Gray v. Gray, 831963

• Decision Date: 18 January 1985
• Docket Number: No. 831963,831963
• Citation: 228 Va. 696,324 S.E.2d 677
• Parties: Barbara Susan GRAY v. Jeffrey L. GRAY. Record
• Court: Virginia Supreme Court

Page 677

324 S.E.2d 677

228 Va. 696

Barbara Susan GRAY v. Jeffrey L. GRAY.

Record No. 831963.

Supreme Court of Virginia.

Jan. 18, 1985.

George F. Tidey, Richmond (Tidey & Boice, Richmond, on briefs), for appellant.

Donna J. Katos, Richmond, (Bremner, Baber & Janus, Richmond, on brief), for appellee.

Present: All the Justices.

STEPHENSON, Justice.

This is an appeal from a decree denying the request of Barbara Susan Gray (mother or wife) to remove her two minor children from the Commonwealth of Virginia to the State of Arizona. By an assignment of cross-error, Jeffrey L. Gray (father or husband) contends that the court abused its discretion in awarding his wife a lump sum payment in addition to periodic spousal support.

The mother was granted custody of the parties' two children, then ages nine and eleven, and the father was allowed reasonable visitation with the children. When the mother requested that the court permit the children to move with her from Virginia to Arizona, the father objected.

The court conducted an ore tenus hearing and found "that it would be in the best interest of the [mother] and the children to be allowed to return to Arizona." The chancellor further concluded, nonetheless, that he did not "believe that the law permits [him] to authorize this in light of Carpenter v. Carpenter," 220 Va. 299, 257 S.E.2d 845 (1979). Consequently, the court enjoined the mother from removing the children from Virginia.

In Carpenter, the mother wished to move her two minor children from Norfolk, Virginia, to New York City. Like the present case, the mother had been awarded custody of the children and the father granted visitation. When the father objected to the proposed removal of the children from the State, the trial court conducted an ore tenus hearing. The sole issue before the court was "whether the [mother's] proposed move to New York would serve the best interest of the children." Id. at 300, 257 S.E.2d at 846. After considering all factors, the court concluded that "the best interest of the children would not be served by moving them to New York," id. at 302, 257 S.E.2d at 848, and denied the mother's request.

We noted in Carpenter that the only issue on appeal was whether the trial court abused its discretion in refusing the mother's request. Id. at 300, 257 S.E.2d at 846. Because the court's ruling was not plainly wrong or without evidence to support it, we found no abuse of discretion and affirmed its judgment. Id. at 303, 257 S.E.2d at 848.

In the present case, the trial court found that it would be in the children's best interest to allow them to move to Arizona, and the father has not challenged this finding by assigning cross-error. The court erred, however, in ruling that Carpenter precluded it from permitting the children to be removed from the Commonwealth, even though to do so was in the children's best interest. Carpenter merely holds that before a court permits a custodial parent to remove children from the Commonwealth, it must determine that removal is in the children's best interest. Here, having found that removal was in the children's best interest, the court erred in denying the mother's request.

Next, we consider the husband's assignment of cross-error by which he claims the court erred in awarding the wife a $10,000 lump sum, payable in four equal annual installments, in addition to $600 of monthly periodic spousal support. (The husband also was required to pay $700 per month child support.) Code § 20-107, ^* in effect when the cause was tried, provided in pertinent part:

In addition to or in lieu of periodic, payments for maintenance and support of a spouse, the court may, in its discretion award a lump sum...