Joynes v. Payne

• Decision Date: 28 August 2001
• Docket Number: Record No. 1556-00-2.
• Citation: 551 S.E.2d 10,36 Va. App. 401
• Parties: Stanley K. JOYNES, III v. Maria L. PAYNE.
• Court: Virginia Court of Appeals

551 S.E.2d 10

36 Va. App. 401

Stanley K. JOYNES, III v. Maria L. PAYNE.

Record No. 1556-00-2.

Court of Appeals of Virginia.

August 28, 2001.

Edward D. Barnes (Charles E. Powers; Barnes & Batzli, P.C., on brief), Chesterfield, for appellant.

James C. Roberts (Dawn B. DeBoer; Melissa J. Roberts; Mays & Valentine, L.L.P., on brief), Chesterfield, for appellee.

Present: ELDER, ANNUNZIATA and HUMPHREYS, JJ.

HUMPHREYS, Judge.

Stanley K. Joynes appealed a final decree of divorce in which the circuit court granted his wife, Maria L. Payne, a divorce, granted Payne custody of the parties' two children, distributed the parties' marital property, and granted Payne spousal support, child support, and attorney's fees. Joynes alleged that the trial court erred in: (1) awarding custody of the parties' children to Payne; (2) failing to allow Joynes to present additional evidence after the close of evidence; (3) failing to establish May 28, 1999 as the date of the custody award; (4) awarding the ordered level of spousal support; (5) failing to specify a termination date for the spousal support awarded; (6) awarding the ordered level of child support; (7) awarding Payne attorney's fees; and (8) failing to appropriately consider the evidence regarding the equitable distribution of the parties' property. Payne asserted on cross-appeal that the trial court erred in assessing against her a negative non-monetary contribution. In the alternative, Payne contended that the trial court improperly quantified the negative non-monetary contribution. By published opinion dated May 8, 2001, we affirmed in part, and reversed and remanded in part.

By order entered June 19, 2001, we stayed our previous decision and granted Joynes' motion for rehearing based on Joynes' contention that the reversal and remand on the issue of Payne's child support obligation amounted to a judgment allowing an imputation of income at a lower standard for spousal support than that used for child support, which he argued was contrary to established case law and statutes. Upon reconsideration of this matter and for the reasons that follow, we find no reversible error and affirm the judgment of the trial court in its entirety.

I. Background

"Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below." Martin v. Pittsylvania County Dep't of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).

The parties were married on August 9, 1980. There were two children of the parties' marriage: Elizabeth, born August 15, 1991, and Alexandra, born January 30, 1995. In January 1998, the parties agreed to separate. On July 2, 1998, Joynes filed his bill of complaint. The parties did not physically separate until November 27, 1998. From that time, until the resolution of the matter, the parties operated under an agreed upon pendente lite order.

An evidentiary hearing was held before the Commissioner in Chancery on May 3, 4, 5, 6, 7, and 10 of 1999. An additional hearing was held before the commissioner on May 29, 1999. The testimony presented during the hearing established that Payne had suffered from bulimia since her college years. Payne experienced periodic bouts of the disorder until approximately 1993, when a partner with the law firm where she worked informed Joynes of Payne's condition. Although Payne had denied any such disorder in the past, Payne admitted to her problem at that time. Since then, she has come to terms with the disorder and has sought treatment. At the time of the trial, Payne was "medically cured" of the bulimia but continued to consult with her physicians on a regular basis.

It was undisputed during the trial that the parties' children were physically healthy and enjoyed a good relationship with both parents. Payne had taken an extended leave of absence from her position as a partner in a law firm both before and after the birth of Elizabeth. In January, 1993, Payne reduced her employment to part-time, working only three days per week. She took a third extended leave of absence after the adoption of Alex, the parties' second child. Payne then returned to work part-time until March, 1997, when she ceased work in order to attend to her family responsibilities. Joynes testified that he objected to Payne's decision to terminate her employment.

Until May, 1996, Joynes worked a considerable number of hours as a partner with another law firm. At that time, he was diagnosed with cancer and underwent surgery and treatment. Because of his illness, Joynes cut back his work hours but continued to work several hours every day.

