Hart v. Hart

Decision Date05 June 2012
Docket NumberRecord No. 1724-11-1
CourtCourt of Appeals of Virginia


Record No. 1724-11-1


Dated: June 5, 2012

Present: Judges Kelsey, Huff and Senior Judge Clements
Argued at Chesapeake, Virginia


Marjorie A. Taylor Arrington, Judge

Thomas M. Wolf (Joseph M. Rainsbury; LeClairRyan, P.C., on briefs), for appellant.

Kristi A. Wooten (Robin Michelle Barnett, pro se, on brief), for appellee.1

In this hotly contested divorce case, the trial court granted sole physical custody of two young children to their mother, Robin Barnett Hart (wife). The court awarded visitation privileges to their father, Ryan Michael Hart (husband), but required that visitation be supervised "at this point" in time. App. at 181. The court also admitted an expert report into evidence, considered the recommendations of the guardian ad litem, awarded wife a portion of her attorney fees and costs, and, split the guardian ad litem fees and costs evenly between the parties. Finding no reversible error in any of the trial court's decisions, we affirm.

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When reviewing a trial court'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." Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003) (citations omitted). "That principle requires us to discard the evidence of the appellant which conflicts, either directly or inferentially, with the evidence presented by the appellee at trial." Brandau v. Brandau, 52 Va. App. 632, 635, 666 S.E.2d 532, 534 (2008) (citation omitted). These principles create a prism through which we view the evidence at trial and have considerable efficacy in cases where, as here, the evidence is highly contested.

At an evidentiary hearing spanning twelve days, the trial court heard testimony from the parties and more than twenty fact witnesses and experts. The parties introduced more than thirty exhibits, not counting exhibits and affidavits attached to post-trial motions. In all, the appellate record contains twenty-seven transcripts, six trial court manuscripts, and three sealed exhibit envelopes, as well as three sealed guardian ad litem reports.2 We will discuss only those aspects of the factual record pertinent to our decision and will do so in the context of husband's arguments on appeal.

At the time of trial, husband and wife were both naval officers. Husband served as a lieutenant at the Department of Defense Joint Intelligence Operations Center. Wife served as a naval cryptology officer with NATO's Allied Command Operations as the Executive Officer for the NATO Civil-Military Fusion Centre. They married in 2003 and had two children — a son in 2005 and a daughter in 2007. Husband and wife separated in 2008.

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Husband filed for divorce and sought custody of the children. At trial, wife alleged that their brief marriage ended for various reasons, including her belief that husband had sexually molested one of the children, his inexplicable refusal to engage in conjugal relations with her, his addiction to prescription drugs and alcohol, and his increasingly erratic behavior. Husband denied these allegations.

In support of her request that husband's visitation with the children be supervised, wife testified that, prior to their separation, husband chronically drank alcohol to excess and abused prescription drugs. When asked if she had any "concerns about Mr. Hart's interaction with the children for the future, from now going forward," wife testified:

My concerns now going out would be the fact that I believe that he has serious drug and alcohol issues. I experienced them throughout our whole marriage. We went to three separate therapists to try to fight this battle with alcohol, and then the drugs after he was diagnosed with the GERD and had access to the serious opioids in 2007, which took him away from me.

App. at 827. Husband "drank every night," wife said. Id. at 916. The trial court inferred from wife's testimony that husband "commonly mixes alcohol and prescription drugs during his personal time and loses control." Id. at 174.

In 2008, wife discovered a psychological evaluation of husband performed in 2000.3 At that time, husband reported "fairly heavy drug use in graduate school; it helped him concentrate and reduced his anxiety." Id. at 211. His mother reported "significant emotional issues" and

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saw him as "depressed" and, the evaluation report recounts, he "tends to be anxious, manic, and hyperactive." Id. After receiving a prescription for Oxycontin to treat migraines:

It became a reality to him that after the headache stopped, he could not stop using the Oxycontin. He began doctor shopping and was taking Oxycontin daily, 30 to 40 mgs per day, for one year. This was 1997 to 1998. Mr. Hart's friends and parents told him that he needed help and needed to stop . . . . He visited a few facilities in California, and his mother came out to help him find treatment for his Oxycontin addiction.

Id. at 215. "Mr. Hart was treated by a psychopharmacologist who used benzodiazepines . . . to prevent him from withdrawal while titrating the Oxycontin." Id. at 216. "When he moved to Nashville, he was addicted to Percocet, but could not obtain it. He went into withdrawal, was hospitalized for two weeks, and went to outpatient for two months." Id. at 211. The 2000 report concluded that husband suffered from "Mood Disorder, NOS, Opioid Dependence, in early full remission, Attention Deficit Hyperactivity Disorder, Combined Type, [and] Cluster Headache[s]." Id. at 212.

After reviewing husband's more recent medical records, the trial court found he "filled 530 days of what he characterized as pain pills which amounts to 1690 pain pills in 2 years. Of those pain pills, he filled 320 days' worth or 1450 pills of Ultram, Vicodin, Flexeril, and Robaxin." Id. at 170. Even after considering this extensive list, the court found the record "does not provide an accurate picture" because "there were multiple prescriptions from different doctors . . . being filled at other pharmacies." Id. The court also took note of husband's failure to alert his current doctors to his history of addiction to opioids, resulting in narcotics prescriptions between 2007 and 2008 for pain associated with an esophageal tear attributed to gastroesophageal reflux disease (GERD).4 Wife also testified that she observed husband

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drinking his mother's prescription codeine cough syrup, id. at 925, and claimed he stole "fifteen pills" from wife's "mother's medical bag," id. at 850.

Regarding husband's erratic behavior, wife testified husband displayed peculiar behaviors throughout the marriage. Id. at 173. In 2008, he accused wife of "whoring" around and warned her to use condoms, but denied the next day any recollection of saying these things. Id. at 915-16. While on a trip to visit her sister, wife said husband left a voice message consisting solely of one of the children crying, which she claimed he did "if I went somewhere that he didn't want me to go." Id. at 917-18. Wife described various other incidents where husband said disparaging things about wife to the children and engaged in inexplicable conduct.5 In addition, the trial court itself noted "that the husband has exhibited erratic and paranoid behaviors throughout this case." Id. at 173.

The trial court found wife "to be a reliable witness." Id. at 169. The court described husband as "exceedingly evasive, uncooperative, and paranoid throughout this case." Id. at 178. The court did not find husband to be reliable. "Many of his explanations did not make sense," the court found, and his testimony "was evasive and exhibited a selective memory when cross examined regarding these issues." Id. at 172. The court also took into account that husband had "not complied with previous orders of the Court regarding the children." Id. at 178. After presiding over many days of pretrial hearings and a lengthy trial, the court found:

the husband has exhibited erratic and paranoid behaviors throughout this case. It is clear that he believes everyone in this

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case is conspiring against him, including the guardian ad litem. He has not been forthcoming with providing his medical records to the guardian ad litem and has become increasingly rude to her. Throughout the proceedings, he has seemed understandably stressed. However, the Court also found him to be evasive, sarcastic, and uncooperative during the proceedings and has serious doubts as to his credibility. He certainly has exhibited a selective memory. He could recall the most specific details when questioned by his own attorneys but generally could not remember anything presented by the wife, the guardian ad litem, or the Court.

Id. at 173-74.

After reviewing the statutory factors governing its decision, the trial court found it "in the best interests of the children for supervised visitation to continue." Id. at 180-81. The supervision requirement (initially imposed by pendente lite orders)6 should remain, the court stated, because it was "still extremely concerned about the husband's drug and alcohol use, as well as his erratic behavior. The Court is not comfortable that...

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