Petry v. Petry

• Decision Date: 16 December 2003
• Docket Number: Record No. 0076-03-3.
• Citation: 589 S.E.2d 458,41 Va. App. 782
• Parties: Craig John PETRY v. Roseann PETRY.
• Court: Virginia Court of Appeals

589 S.E.2d 458

41 Va. App. 782

Craig John PETRY v. Roseann PETRY.

Record No. 0076-03-3.

Court of Appeals of Virginia, Salem.

December 16, 2003.

Lawrence D. Diehl, Hopewell (Richard P. Cunningham; Cunningham & Drewy, Lynchburg, on brief), for appellant.

William C. Scott, IV (Michie, Hamlett, Lowry, Rasmussen & Tweel, on brief), Charlottesville, for appellee.

Present: ANNUNZIATA, CLEMENTS and KELSEY, JJ.

D. ARTHUR KELSEY, Judge.

Craig John Petry claims the chancellor erred by allowing his former wife, Roseann Petry, to move from Virginia to New York with the parties' two children. Finding that the chancellor did not abuse his discretion, we affirm.

I.

When reviewing a chancellor's decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting her the benefit of any reasonable inferences. Congdon v. Congdon, 40 Va.App. 255, 258, 578 S.E.2d 833, 835 (2003). "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." Id. (citations and internal quotations omitted).

Craig and Roseann Petry were reared on Long Island in New York and their extended families still reside there. They began dating in high school and married on Long Island in 1993, just after husband's first year in medical school at Medical College of Wisconsin. In the early years of her marriage, wife had several jobs ranging from "working for a rheumatologist, bank employment, an administrative assistant, and a second evening and part-time weekend job at a department store." Her earnings supplemented the student loans husband was receiving. In 1996, husband completed medical school and the parties moved to Pennsylvania for husband's medical residency. Wife gave birth to a daughter the same year, and in 1998 she gave birth to a son. Both parties agreed that wife would be a stay-at-home mom, though wife still worked from home for a brief period as a medical transcriptionist to supplement their income.

Wife made it a practice to return home to Long Island with the children every two to three months to visit family and friends. Visits commonly lasted for one to three weeks. The children became very familiar with Long Island and developed substantial connections there. Both children developed long-term friendships with other children living on Long Island. They were baptized at wife's family's church on Long Island. And both children have celebrated most of their birthdays, Christmas holidays, Easters, and Thanksgivings there. The children, wife testified, "know New York as their home."

Though husband accompanied them to New York at times, usually wife and the children went alone while husband either was working extended hours or was participating in social events related to work. If wife "knew he was going to be on call or if he knew it was going to be a busy week, busy rotation, he would say `why don't you go to New York and spend time with your mom, I'm not going to be around.'"

Wife and two other witnesses testified that husband had difficulty bonding with his daughter. Husband, moreover, became increasingly distant from wife and the children during the last two years of his residency. He often spent time jogging with another woman. He would also golf, work out with a different woman, or engage in other activities in lieu of spending his limited time off with his family. Wife testified that it bothered her that he was "[s]pending so much time with another woman instead of focusing on his new family. He seemed to have time to do his activities. Instead of including us in activities that we could do with a newborn infant, he found activities to do by himself instead of including us [as] a family." In May 1999, after husband's residency, the parties moved to Lynchburg, Virginia, where husband became a partner in a local medical practice. When the parties decided to move to Lynchburg, wife explained, they did so "under the condition that he understood that because it was eight hours away, eight to ten hours away, I would take more frequent trips with our children to New York. And he said that is absolutely no problem."

Husband began an adulterous affair with one of his employees in January 2000. He continued this relationship for eighteen months, becoming increasingly detached from his family, and ultimately leaving the marital residence in July 2001. About a month after husband moved out of the family residence, he admitted having the affair. Wife filed for divorce on grounds of adultery.

Husband requested no overnight visitation with the children for approximately three and a half months after moving out. In October 2001, husband began visitation with the children from 3:30 p.m. to 7:00 p.m. on Wednesdays and from 5:30 p.m. Friday evening to 5:00 p.m. Saturday evening. As of August 2002, however, he admitted he maintained no clothes or other materials for the children in his home.

