless plainly wrong or without evidence to support it.

Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795

(1990). I. Witnesses' Credibility

"On review the 'decision of the trial judge is peculiarly

entitled to respect for [she] saw the parties, heard the

witnesses testify and was in closer touch with the situation than

the [appellate] Court, which is limited to a review of the

written record.'" Sutherland v. Sutherland, 14 Va. App. 42, 44,

414 S.E.2d 617, 618 (1992) (citation omitted).

Contrary to appellant's contention that the trial court

failed to make specific findings as to the evidence, testimony or

demeanor of the witnesses, the trial court noted "there was a

great deal of conflicting evidence" concerning mother's new

husband. The court then stated: I find that the allegations contained in Mr. Reynolds's [father's] Motion to Modify Visitation . . . are supported by credible evidence. In short, I conclude that [father] was justifiably concerned about whether [mother's new husband] would be present during the children's visitation with [mother].

Moreover, the trial court expressed serious reservations

2 concerning the conclusions drawn by mother's expert as to whether

sexual abuse had occurred: "it seems to me that without even

hearing cross-examination that your evaluation is very incomplete

to be able to draw any kind of conclusion along those lines."

In this matter, "'[t]he credibility of witnesses was crucial

to the determination of the facts, and the findings of the trial

[judge] based upon the judge's evaluation of the testimony of

witnesses heard ore tenus are entitled to great weight.'" Aviles v. Aviles, 14 Va. App. 360, 366, 416 S.E.2d 716, 719 (1992)

(citation omitted). The trial court was entitled to believe

father's witnesses, whose testimony was competent and not

inherently incredible. Therefore, we will not disturb the trial

court's credibility determination, as we find no abuse of the

court's discretion. II. Criteria for Review of Visitation

The trial court found that father's concerns about the well-

being of his children when visiting mother and her new husband

were supported by credible evidence. The paramount focus in all

matters related to child custody remains the best interests of

the children. See, e.g., Farley, 9 Va. App. at 327-28, 387

S.E.2d at 795. In the future, "[t]he court, in the exercise of

its sound discretion, may alter or change custody or the terms of

visitation when subsequent events render such action appropriate

for the [children's] welfare." Eichelberger v. Eichelberger, 2

Va. App. 409, 412, 345 S.E.2d 10, 12 (1986). Therefore, we

3 reject mother's assertion that the trial court "failed to set a

standard of review by which future rulings can be issued or

appealed." III. Limitations on Mother's Visitation

The trial court is entitled to use its discretion in making

determinations concerning visitation and its decision is

reversible only upon a showing that the court abused that

discretion. M.E.D. v. J.P.M., 3 Va. App. 391, 398, 350 S.E.2d

215, 220 (1986). The schedule approved by the trial court

alternates visitation between the parties on weekends, federal

holidays, Thanksgiving, and Christmas Eve; allows both parties to

see the children on Christmas Day; and accommodates Father's Day,

Mother's Day, and birthdays. We find no abuse of discretion in

the trial court's decision to grant mother only two weeks of

visitation during the summer, as mother testified that she wanted

"[a] week, or two weeks probably" for summer visitation. Therefore, mother has failed to demonstrate an abuse of

discretion by the trial court in the setting of the visitation

schedule.

Accordingly, the decision of the circuit court is summarily

affirmed. Affirmed.