William Sessoms v. Barbara Elizabeth Myer

• Court: Court of Appeals of Virginia
• Decided: May 25, 1999
• Docket: 1227982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner Argued at Salem, Virginia

WILLIAM SESSOMS MEMORANDUM OPINION * BY v. Record No. 1227-98-2 JUDGE RUDOLPH BUMGARDNER, III MAY 25, 1999 BARBARA ELIZABETH MYER

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE Jay T. Swett, Judge

Annie Lee Jacobs (Tracey C. Hopper; Parker, McElwain & Jacobs, P.C., on briefs), for appellant.

Patricia M. Brady for appellee.

William Sessoms appeals a final decree of divorce awarding

Barbara Elizabeth Myer physical custody of their daughter, child

and spousal support, and attorney’s fees. He argues that the

trial court erred (1) in authorizing the wife to petition for a

custody review without needing to prove a change in

circumstances; (2) by ordering visitation not in accordance with

the recommendation of his experts; (3) in failing to impute

income to the wife; (4) in ruling that wife had a need for

support and attorney's fees; and (5) in calculating child and

spousal support. She appeals the decisions (6) directing her to

reside in the Charlottesville-Albemarle area for at least three

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. years and (7) admitting certain expert testimony not revealed

during discovery. We conclude that the trial court erred in

authorizing the wife to petition for review without having to

show a change of circumstances, in limiting the custody order to

three years, and in calculating the support. We conclude the

trial court did not err on the other issues.

The wife left her job in California where she earned

$31,200 as a television production assistant and moved to

Charlottesville where the parties married in 1994. The wife had

various lower paying jobs ranging from temporary secretarial

work to creative writing, but she never worked full-time after

their daughter was born in June 1996. The couple had serious

marital problems before the birth of their daughter, but in

January 1997 without any notice to her husband, the wife filed

for divorce, took their child, and left for Colorado. She had

never lived there, but most of her family was living there. She

resided with her father and was able to get a job from her

sister that allowed her to keep her daughter with her while she

worked.

Both parties wanted custody. The husband stressed that it

was very important that both parents have frequent and regular

contact with their child and that it was in her best interest to

see both parents on a reasonably frequent basis. He wanted to

visit her during the week and to have overnight visitation

- 2 - during the week and every other weekend. The wife wanted to

live in Colorado, work, and raise her daughter there.

The wife returned to Virginia for a pendente lite hearing

in February 1997. The trial court awarded the parties joint

legal custody, gave the wife physical custody, but ordered her

to remain in the Charlottesville area. The husband was awarded

visitation for several hours, five days a week and every other

weekend. In August 1997, the court increased husband’s

visitation by several hours each week.

The trial was held January 22, 1998 on all matters of

custody, visitation, child support, spousal support, and

attorney’s fees. The parties settled the equitable distribution

issues. After hearing extensive evidence including five

experts, the trial court awarded physical custody to the wife

provided she remained in the Charlottesville area. It limited

the restriction to three years and ruled that the wife could

petition for a change in the custody order without showing a

material change in circumstances. 1

1 The trial court stated:

that primary physical custody shall be with the mother, providing she resides in the Charlottesville/Albemarle area; this restriction is to be in place for a period of three years. After that time, if the parties cannot reach an agreement as to where Ms. Myer resides, Ms. Myer shall be able to return to this Court to seek a review of this Court’s ruling regarding change of residence without needing to prove

- 3 - The husband contends the trial court erred when it allowed

the wife to seek review in three years without having to

establish a material change in circumstances. The wife contends

the trial court erred when it required her to reside in the

Charlottesville area. We affirm the decision of the trial court

awarding physical custody to the mother and restricting her to

the area. However, we conclude that the trial court erred in

limiting the custody order to three years and in authorizing the

wife to petition for modification without showing a change in

circumstances.

Courts are authorized to prohibit custodial parents from

removing a child from the state, see Carpenter v. Carpenter, 220

Va. 299, 302, 257 S.E.2d 845, 848 (1979), or to permit such

removal. See Gray v. Gray, 228 Va. 696, 698-99, 324 S.E.2d 677,

678 (1985). When the trial court bases its decree on the best

interest of the child, it will not be reversed unless plainly

wrong or without evidence to support it. See Scinaldi v.

Scinaldi, 2 Va. App. 571, 573, 347 S.E.2d 149, 150 (1986); Gray,

228 Va. at 698-99, 324 S.E.2d at 678; Carpenter, 220 Va. at 302,

257 S.E.2d at 848.

a material change in circumstances, but rather, the sole issue shall be what is in the best interests of the child.

