Cooner v. Cooner, Record No. 1570-03-4 (Va. App. 4/20/2004)
| Decision Date | 20 April 2004 |
| Docket Number | Record No. 1570-03-4. |
| Parties | BONNIE J. COONER v. JASON J. COONER. |
| Court | Virginia Court of Appeals |
Appeal from the Circuit Court of Fairfax County, Randy I. Bellows, Judge.
Gwena Kay Tibbits (Law Offices of Gwena Kay Tibbits, on brief), for appellant.
Robert J. Hill for appellee.
Present: Judges Annunziata, Felton and McClanahan.
Bonnie J. Cooner (wife) appeals from an order placing custody of her four children, N.B., T.B., G.C. and B.C., with Jason G. Cooner (husband). Wife contends the trial court erred in: (1) finding a material change in circumstances that warranted a review of the custody of G.C. and B.C.; (2) giving undue weight to the preferences of G.C. and B.C.; and, (3) finding sufficient evidence to award custody of N.B. and T.B to husband, who was a non-parent.1 For the reasons that follow, we affirm the judgment of the trial court.
When reviewing a chancellor's decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences. Wright v. Wright, 38 Va. App. 394, 398, 564 S.E.2d 702, 704 (2002); Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257 (1995).
The parties met in 1993. Wife had sole custody of N.B, born August 28, 1986, and T.B., born September 21, 1988, both children from wife's previous marriage. The parties began living together at about the same time as the birth of their first child, G.C., born August 8, 1994. The parties had a second child, B.C., born May 17, 1996. The parties married in 1998.
During most of the marriage, because of their tumultuous relationship, husband would leave the home for extended periods of time. Because husband was often away from the home, wife was the primary caregiver for the children. However, the children reported that wife was both physically and emotionally abusive to them. When husband was at home, he had a good relationship with the children, including N.B. and T.B., his stepchildren. Although husband never adopted them, they considered him their father.
In 2001, during a period in which husband was not living in the home, wife filed a petition for custody of G.C. and B.C. Husband appeared at the hearing, but did not contest the petition. On the day of hearing, husband moved back into the home with wife and the children and resided there until the parties finally separated in February 2002.
The final separation occurred after an incident in which wife was alleged to have hit one of the children. Wife was arrested in connection with the incident, but the charges were dropped. Husband obtained an order for emergency removal of the children. He petitioned the juvenile and domestic relations district court for custody, and was awarded temporary custody of all four children. Wife was prevented from having any contact with the children. The J&DR court awarded husband permanent custody of the children in August 2002.
Wife appealed to the circuit court, which conducted a hearing over four days in April 2003. The chancellor interviewed each child individually in his chambers. He told each child that he or she was not being asked to make the custody decision and that the custody decision would be made by the court.
The trial court found three material changes of circumstances that warranted review of the children's custody, "each of which by itself would be sufficient to warrant reconsideration by the Court." First, he considered wife's arrest, noting that the charges against her were dropped. However, he found that wife admitted that she "pushed her daughter," a fact that the court deemed to be a material change in circumstances. Second, the court found that disclosures of physical abuse made in various proceedings after June 2001, which were not known to any previous court ruling on the children's custody, constituted a material change in circumstances. Third, the court considered the fact that the children had been living with father for more than a year a material change of circumstances warranting a reconsideration of custody.
In its ruling, the court discussed the legal issue of placing the custody of children with a non-parent. The chancellor also reviewed the statutory factors relevant to the best interests of the children. In reviewing the factors, the court stated that it considered its discussions with the children and that N.B. and T.B wanted "nothing to do with their mother." He also stated that at ages thirteen and fifteen, their preferences were entitled to great weight. As to G.C. and B.C., the court acknowledged that at ages six and eight, "I don't think they're of an age where I would give or should give the same weight that I would give to children of [T.B.] and [N.B]'s age." He further stated that G.C. and B.C. had expressed significant negative feelings toward their mother and that those feelings were entitled to some weight, "but not remotely what I give [N.B.] and [T.B.]."
With regard to N.B. and T.B., the court found that husband had met the burden of clear and convincing evidence to deprive wife, the children's natural parent, of custody. The chancellor found that wife's physical and emotional abuse toward the children overcame the presumption favoring the parent. The court then awarded sole legal custody of N.B., T.B., G.C., and B.C. to husband.
A trial court may "revise and alter such decree concerning the care, custody, and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require." Code § 20-108; Wilson v. Wilson, 18 Va. App. 193, 195, 442 S.E.2d 694, 695-96 (1994). The decision to modify a child custody order is committed to the sound discretion of the trial court. Id.
In considering whether a change in custody is warranted, the trial court determines: (1) whether there has been a material change of circumstances since the most recent custody award; and (2) whether a change in custody would be in the best interests of the child. Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983); see also Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986). The parent seeking to obtain a transfer of custody bears the burden to show a change in circumstances, Hughes v. Gentry, 18 Va. App. 318, 322, 443 S.E.2d 448, 451 (1994), and that the change in custody is appropriate for the welfare of the child. Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986) (citations omitted).
"The trial court's decision, when based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to support it." Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986) (citing Carter v. Carter, 223 Va. 505, 508-09, 291 S.E.2d 218, 220 (1982)). "`A trial court's determination of matters within its discretion is reversible on appeal only for abuse of that discretion . . . and a trial court's decision will not be set aside unless plainly wrong or without evidence to support it.'" Goldhamer v. Cohen, 31 Va. App. 728, 734-35, 525 S.E.2d 599, 602 (2000) (quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).
"A party seeking to modify an existing custody order bears the burden of proving that a change in circumstances has occurred since the last custody determination and that the circumstances warrant a change of custody to promote the children's best interests." Brown v. Brown, 30 Va. App. 532, 537, 518 S.E.2d 336, 338 (1999) (citations omitted). "`Changed circumstances' is a broad concept and incorporates a broad range of positive and negative developments in the lives of the children." Parish v. Spaulding, 26 Va. App. 566, 573, 496 S.E.2d 91, 94 (1998), aff'd, 257 Va. 357, 513 S.E.2d 391 (1999) (citation omitted). "`Whether a change of circumstances exists is a factual finding that will not be disturbed on appeal if the finding is supported by credible evidence.'" Ohlen v. Shively, 16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993) (citation omitted); see also Visikides, 3 Va. App. at 70, 348 S.E.2d at 41.
The court found three material changes of circumstances that warranted review of the children's custody, "each of which by itself would be sufficient": wife's admission that she hit one of the children, the disclosures of physical abuse made in various proceedings since the custody issue was heard by any other court, and that the children had been living with the father for more than a year. These factual findings were supported by credible evidence and will not be disturbed on appeal. We find no error in the court's determination that a material change in circumstances occurred since the last custody order.
Wife argues that the trial court should not have given any weight to the custody preferences of G.C. and B.C., who were eight and six, respectively, at the time of hearing. She contends that the trial court was required to first determine whether each child is of "reasonable intelligence, understanding, age and experience to express such a preference."
Code § 20-124.3(8) provides that the court shall take into consideration: "The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference." Although a child's preference "should be considered and given appropriate weight," it does not control the custody determination and is just one factor to be considered. Bailes v. Sours, 231 Va. 96, 99, 340 S.E.2d 824, 826 (1986) (citations omitted).
With regard to the preferences of G.C. and B.C., the court stated, "I don't think they are of an age where I would give or should give the same weight that I would...
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