Reid v. Reid, Record No. 2653-05-1 (Va. App. 7/18/2006)
| Decision Date | 18 July 2006 |
| Docket Number | Record No. 2653-05-1. |
| Parties | WINSTON J. REID, III v. TARA G. REID. |
| Court | Court of Appeals of Virginia |
Appeal from the Circuit Court of the City of Newport News, David F. Pugh, Judge
Terry N. Grinnalds for appellant.
(Paul H. Wilson; Wilson & Wilson, P.C., on brief), for appellee.
Present: Judges Benton, Humphreys and Petty
Winston J. Reid, III ("father") appeals from the circuit court's October 21, 2005 final custody and child support decree. On appeal, he argues that (1) the trial court erred by transferring custody of the parties' minor child to Tara G. Reid ("mother") without first finding a material change in circumstances; (2) the evidence does not support the court's decision to transfer custody of the child; and (3) the trial court erred in its child support determination. For the reasons stated below, we affirm the trial court's decision in part and reverse it in part.
Father first contends that the trial court erred in transferring custody of the parties' minor child to mother without first finding a material change of circumstances. Mother contends father procedurally defaulted this argument pursuant to Rule 5A:18.
When the trial court stated its ruling transferring custody at the June 21, 2005 hearing, father's counsel did not make a specific, contemporaneous objection as required by Rule 5A:18.
It is well established that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice . . . ." Rule 5A:18. Furthermore, an endorsement of an order as "seen and objected to" is typically Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d 923, 926 (2000) (quoting Mackie v. Hill, 16 Va. App. 229, 231, 429 S.E.2d 37, 38 (1993)) (internal citations omitted). While father did endorse the order in question as "Seen and objected to," he did not specifically object to the court's failure to make an explicit finding of a material change in circumstances.1 Thus, this issue was not properly preserved for appeal.
At oral argument before this Court, father conceded that trial counsel did not formally object to the trial court's ruling regarding a material change in circumstances and requested that the Court consider the issue under the ends of justice exception to Rule 5A:18.
According to Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989), "the ends of justice exception is narrow and is to be used sparingly." In order to apply the exception, father must prove that the error below was "clear, substantial and material." Id. Furthermore, the record "must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred." Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997).
The record before this Court does not show that a miscarriage of justice occurred in the trial court's custody determination. While the trial court did not make an explicit finding of a material change in circumstances, it did specifically find that several circumstances had changed since the initial custody determination. The father had become involved in an adulterous relationship to which the child was exposed, father's work schedule had entailed increased sea duty, and the mother had experienced the positive changes of a more stable living arrangement and new employment. Because credible evidence existed for the trial court's determination, the trial court's determination will not be disturbed on appeal. See Ohlen v. Shively, 16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993) ().
Father also contends that the trial court erred in modifying the earlier custody decree without properly considering the factors set forth in Code § 20-124.3 to determine whether a change in custody was in the best interests of the parties' child.
The trial court's custody determination is "entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it." Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988).
Code § 20-124.2(B) requires that the trial court "shall give primary consideration to the best interests of the child." Code § 20-124.3 states: "[I]n determining best interests of a child for purposes of determining custody or visitation arrangements . . . the court shall consider" the statutory factors. While the trial court must examine the factors, it is not "required to quantify or elaborate exactly what weight or consideration it has given to each of the statutory factors." Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986).
Here, the trial court stated in its order that it "consider[ed] . . . the factors set forth in [Code § 20-124.3] and [gave] particular weight to the living arrangements of [father]" in determining that it was in the child's best interests that mother have primary custody. At the June 21, 2005 custody hearing, the court addressed each of the statutory factors in its ruling. The court emphasized that mother was gainfully employed, lived with her mother in a home "quite conducive for rearing a child," that the father was somewhat inflexible regarding visitation, that his military service subjected him to being "called to sea or called to duty" with little notice, and that father was "living in an open and obvious relationship" with another woman.
We hold the trial court's decision was based on a proper consideration of the evidence as it related to the statutory factors, and that evidence supports the conclusion reached. We cannot say that this decision was plainly wrong; thus, we affirm the trial court's determination that the best interests of the child are served by transferring custody to the mother.
Father contends that the trial court erred in refusing to determine the amount of child support using the shared custody guidelines, as the court's visitation order allows him to have the child over 90 days each year.
Code § 20-108.2 governs the determination of child support. According to the statute, "[t]here shall be a rebuttable presumption in any judicial or administrative proceeding for child support . . . [including cases involving shared custody] . . . that the amount of the award which would result from the application of the guidelines set forth in this section is the correct amount of child support to be awarded." Furthermore, Code § 20-108.2(G)(3)(a) states that the shared custody guidelines are to be used "where a party has custody or visitation of a child . . . for more than 90 days of the year, as such days are defined in subdivision G 3 (c)." The statute defines a "day" for purposes of determining shared custody as "a period of 24 hours" and goes on to explain:
where the parent who has the fewer number of overnight periods during the year has an overnight period with a child, but has physical custody of the shared child for less than 24 hours during such overnight period, there is a presumption that each parent shall be allocated one-half of a day of custody for that period.
This Court has held that the "starting point for a trial court in determining the monthly child support obligation of a party is the amount as computed" pursuant to the statutory schedule. Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991); see also Pharo v. Pharo, 19 Va. App. 236, 239, 450 S.E.2d 183, 184-85 (1994). The trial court may then adjust that amount based on the factors found in Code §§ 20-107.2 and 20-108.1. The statute requires that such adjustments "be supported by written findings which state why the application of the guidelines . . . would be unjust or inappropriate . . . ." Code § 20-108.1(B). Furthermore, the order "must identify the factors that justified deviation . . . and explain why and to what extent the factors justified the adjustment" in "enough detail and exactness to allow for effective appellate review of the findings." Richardson, 12 Va. App. at 22, 401 S.E.2d at 897.
The statute also permits deviation from the shared custody guidelines when the trial court makes "written findings in the order . . . that [their] application . . . would be unjust or inappropriate . . . as determined by relevant evidence pertaining to the [statutory] factors." Code § 20-108.2(A). Furthermore, no shared custody "calculation . . . shall . . . create or reduce a support obligation to an amount which seriously impairs the custodial parent's ability to maintain adequate housing and provide other basic necessities for the child." Code § 20-108.2(G)(3)(c).
Here, the trial court's order specified father's visitation as follows:
[I]n odd years, the month of July and in even years, the month of August; every even year Thanksgiving for one week, or if the child is in school from the Wednesday before Thanksgiving Day until the Sunday immediately following Thanksgiving Day; every odd year Christmas and New Year break for two weeks, or if the school break is less than two weeks, from the child's release from school until the day before her return to school; every odd year Winter Break which period shall be defined by the school district in which the child resides;...
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