- 4 - The trial court found that both parents cared deeply for

the child and that neither parent wanted to keep the child from

the other parent. The trial court found husband’s evidence

regarding the importance of a strong relationship between father

and child during the early years credible and gave it great

weight. Consequently, the court ruled that it was in the

child’s best interest during the early years “to be able to be

with and see her father on a reasonably frequent basis.“

The evidence supported the conclusion of the trial court

that the child’s relationship with the father would not be

maintained at the same level if it permitted the mother to take

her to Colorado. The added difficulty of maintaining a

relationship between the child and the parent “should not be the

sole basis for restricting a custodial parent’s residence except

where the benefits of the relationship cannot be substantially

maintained if the child is moved away.” Scinaldi, 2 Va. App. at

575, 347 S.E.2d at 151. Here, the trial court did not abuse its

discretion because it was in the child’s best interest to order

the mother and child to stay in Virginia.

The trial court stressed that it based its decision on

custody and to restrict the mother to the area “primarily due to

the young age of the child.” While it may be inevitable that

circumstances will change in three years as the child reaches

school age, the court cannot make that determination

prospectively. It must first find a material change of

- 5 - circumstances before it modifies a custody decree. See Bostick

v. Bostick-Bennett, 23 Va. App. 527, 536, 478 S.E.2d 319, 323

(1996) (increased certainty regarding custodial parent's

impending move is not a change in circumstances); Turner v.

Turner, 3 Va. App. 31, 36, 348 S.E.2d 21, 23-24 (1986) (the

"paramount concern [is] the best interests of the child at a

given point in time, recognizing that it may become appropriate

to make a change in the future"). A custody decision is res

judicata of the issue unless there is a material change of

circumstances. See Hiner v. Hadeed, 15 Va. App. 575, 580, 425

S.E.2d 811, 814 (1993). We conclude that the trial court erred

by limiting the duration of the custody order, and we reverse

the decision to prospectively limit its restriction on the

wife’s residence to three years.

Similarly, we conclude that the trial court erred when it

relieved the wife of the burden of proving a change in

circumstances when she petitioned for review of the custody

decision. When modifying a decree that denied permission to

remove a child from the state, the trial court applies a

two-part test: a material change in circumstances since the

last custody award, and a determination that relocation is in

the child’s best interest. See Keel v. Keel, 225 Va. 606, 611,

303 S.E.2d 917, 921 (1983); Parish v. Spaulding, 26 Va. App.

566, 573, 496 S.E.2d 91, 94 (1998), aff'd, 257 Va. 357, ___

S.E.2d ___ (1999); Bostick, 23 Va. App. at 535, 478 S.E.2d at

- 6 - 523. Here, the trial court lacked authority to alter the

two-part Keel test. A petition for modification of a custody

decree must include a showing of a change in circumstances.

The husband next assigns as error the refusal of the trial

court to follow the experts’ recommendation regarding

visitation. "[T]he best interests of the child are paramount"

in determining visitation of a non-custodial parent. Wilson v.

Wilson, 12 Va. App. 1251, 1254, 408 S.E.2d 576, 578 (1991)

(citation omitted). Determination of visitation rights is a

matter of judicial discretion. See Eichelberger v.

Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986).

When the trial court considers all the factors outlined in Code

§ 20-124.3, "it 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)). "It is well

established that the trier of fact ascertains [an expert]

witness' credibility, determines the weight to be given their

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) (citation omitted).

While it may be ideal for a child to have daily contact

with both parents, this is not always practical when the parties

are divorced. The trial court considered all relevant factors,

- 7 - carefully weighed the extensive evidence from four experts, and

attempted to establish a stable routine for the child. It gave

the father liberal visitation rights. Though it did not grant

visitation every day, the father received weekend overnight

visitation, frequent visitation during the week, and some

overnight visitation during the week. The trial court acted

within its discretion when it declined to follow the precise

recommendations of the husband’s experts. It was not required

to adopt totally the views of expert witnesses, and the evidence

supported the visitation schedule established by the trial

court.

The husband argues that the trial court erred in refusing

to impute income to the wife when determining both spousal and

child support. Code §§ 20-107.1(1) and 20-108.1 set forth the

factors that the trial court is to consider in making spousal

and child support determinations. Support decisions rest within

the sound discretion of the trial court and will not be reversed

unless plainly wrong or unsupported by the evidence. See

Bennett v. Dep't of Social Servs., Div. of Child Support

Enforcement, 22 Va. App. 684, 691, 472 S.E.2d 668, 672 (1996);

Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876

(1994).

We view the evidence in the light most favorable to the

wife, the prevailing party below. See Cook v. Cook, 18 Va. App.

726, 731, 446 S.E.2d 894, 896 (1994). The evidence established

- 8 - that the mother’s last full-time job was in 1994 when she earned

an annual income of $31,200 in California as a television

production assistant. The husband’s vocational expert testified

that the wife could earn $30,000 to $40,000 based on her resume

and the opportunities available in the Charlottesville area.

