Brown v. Brown, 760556

• Decision Date: 01 September 1977
• Docket Number: No. 760556,760556
• Parties: Virginia S. BROWN v. Richard P. BROWN. Record
• Court: Virginia Supreme Court

Page 89

237 S.E.2d 89

218 Va. 196

Virginia S. BROWN v. Richard P. BROWN.

Record No. 760556.

Supreme Court of Virginia.

Sept. 1, 1977.

Betty A. Thompson, Arlington, for appellant.

F. Bruce Bach, Fairfax (Jerome F. Lieblich, McLean, on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

PER CURIAM.

This case involves the custody of the two minor sons, ages seven and four, of Richard P. Brown and Virginia S. Brown. The parties separated in January, 1974, and in March, 1974, Mrs. Brown was awarded temporary custody. In November, 1974, she instituted a suit for divorce on the grounds of constructive desertion and cruelty. The husband filed a cross-bill for divorce on the grounds of desertion and adultery and sought custody of the children. On January 2, 1976, after an ore tenus hearing, the court transferred custody of the children to Mr. Brown, holding that Mrs. Brown was "not a fit and proper person to have the care and custody of said minor children by reason of an adulterous relationship with the corespondent named in defendant's cross-bill of complaint". Appellant appealed. Thereafter Mr. Brown was awarded an absolute divorce and custody of the children, subject to review by this Court of the matter of custody.

The court certified in narrative form a "written statement of oral testimony" introduced at the hearing which resulted in an award of custody of the children to the father. It recites that Mr. Brown presented evidence concerning his wife's "fitness as a mother and concerning her adulterous relationship with the corespondent named in defendant's cross-bill for a divorce"; and that Mrs. Brown offered testimony "to show her fitness as a mother, such testimony being terminated by the court, it being satisfied that (Mrs. Brown) was fit to care for her children so far as her treatment of the children and their physical care is concerned".

No good purpose would be served by a detailed review of the evidence. Mr. Brown testified and introduced the testimony of a professional investigator, of a personal friend and of a Mrs. Reynolds. Their testimony established that at the time appellant had custody of the children she was living with one Dale Leith. These witnesses also stated that Mrs. Brown was not a good housekeeper; that they observed her apartment in a dirty and unkempt condition; and that the children were not properly cared for in many respects and were neglected.

Mr. Brown testified that his older son had developed a hyperactive condition during the parties' separation; that this condition appeared to improve while in the father's custody; and that he noted that the child

"particularly and repeatedly pleaded for the return of the Defendant to the household and asked repeatedly why the other man was sleeping with Mommie instead of the Defendant; That the Defendant noted also that (this child) resorted to long periods of silence; That he was irritable with and slapped his brother and then immediately hugged him; and that he otherwise tended to lose control."

Mr. Brown's witnesses testified that the children appeared to improve in health and behavior while he had custody and that they demonstrated more affection for their father than for their mother. Mrs. Reynolds, a divorcee, testified that her relationship with Mr. Brown was that "of lovers", but such relationship was "never obvious in the presence of the children"; and that she planned to marry appellee when his divorce became final.

Appellant offered her testimony and that of a friend, of a fellow employee and of the wife of her employer. Her three witnesses testified that her children were properly cared for and that her home was not dirty.

The court terminated the testimony of appellant designed to establish the fitness of Mrs. Brown as a mother and the quality of her housekeeping. It observed that it was not prepared to find her an unfit mother because "of her general care for the children"; and that it was only interested in hearing testimony on the relationship between Mrs. Brown and Leith. Mrs. Brown then testified and admitted that "Dale Leith lived with her"; that she and Leith were very fond of each other; and that they planned to marry "when free to do so". She testified that her home was clean; that the children were kept clean, well-fed and well-clothed; and that they were happy, healthy and well-behaved children. She said that her oldest son was hyperactive and was under a doctor's care, receiving all the medication he required.

Following the taking of testimony on September 26, 1975, the court directed Mrs. Brown to have Leith immediately removed from her apartment and continued the matter to October 14, 1975 for argument of counsel. On October 14th, counsel for appellant presented argument in support of her petition for custody. The court then interrogated defendant as to "his plans upon taking over custody for providing a proper home for the children". Whereupon the court ruled as follows:

"That the Complainant did maintain in her home together with the minor children of the parties on a permanent basis over an extended period of time the corespondent named in the Defendant's Cross Bill of Complaint filed herein, and that an...