During the litigation, the parties agreed to joint legal custody of the children with primary physical custody to wife. Wife stated that she wished to return home with the children to Long Island, New York. In January 2002, husband wrote a letter to wife stating that, while he objected to the move to New York, he was "willing to agree to a move outside the Lynchburg area, outside the State of Virginia even" if he could see the children "every other weekend" and "[a]lternating major holidays and birthdays." He wanted to have this visitation, however, at his home in Lynchburg. So he asked wife to meet him "half way for child pick up and drop off" and to live no further than would be reasonable for the children to "be expected to sit in the cars."

The trial court conducted a two-day ore tenus hearing, taking evidence from husband, wife, and three witnesses testifying on wife's behalf (one by de bene esse deposition). Husband called no witnesses to corroborate his testimony. The court found that wife proved husband's adultery, but nonetheless granted a no-fault divorce given the parties' twelve-month separation. The chancellor ordered joint legal custody of the children with primary physical custody to wife, in accordance with the parties' agreement.

The trial court also granted wife's request to move to New York with the children. With regard to visitation, the trial court gave two options depending on whether wife remained in Lynchburg or relocated to New York. In the former case, the court gave husband visitation every other weekend. In the event wife relocated to New York, the court granted husband visitation one weekend a month in Lynchburg, with wife responsible for transportation from New York to Lynchburg. If he desired, husband could have an additional weekend each month in New York at his own expense. Thus, whether wife relocated or not, husband was entitled to a total of two weekends a month with the children. The holiday and vacation visitation schedule remained the same whether or not wife relocated. The chancellor also granted husband four weeks of summer visitation in Lynchburg.

Husband filed a motion to reconsider. The chancellor reaffirmed his earlier ruling, holding that husband "abdicated to a great extent the caretaking and rearing of the children to the wife." Though taking note of husband's considerably better efforts after the breakup of the family,¹ the chancellor again made clear his opinion that "from all the evidence I've heard in this case" the best interests of the children would be served by relocating to Long Island with their mother. The court also pointed out that the "arrangements made both by the Court and by the wife to have a continuing contact" between husband and the children were "not significantly different than the contact he was having when they were living in Lynchburg."²

II.

No Virginia statute specifically addresses relocation of a custodial parent. Though sometimes treated as a special topic, with principles unique to it, the relocation issue is best understood under traditional constructs governing custody and visitation. See Goodhand v. Kildoo, 37 Va.App. 591, 599-600, 560 S.E.2d 463, 466-67 (2002)

. When a trial court has entered a final custody and visitation order,³ it cannot be modified absent (i) a showing of changed circumstances under Code § 20-108 and (ii) proof that the child's best interests under Code § 20-124.3 will be served by the modification. When no such order has been issued, the court must only examine the best interests question.

In either case, the chancellor's decision regarding the relocation of a custodial parent "is a matter of discretion," which we will not reverse "unless plainly wrong or without evidence to support it." Sullivan v. Knick, 38 Va.App. 773, 783, 568 S.E.2d 430, 435 (2002) (quoting Bostick v. Bostick-Bennett, 23 Va.App. 527, 533, 478 S.E.2d 319, 322 (1996)); see also Cloutier v. Queen, 35 Va. App. 413, 427, 545 S.E.2d 574, 581 (2001)

. On appeal, we will overturn a decision committed to the chancellor's sound discretion only upon a showing that he abused that discretion. An abuse of discretion can be found if the "trial court uses `an improper legal standard in exercising its discretionary function,'" Congdon, 40 Va.App. at 262,

578 S.E.2d at 836 (quoting Thomas v. Commonwealth, 263 Va. 216, 233, 559 S.E.2d 652, 661 (2002)), because a trial court "`by definition abuses its discretion when it makes an error of law,'" Shooltz v. Shooltz, 27 Va.App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)); see also Mughrabi v. Commonwealth, 38 Va.App. 538, 545, 567 S.E.2d 542, 545 (2002).

A trial court also abuses its discretion by failing "to consider the statutory factors required to be part of the decisionmaking process," Congdon, 40 Va.App. at 262, 578 S.E.2d at 836 (citing Rowe v. Rowe, 24 Va. App. 123, 139, 480 S.E.2d 760, 767 (1997)), or by...