Testimony established that Joynes enjoyed a good relationship with his family and had several family members living close by, who had a close relationship with the children. Payne's family resides in Florida, and, although her relationship with them was strained at one time, evidence was presented demonstrating that the relationship had improved. However, she and the children did not spend time with her family on a regular basis.

During the parties' separation, prior to the entry of the final decree, the evidence established that Payne allowed Joynes visitation as agreed upon in the decree. However, although Payne allowed Joynes additional visitation, she did not allow Joynes additional visitation on every occasion that Joynes requested it.

After the close of the evidence and upon review of written memoranda submitted by both parties, the commissioner filed his eighty-eight page report on January 4, 2000. The parties filed exceptions to the report and on March 27, 2000, argued their exceptions to the trial court. On April 10, 2000, Joynes filed a motion with the trial court, requesting a hearing to present new evidence. The trial court denied the motion on April 11, 2000 during a telephone conference among both parties' counsel and the court. After fully reviewing the extensive transcript, exhibits and legal memoranda, the trial court affirmed the commissioner's award on May 5, 2000. The final decree was entered on June 5, 2000.

On appeal, Joynes raises seventeen assignments of error. Payne, on cross-appeal, alleges three additional errors.¹

II. Custody

We first note that:

[w]hile the report of a commissioner in chancery does not carry the weight of a jury's verdict, Code § 8.01-610, it should be sustained unless the trial court concludes that the commissioner's findings are not supported by the evidence. This rule applies with particular force to a commissioner's findings of fact based upon evidence taken in his presence, but is not applicable to pure conclusions of law contained in the report. On appeal, a decree which approves a commissioner's report will be affirmed unless plainly wrong. . . .

Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296 (1984).

With regard to the award of custody, Joynes argues that the commissioner and the trial court erred in: (1) failing to grant Joynes custody because the evidence established that Payne's actions had been adverse to the best interests of the children; (2) applying an erroneous burden of proof with respect to Joynes' petition for custody; (3) failing to substantively consider the factors set forth in Code § 20-124.3; (4) failing to consider Joynes as a custodial parent; (5) refusing Joynes' request to present additional evidence after the close of evidence; and (6) failing to establish the date of the award of custody as May 28, 1999, the date of the close of evidence.

In awarding Payne physical custody of the children, the commissioner found as follows with regard to Payne's bulimia:

[I]n order to obtain physical custody solely as a result of defendant's bulimia, I think the plaintiff must show that the defendant is not consistently alert to any signs or symptoms of relapse and willing to seek immediate treatment, or that defendant does not fully understand the potential genetic predisposition towards the illness and the role environmental factors may play in developing an eating disorder in children. The evidence does not prove the defendant lacking in either measure.

* * * * * * *

For all of the above reasons, I find that defendant's bulimic condition, standing alone, is not a sufficient reason to award sole custody of Elizabeth and Alex to the plaintiff.

The commissioner then specifically discussed and considered each of the factors listed in Code § 20-124.3, as it read during the hearing of this matter.² The commissioner also recognized that serving the best interests of the children was his primary concern. He noted that Payne had been the primary nurturer and care-provider since the children's births. He also noted that Payne's "possessory stance" toward Joynes, with regard to visitation, could have a negative impact on the relationship between Joynes and the children. In addition, he stated that Joynes' "forays" with another woman caused him some concern. Yet, he found both Joynes and Payne to be fit parents and ultimately ruled that, "[i]n consideration of the evidence presented pursuant to Virginia Code § 20-124.3, and the applicable case law, [he was] constrained to find that [Payne] should remain the physical custodian for Elizabeth and Alex."

Code § 20-124.3 specifies the factors a court "shall consider" in determining the "best interests of a child for . . . custody or visitation." Although the trial court must examine all factors set out in Code § 20-124.3, "it is not `required to quantify or elaborate exactly what weight or consideration it has given to each of the statutory factors.'" Sargent v. Sargent, 20 Va.App. 694, 702, 460 S.E.2d 596, 599 (1995) (quoting Woolley v. Woolley, 3 Va.App. 337, 346, 349 S.E.2d 422, 426 (1986)). As long as evidence in the record supports the trial court's ruling and the trial court has not abused its discretion, its ruling must be affirmed on appeal. See Alphin v. Alphin, 15 Va.App. 395, 405, 424 S.E.2d 572, 578 (1992)

.

Here, the...