Lijeron v. Lijeron, Record No. 1344-16-4
| Decision Date | 05 September 2017 |
| Docket Number | Record No. 1344-16-4 |
| Court | Virginia Court of Appeals |
| Parties | PABLO JESUS LIJERON v. CHRISTIAN PAOLA LIJERON |
UNPUBLISHED
Present: Judges AtLee, Malveaux and Senior Judge Annunziata
Argued at Fredericksburg, Virginia
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Charles J. Maxfield, Judge Designate
Luis A. Perez (Luis A. Perez, P.C., on briefs), for appellant.
Eric E. Clingan (The NoVa Law Firm, on brief), for appellee.
Pablo Lijeron ("father") appeals from an order granting his wife, Christian Paola Lijeron ("mother"), primary physical custody of their daughter. Father contends that the circuit court's custody determination was inconsistent with the evidence, the court's own factual findings, and the statutory factors enumerated within the Code of Virginia. We disagree and affirm.
Mother and father have one daughter, B., who was born in May 2012. Around that time, the couple moved in with father's parents for financial reasons and for childcare assistance. The five Lijerons resided together in a three-bedroom townhouse in Alexandria, Virginia. Eventually, father's relationship with mother soured, and the two separated. Mother moved into the townhouse's finished basement while father and B. continued to reside upstairs with his parents.
In April 2015, mother told father that she intended to take B. to Kansas to visit a family member. During mother's trip, father called and texted her several times, asking to speak with B. When mother did not let father speak with their daughter, father became suspicious. He eventually went to the airport to intercept mother's return flight. Though mother disembarked from the plane, B. did not.
Mother later acknowledged that she had not visited family in Kansas with B. but instead travelled to Florida alone. She admitted that she lied to father about B.'s whereabouts.
By May 2015, father was concerned that mother might try to take B. and hide her. To prevent this concern from materializing, he filed a custody petition in the Juvenile and Domestic Relations District Court for Fairfax County ("J&DR court") on May 6, 2015. Simultaneously, he filed a motion to prevent either mother or himself from removing B. from the residence.
Mother received personal service of the custody petition and motion on May 14; about five days later, however, she sent father a text message informing him that she had already signed a lease for a new residence on May 2. She stated in the message that she intended to move out of the Alexandria townhouse with B. at the end of the month. On May 20, she sent father a message informing him that as of May 2, she and B. officially resided in Silver Spring, Maryland.
When mother finished removing her things from the Lijeron residence at the end of May, she and B. instead went to live with mother's aunt, Sylvia Araica, in Fredericksburg, Virginia.
In July 2015, mother filed for divorce in the Circuit Court of Fairfax County ("circuit court"). A few months later, in October 2015, the J&DR court entered an order that granted both parents joint legal custody of B. and established an alternating scheme for physical custody. Mother appealed that order to the circuit court.
In the circuit court, Araica testified that on May 1, 2015, she and mother executed a lease mother had created using another party's form. But the form they used to create the lease indicated that it last had been altered in July 2015. Neither mother nor Araica could explain how they had created a lease in May using a revision of a form that did not exist until several months later.
Mother holds both an associate's degree in pharmacy and a bachelor's degree in accounting. Her current employer, a certified public accountant named Daniel Gilliland, testified that she currently works as a receptionist and office manager. Mother told the court that she plans to begin applying for positions as an accountant in the future.
Father, meanwhile, had recently begun a new job as a salesperson at a local bank branch. He acknowledged that this particular branch is open seven days a week, and because he does not have full control over his schedule, he must remain available to work Saturdays and Sundays. During weekdays, father returns home around 7:45 or 8:00 p.m. When he works Saturdays, he returns at around 6:00 p.m. On Sundays, he returns at around 4:30 p.m.
Father admitted that he had been fired from his previous job as a head teller at another bank. B. was enrolled in father's health insurance plan through this prior employer. Because father failed for several weeks to tell mother he had lost his insurance, she had to transfer B. to her own healthcare plan using back-dated paperwork.
