Haase v. Haase

• Decision Date: 22 August 1995
• Docket Number: No. 1175-94-1,1175-94-1
• Citation: 20 Va.App. 671,460 S.E.2d 585
• Parties: Gregory A. HAASE v. Karen U. HAASE. Record
• Court: Virginia Court of Appeals

Page 585

460 S.E.2d 585

20 Va.App. 671

Gregory A. HAASE v. Karen U. HAASE.

Record No. 1175-94-1.

Court of Appeals of Virginia.

Aug. 22, 1995.

Lawrence D. Diehl, Hopewell, for appellant

Moody E. Stallings, Jr. (Kevin E. Martin-Gayle; Stallings & Richardson, P.C., on brief), Virginia Beach, for appellee.

Present: KOONTZ ^* and ELDER, JJ., and DUFF, Senior Judge.

KOONTZ, Judge.

Gregory A. Haase (father) appeals various decisions of the Circuit Court of the City of Virginia Beach in a decree of divorce a vinculo matrimonii from his former wife, Karen U. Haase (mother), based upon a report and recommendation of James A. Evans, Commissioner in Chancery (commissioner), awarding custody of the couple's two minor children, Benjamin, age twelve, and Emily, age eight ¹, to mother. Father contends that the chancellor erred (1) in approving the commissioner's decision over the objection of a parent to receive testimony from the couple's children where expert testimony suggested that requiring the children to testify would be detrimental to their welfare; (2) in approving the commissioner's decision to receive the children's testimony in an informal proceeding in camera without counsel or the parties present; and (3) in adopting the commissioner's findings of fact and awarding sole custody to the mother. For the following reasons, we affirm the chancellor's decisions.

I. FACTUAL AND PROCEDURAL BACKGROUND

The couple married in 1980 and separated in 1991. After seventeen months separation, mother filed for divorce on the ground of separation for more than one year without hope of reconciliation. Mother sought sole custody of the children. Father denied a mutual separation had occurred, asserting that he retained a hope of reconciliation. He charged in a cross-bill that mother was guilty of desertion and adultery, alleged that the couple shared joint custody of the children at that time pursuant to a juvenile and domestic relations district court (juvenile court) order confirming a custody agreement, and sought sole custody of the children. Mother denied the allegations of desertion and adultery but admitted the existing custody arrangement. ²

The Honorable Robert B. Cromwell, Jr., then chancellor of record, referred the matter to the commissioner. During the commissioner's first hearing, mother indicated that she desired to have Benjamin give evidence to the commissioner in camera with counsel, but not the parties, present. As counsel for father was not aware of this request prior to it being made, the commissioner deferred action on the request at that time.

At a subsequent hearing, father objected to having Benjamin testify, asserting that it would be psychologically harmful to Benjamin. A licensed professional counselor testified that Benjamin was torn between his parents and had been alienated against his father by his mother.

After additional argument, the commissioner ruled that he would receive evidence from the children in camera with neither the parties nor counsel present. Father objected that this was not proper procedure absent consent of the parties and because of evidence that the children had been coached. The commissioner suggested that the parties could seek a directive from the court "if [the parties] want me to do it any other way." Prior to the children testifying at a third hearing, father renewed his objection before the commissioner but did not seek a directive from the court. The children then testified in camera without counsel or the parties present. The testimony took the form of a Father and his lay and expert witnesses maintained that mother was disinterested in the children's welfare, that she had interfered with the joint custody arrangement and father's attempts to promote family counseling, and that she had attempted to alienate Benjamin against his father. Father further maintained that he had curtailed his medical practice in order to spend more time with the children to compensate for mother's lack of interest, resulting in a significant decrease in income. Father outlined a plan for providing child care and maintaining the former marital home so that the children would continue in the same schools.

conversation directed by questions from the commissioner on various subjects, including school, summer activities, friends and the children's relationship with each parent.

Mother and her witnesses testified that father burdened the children with too many activities and used them as pawns in his reconciliation attempts. An expert witness for father conceded that Benjamin did not like the intense schedule of activities prepared by his father. He further testified that Benjamin was "afraid of his father" and "feels he is on a whirlwind trip." Mother's evidence countered the father's claim that she was disinterested in the children's upbringing and education. Mother asserted, in a letter admitted into evidence, that she refused to participate in counseling because the counsellor had a prior professional relationship with father.

