Sargent v. Sargent

• Decision Date: 22 August 1995
• Docket Number: No. 1981-94-4,1981-94-4
• Citation: 460 S.E.2d 596,20 Va.App. 694
• Parties: Gary SARGENT v. Patricia Vaught SARGENT. Record
• Court: Virginia Court of Appeals

Page 596

460 S.E.2d 596

20 Va.App. 694

Gary SARGENT v. Patricia Vaught SARGENT.

Record No. 1981-94-4.

Court of Appeals of Virginia Alexandria.

Aug. 22, 1995.

Peter W. Buchbauer, Winchester (Douglas M. Swift, Jr.; James J. McGuire; Swift & Buchbauer, P.C., on briefs), for appellant.

Mark A. Vann, Winchester (Thomas J. Chasler; Chasler, Adrian and Bowman, P.L.C., on brief), for appellee.

Present: BENTON, COLEMAN and FITZPATRICK, JJ.

FITZPATRICK, Judge.

Gary Sargent (husband) appeals the trial court's decisions on custody, support, and grounds of divorce. He contends that the trial court erred in: (1) failing to give adequate consideration to the desire of the parties' son, Matthew, to live with his father and awarding custody of Matthew to Patricia Vaught Sargent (wife); (2) failing to impute income to wife in determining child and spousal support; (3) refusing to include an earned income tax credit and pendente lite spousal support in wife's income for purposes of computing child and spousal support; (4) awarding wife a divorce based on separation for more than one year; and (5) failing to consider wife's desertion when awarding spousal support. Finding no error, we affirm the trial court on all issues.

BACKGROUND

The parties were married on March 6, 1976. They had two children, Dustin, born August 16, 1981, and Matthew, born May 16, 1985. On July 9, 1993, wife filed for divorce on the ground of cruelty, and on July 12, 1993, she left the marital home. Husband filed for divorce on the ground of desertion on July 26, 1993. ¹

On July 27, 1993, the court appointed a guardian ad litem for the two children in connection with the divorce proceeding. The guardian filed a report on August 2, 1993 in anticipation of the pendente lite hearing scheduled for August 4, 1993, recommending that Dustin remain with his father and Matthew remain with his mother. In an August 11, 1993 pendente lite order, the court placed the children in the joint custody of the parties, with husband having primary care of Dustin and wife having primary care of Matthew. The August 11, 1993 order also provided for payment of temporary spousal and child support by husband.

At a July 29, 1994 final hearing, several witnesses, including wife, testified that Matthew preferred to live with his father. The guardian ad litem relied on her second, detailed report filed July 14, 1994, in which she stated:

[Matt] expressed the wish that he live with his father, and the guardian is under the impression that Matt feels that if he lives with him he will have more time to play with his cousins (who live nearby) and Dustin.

....

Despite Matt's verbalized preference, the guardian recommends that Matt remain in the physical custody of Mrs. Sargent. The guardian feels that Matt is doing well in her custody now and that many of Matt's reasons about living in his father's house can be addressed by expanding visitation, particularly in the summer. In addition, it is troubling to the guardian that Dustin harbors much resentment towards his mother, and the guardian feels that there is a chance that Matt could also formulate similar resentment if he lived primarily with Dustin and his father.

Wife testified that Matthew received good grades, A's and B's, and that her work schedule allowed her to spend considerable time with Matthew after school. She also noted that Dustin's grades were not as good, and she felt this was because his father did not spend enough time with him after school. Matthew's classroom aide and wife's sister testified that Matthew and his mother had a good relationship and that wife was a good mother to Matthew.

The parties stipulated that husband's current salary was $4,025 per month and wife's current salary was $754.96 per month. The evidence established that, when the parties first married in 1976, wife was a factory worker and earned over $11,600 in 1980. Wife has a high school education. Husband also worked in a factory full-time and attended college at night, obtaining his degree in about eight years. In 1983, at husband's request, wife stayed home to care for Dustin and the household. Except for a brief return to factory work, wife was a homemaker until 1990, when she became a teacher's aide at Matthew's school. As a teacher's aide, wife works 182 days per year, seven hours per day. At the hearing, husband testified that he believed that wife could earn $22,000 if she returned to the full-time factory work that she performed in the early years of the marriage. He also presented evidence showing that wife would be entitled to an earned income tax credit of $1434 if she had custody of Matthew. Wife testified that she felt it was in Matthew's best interests that she continue working as a teacher's aide and that a factory job would entail irregular hours and child care expenses.

In the divorce decree of July 29, 1994, the trial court: (1) awarded wife a divorce on the ground of separation for more than one year pursuant to Code § 20-91(9)(a); (2) allowed wife to retain physical custody of Matthew; (3) refused to impute additional income to wife when computing child and spousal support; and (4) awarded wife spousal support. Husband appeals each of these findings.

CUSTODY OF MATTHEW

Husband argues that the trial court erred in failing to consider adequately Matthew's preference to live with him. See Code § 20-124.3(7). We disagree.

Code § 20-124.2(B) requires that, "[i]n determining custody, the court shall give primary consideration to the best interests of the child." The court must consider the factors in Code § 20-124.3 in deciding what custody arrangement is in the child's best interests, including:

1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role which each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child's contact and relationship with the other parent, the relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in matters affecting the child;

7. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

8. Any history of family abuse as that term is defined in § 16.1-228; and

9. Such other factors as the court deems necessary and proper to the determination.

(Emphasis added). Although a child's preference "should be considered and given appropriate weight," it does not control the custody determination and is just one factor to be considered. Bailes v. Sours, 231 Va. 96, 99, 340 S.E.2d 824, 826 (1986). As long as the trial court examines 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).

In the divorce decree, the trial court stated: "[T]he Court has considered the factors set out in Section 20-124.3 of the Code of Virginia.... [Wife] has prevailed on Factors 3, 5 and 6. The Court is of the opinion that Matthew is not of sufficient age to express a preference." The court was presented with uncontroverted evidence from several sources that Matthew, who was nine at the time of the hearing, preferred to live with his father. The guardian ad litem recommended that Matthew remain in the physical custody of his mother after personally meeting with him on several occasions and determining his wish that he live with his father so that he could play with his brother and cousins more frequently. The trial court was fully apprised of the child's wishes but specifically found that Matthew was not of sufficient age to decide with whom he should live and that other factors favored the mother retaining custody. The record proved that Matthew was nine years of age. Moreover, the record contains evidence from which the trial judge could have concluded that factors 3, 5, and 6 outweighed other considerations. Matthew's preference to live with his father was but one consideration for the trial judge and did not control the determination of which placement would be in Matthew's best interests. We hold that the trial court properly considered the statutory factors and awarded custody of Matthew to wife.

SUPPORT

(1) IMPUTATION OF INCOME

Husband next argues that the trial court erred in refusing to impute income to wife when determining both child and spousal support. The trial court awarded wife child support based on the child support guidelines of Code § 20-108.2 and refused to impute additional income to wife in calculating the amount. The court also awarded wife spousal support after it considered all of the factors listed in Code § 20-107.1. We recognize that decisions concerning both child and spousal "support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence." Calvert v. Calvert, 18 Va.App. 781, 784, 447 S.E.2d 875, 876 (1994).

A trial court may impute income to the spouse receiving child or spousal support under appropriate circumstances. See Code § 20-108.1(B)(3) (child support); Srinivasan v. Srinivasan, 10 Va.App. 728, 734, 396 S.E.2d 675, 679 (1990) (spousal support). In child support case...