This expert, however, identified no jobs actually available to

the wife. The wife testified that she unsuccessfully sought

employment upon moving to the area but had only worked

intermittently since then. She testified there were no jobs

available in her field of television production. Except for

minimum-wage jobs, the evidence of job availability and pay was

conflicting. The wife did not feel it practical to earn minimum

wage and pay for day care when she could personally care for the

young child herself. The husband testified that he did not

“particularly like the option of day care . . . .”

The trial court did not abuse its discretion in refusing to

impute income to the wife. See Saleem v. Saleem, 26 Va. App.

384, 494 S.E.2d 883 (1998) (no error in refusing to impute where

custodial parent was asked to resign her prior employment);

Bennett, 22 Va. App. at 691-92, 472 S.E.2d at 672 (no error

where age of child and circumstances did not permit custodial

parent to be gainfully employed); Theismann v. Theismann, 22 Va.

App. 557, 573, 471 S.E.2d 809, 816-17 (1996). Not being

permitted to return to Colorado limited the employment and

earning potential of the wife while the child was very young.

- 9 - Both parties emphasized the importance to them of both the

father and mother having close contact during the early

development of their daughter. Given the age of the child, the

wife’s role as a full-time mother before the separation, and the

limitation placed on her so the child could enjoy a substantial

relationship with both parents, the trial court did not abuse

its discretion in refusing to impute income to the wife. See

Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 23 (1993)

(need evidence of recent past earnings). She was entitled to

continue the lifestyle to which she was accustomed during the

marriage. See Srinivasan v. Srinivasan, 10 Va. App. 728, 734,

396 S.E.2d 675, 679 (1990).

The husband next contends that the trial court erred in

awarding the wife spousal support and attorney’s fees and in

ordering him to pay more than his ability to pay. The trial

court ordered the husband to pay $850 in spousal support and

$680 in child support. He contends that the trial court erred

in finding he had the ability to pay. We disagree.

Evidence was presented on all statutory factors, including

the parties’ agreed upon equitable distribution payments and the

duration of the marriage. In addition to his salary of $63,000,

the husband had equity in his home, a retirement plan, and

$14,000 in an IRA account. The wife had spent her IRA and was

$4,500 in debt. The parties were not financially equal. The

wife made a financial and career sacrifice in moving to

- 10 - Charlottesville. It was a proper exercise of discretion to

award spousal support and attorney’s fees. The award of spousal

support and attorney’s fees is within the sound discretion of

the trial court and will not be reversed on appeal unless

injustice results. See Brooks v. Brooks, 27 Va. App. 314, 498

S.E.2d 461 (1998); Lightburn v. Lightburn, 22 Va. App. 612, 620,

472 S.E.2d 281, 285 (1996) (wife's sacrifice in moving is

appropriate consideration for spousal support determination).

The wife concedes that the trial court erred in failing to

account for the spousal support award before calculating child

support. See Code § 20-108.2(G)(1); Frazer v. Frazer, 23 Va.

App. 358, 477 S.E.2d 290 (1996). We remand this matter for

reconsideration of the child support award because any deviation

in the combined award is best determined by the trial court.

Finally, the wife contends that the trial court erred in

permitting the husband’s experts to testify because the

substance of their testimony was not disclosed in a timely

fashion, and the bases for their opinions were not fully

disclosed. We disagree.

The husband designated his experts on November 21, 1997,

but he did not provide the details of their testimony or the

bases of their opinions. At the pretrial hearing December 11,

1997, the trial court extended the deadline for completing

discovery to December 31, 1997. On January 5, 1998, the husband

provided the wife a designation of the testimony of two of the

- 11 - four experts. The trial court refused to exclude the experts

from testifying because it found the husband had substantially

complied with the discovery order. The trial court did exclude

their testimony concerning facts or opinions not stated in the

designation.

The wife presented no evidence that she made any effort to

depose or investigate the substance of their testimony during

the period of discovery. The trial court had the discretion to

modify the deadline for completing discovery. The fact that the

court sua sponte extended the date for compliance with

discovery, without more, is not an abuse of discretion. Absent

a showing of prejudice, there is no abuse of discretion with

respect to discovery issues. See Rakes v. Fulcher, 210 Va. 542,

546, 172 S.E.2d 751, 755 (1970).

The wife requests that this Court award her attorney’s fees

incurred during the appeal. Both parties appealed from

provisions of the final decree, and both prevailed on certain

issues. The appeals were not frivolous, and we find no other

reasons to justify ordering the husband to pay the wife’s

attorney’s fees incurred for this appeal. See O'Loughlin v.

O'Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).

The motion is denied.

For the foregoing reasons, we reverse the trial court's

order to the extent that it limited the duration of its decree

and relieved the wife of proving a change in circumstance when

- 12 - petitioning for a review. We remand for recalculation of the

support award, and we affirm all other rulings.

Affirmed in part, reversed and remanded in part, reversed and final judgment in part.

- 13 -