At the conclusion of all of the testimony, the commissioner found that the existing joint custody arrangement was not in the children's best interest and recommended that mother be given sole custody with holiday and extended summer visitation for father. Pursuant to Rule 2:18(c), the commissioner filed his report and a transcript of the proceedings and testimony, including the testimony of the children in the in camera interview, with the clerk of the circuit court. Father excepted to the commissioner's recommendation regarding custody and filed a motion with the chancellor requesting that the issue be referred to the juvenile court. The chancellor adopted the commissioner's findings and recommendations, granting the divorce on the grounds of the mother's adultery and desertion, while awarding sole custody of the children to mother. This appeal followed.

II. AUTHORITY OF THE COMMISSIONER IN CHANCERY

"A commissioner in chancery is an officer appointed by the chancellor to aid him [or her] in the proper and expeditious performance of his [or her] official duties." Raiford v. Raiford, 193 Va. 221, 226, 68 S.E.2d 888, 891 (1952). When a court refers a cause to a commissioner in chancery, it does not delegate its judicial functions to the commissioner. Lawrence v. Lawrence, 212 Va. 44, 47, 181 S.E.2d 640, 643 (1971). Thus, the commissioner, while functioning as an independent judicial officer, is a surrogate for the chancellor and is subject to the chancellor's control. Conversely, the actions of the commissioner are not binding on the chancellor, who must exercise independent judicial judgment over the evidence presented in the commissioner's report. Once adopted by the chancellor, however, the actions, findings and recommendations of the commissioner become those of the supervising court and are due considerable deference on appeal. See Brawand v. Brawand, 1 Va.App. 305, 308, 338 S.E.2d 651, 652 (1986).

In undertaking the receipt of evidence, the commissioner must be cognizant of the rules of evidence and procedure applicable to proceedings in chancery. However, the commissioner's hearing is not a trial, and the standards applicable to such proceedings are necessarily relaxed in order to accommodate the judicial economy contemplated by the statutory authorization of the office of commissioner. See Code § 8.01-607. Accordingly, the manner in which the commissioner requires the parties to produce evidence, calls and examines witnesses, and rules on the admissibility of evidence is entrusted to the commissioner's discretion "unless otherwise directed by the decree of reference" or an amendment thereto sought and obtained by a party. Rule 2:18.

III. CALLING THE CHILDREN AS WITNESSES

Recognition of the potential conflict between the interests of parents and their children in custody cases has been firmly established in Virginia law. See Williams v. Woolfolk, 188 Va. 312, 317, 49 S.E.2d 270, 272 (1948). Although the wishes of the child are not controlling, the commissioner may properly consider that preference and give weight to it in making a custody recommendation to the chancellor. See Hall v. Hall, 210 Va. 668, 672, 173 S.E.2d 865, 868 (1970); Hepler v. Hepler, 195 Va. 611, 620, 79 S.E.2d 652, 658 (1954). Prior to receiving evidence from the child, the commissioner must determine that the child is "of reasonable intelligence, understanding, age and experience to express such a preference." Code § 20-124.3(7); see also Durant v. Commonwealth, 7 Va.App. 454, 462, 375 S.E.2d 396, 400 (1988)(trial court's judgment as to competence of child witness will not be disturbed on appeal absent manifest error).

Here, the commissioner elected to receive evidence from the children in order to determine their preference as to custody as is contemplated by Code § 20-124.3. Despite father's assertion that the experience of being compelled to testify would be detrimental to the children, we cannot say that the commissioner abused his discretion in electing to examine the children. The evidence presented by father was equivocal and speculative as to the potential harm. The commissioner was privileged to consider father's self-interest in seeking to obstruct the receipt of evidence from the children and in weighing the credibility of the evidence presented by father seeking to accomplish that end. Moreover, the record adequately supports a conclusion that these children, although young, were of sufficient intelligence, understanding and experience to express their views concerning their custody.

IV. THE IN CAMERA INTERVIEW

No person who is a party to a divorce proceeding--litigant, counsel, or chancellor--relishes the spectacle of a child testifying in open court as to his or her preference for one parent over another. See Buck v. Buck, 320 Mich. 624, 31 N.W.2d 829, 831 (1948); Price v. Price, 127 Ark. 506, 192 S.W. 893, 894 (1917). Accordingly, the preferred method of...