Virginia Bonds v. Marvin Anderson

• Court: Court of Appeals of Virginia
• Decided: July 16, 1996
• Docket: 2445951
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Bray Argued at Norfolk, Virginia

VIRGINIA BONDS MEMORANDUM OPINION * BY v. Record No. 2445-95-1 JUDGE RICHARD S. BRAY JULY 16, 1996 MARVIN ANDERSON

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK John C. Morrison, Jr., Judge Anthony L. Montagna, Jr. (Montagna & Montagna, P.C., on brief), for appellant.

Stuart R. Gordon for appellee.

Virginia Bonds appeals the trial court's order awarding

Marvin Anderson custody of his natural child, Monte D'Artis.

Bonds, the child's maternal grandmother, complains on appeal that

(1) the evidence rebutted the legal presumption which favored

custody in Anderson, and (2) the trial court erroneously

overruled her motion for an issue out of chancery. Finding no

error, we affirm the trial court.

The parties are fully conversant with the record, and we

recite only those facts necessary to a disposition of this

appeal. In accordance with well established principles, we

review the evidence on appeal in the light most favorable to the

party prevailing below, Anderson in this instance. Bottoms v. Bottoms, 249 Va. 410, 414, 457 S.E.2d 102, 105 (1995).

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Monte D'Artis was born to Felicia Bonds (mother), daughter

of Virginia Bonds, and Marvin Anderson on February 12, 1992.

Monte's parents never married, but were cohabitating together at

the time of his birth. In late 1993, mother and Anderson

separated, and mother retained custody of Monte, supporting him

without Anderson's assistance or attention. Several months

thereafter, Anderson relocated to Florida, residing there with

his fiancee, Lisa Smith. On December 10, 1994, mother was

fatally injured in an automobile accident, and both Anderson and

Bonds petitioned for custody of Monte. Anderson prevailed in the

trial court, hence this appeal by Bonds. The record discloses that Anderson was employed as a night

watchman in Florida, earning approximately $9,000 per year while

pursuing education as a "pharmacist assistant." He projected an

annual salary of approximately $28,000 upon completion of the

training program. Anderson was initially vested with custody of

Monte by temporary order of February 8, 1995, and has since

provided the child with care, supervision and support.

Anderson's fiancee assists him with Monte, including related care

and support. The three reside in a two-bedroom apartment

adequate for Monte's needs, although Anderson and his fiancee

cohabit without the benefit of marriage.

Bonds was the child's primary caretaker from the time of his

mother's death until Anderson assumed custody. She holds a

bachelor's degree in social work and earns approximately $37,000

- 2 - per year as a rehabilitation counselor. It is uncontroverted

that she could provide a suitable home for Monte. Bonds'

evidence included testimony that Anderson once "picked the child

up from the floor" and "slammed him up against . . . the corner

of a door and a wall" and had displayed violent and abusive

conduct in his relationships with others, perhaps encouraging

such behavior in Monte. Bonds contends that Anderson's history

of personal and financial neglect of the child prior to the

mother's death evinced an indifference to Monte's well-being.

Moreover, she condemns Anderson's "meretricious relationship"

with his fiancee and its immoral influence on the child. CUSTODY

"In all child custody cases, including those between a

parent and a non-parent, 'the best interests of the child are

paramount and form the lodestar for the guidance of the court in

determining the dispute.'" Bailes v. Sours, 231 Va. 96, 99, 340

S.E.2d 824, 826 (1986) (citation omitted). Where both a parent

and non-parent seek custody of a child, "'the law presumes that

the child's best interests will be served when in the custody of

its parent.'" Bottoms, 249 Va. at 413, 457 S.E.2d at 104

(citation omitted).

"Although the presumption favoring a parent over a

non-parent is a strong one, it is rebutted when certain factors

are established by clear and convincing evidence." Bailes, 231

Va. at 100, 340 S.E.2d at 827. Such factors include (1) parental

- 3 - unfitness; (2) a previous order of divestiture; (3) voluntary

relinquishment; (4) abandonment; and (5) a finding of "'special

facts and circumstances . . . constituting an extraordinary

reason for taking a child from its parent, or parents.'" Id.

(citations omitted). Circumstances to be "weighed in determining

[parental] unfitness" include (1) "parent[al] misconduct that

affects the child," (2) "neglect of the child," (3) "a

demonstrated unwillingness and inability to promote the emotional

and physical well-being of the child," (4) "nature of the home

environment," and (5) "moral climate in which the child is to be

raised." Bottoms, 249 Va. at 419, 457 S.E.2d at 107.

Here, the record reflects that Anderson had obtained

employment in Florida while pursuing an education. He was

regularly involved in the child's care and provided an adequate

home and attendant support for Monte. While regrettable, there

is no evidence that Anderson's cohabitation with his fiancee has

visited any adverse effect on the child. See Sutherland v. Sutherland, 14 Va. App. 42, 43, 414 S.E.2d 617, 618 (1992).

"[W]e presume the trial court thoroughly weighed all the

evidence and decreed custody as it believed would be to the best

interest of the child." Id. at 44, 414 S.E.2d at 618.

"'Where . . . 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.'"

Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630,

- 4 - 631 (1988) (citation omitted). Here, the record provides

sufficient support for the trial court's finding that Bonds

failed to overcome by clear and convincing evidence the

presumption that custody in Anderson best served Monte's

interests and, therefore, we are constrained to affirm the

disputed order. 1

ISSUE OUT OF CHANCERY

Code § 8.01-336(E) provides that "[i]n any suit in equity,

the court may . . . direct an issue to be tried by a jury" if it

appears that "the case will be rendered doubtful by conflicting

evidence . . . ." However, the decision is entrusted to the

sound discretion of the trial court and its determination will

not be reversed absent an abuse of such discretion. Code § 16.1-296; Hur v. Virginia Dep't of Social Servs., 13 Va. App.

54, 58, 409 S.E.2d 454, 457 (1991).

In overruling Bonds' motion in this instance, the court

determined that the "issues posed . . . [were] not such to keep a

chancellor from properly exercising his or her discretion on

sound legal principles of reason and justice . . . ." Our review

of the record does not reflect that the factual issues "were

necessarily more appropriate for a jury than for the judge" and,

thus, find no abuse of discretion in the court's ruling. Edwards

v. County of Arlington, 5 Va. App. 294, 314, 361 S.E.2d 644, 655

1 The record establishes that Bonds was also a suitable custodian for Monte.

- 5 - (1987).

Accordingly, we affirm the trial court.

Affirmed.

- 6 -