Although father still resided with his parents as of the date of the custody hearing, B.'s paternal grandmother is often out of the house because she works two jobs. She works full-time as a nurse from 2:00 p.m. until 10:30 p.m. She then sometimes travels directly to her second, part-time job, where she works until 2:00 or 3:00 a.m. She acknowledged that she sometimes does not return home until 6:00 a.m. B.'s paternal grandfather works occasionally in construction. A native of Bolivia, he travels back to that country for infrequent visits; however, when he does so, he remains abroad for months at a time.
Mother testified that she consistently invited father to B.'s extracurricular activities, offered him extra days to spend with B., and involved him in their daughter's medical appointments. She also testified that she could foresee no problem with alternating physical custody with father each week if he moved to Fredericksburg.
At the same time, mother faulted father for failing to bathe B. and for not administering her medications as directed by her physician.
According to mother, B. is generally healthy but regularly needs medication to control her allergies; however, she testified that father forgot to send B.'s medication home with her on one occasion. When father realized his mistake, he offered to take the medication to mother during his lunch break. Mother said that she would not wait for lunch because she already had an appointment in Fredericksburg. And even though she was already in Tyson's Corner at the time, she was not willing to go by his parents' home in Alexandria to collect the medication before continuing to Fredericksburg. She explained that because father "caused this inconvenience . . . he needed to find a way to get [B.] the medication."
Mother also testified that after spending one afternoon with father, B. returned home with unexplained bruises on her back and knee. Although mother said she was concerned for her daughter and wanted to know how the bruises occurred, she never asked father about the bruises. Mother explained that she did not ask father about the bruises because he would have caused "drama." Rather than speaking with father, she instead called her pediatrician to describe the bruises over the phone and then called Anne Devine, a clinician whom she had contacted to provide individual therapy sessions for B.
At the conclusion of the evidence, the circuit court made a number of factual findings related to each of the "best interests" factors enumerated in Code § 20-124.3. The court first found that B. is thriving but that her parents' quarrelling might have negative long-term effects on her well-being. Though it found that both parents were "trying real hard" in their relationship with B., the court noted that an acrimonious divorce would necessarily disrupt their daughter's sense of security. While the court noted that its ruling would tend to define each parent's role in B.'s future upbringing, it cautioned both parents to remain involved.
When addressing mother's propensity to actively support B.'s contact with father, the court found that mother initially took B. and denied father access to her. The court noted, however, that little evidence suggested that mother had persisted in that conduct after the J&DR court entered its initial custody order.
When discussing the parents' ability to cooperate and resolve disputes, the court highlighted mother's rigidity when father forgot to send B.'s medication home with her. The court stated that mother's decision to take B. to a psychologist instead of speaking with father after discovering B.'s unexplained bruises was "even worse" than the medication issue. The court concluded from these events that mother was more focused on developing evidence against father than on caring for her child.
After noting that neither B.'s personal preference nor any history of abuse was at issue, the court proceeded to consider four additional factors it deemed important.
First, the court expressed its concern over mother's honesty, observing that she had lied about a number of facts, including her lease and her April 2015 trip.
Second, the court observed that mother had a temper. The judge warned mother to keep her temper in check so that B. would not emulate that trait.
Third, the court addressed each parent's maturity and capacity to raise a child. The court emphasized that father is thirty-seven years old but continues to live with his parents, which the court believed to reflect negatively on both his "maturity" and his "ability to raise a child." By contrast, the court noted with approval that mother had earned two college degrees. The court observed that mother's pursuit of higher education "show[ed] somebody is thinking about their future" and that a child's future is tied to her parents'.
Finally, the court found that mother's willingness to share B. if practicable weighed in favor of awarding her custody. The court noted with approval that she had testified she was willing to share physical custody if father moved to the Fredericksburg area.
Based on these considerations, the circuit court awarded both parents joint legal custody of B. but awarded primary physical custody to mother, subject to father...
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