Turner v. Turner, 1311-85

• Decision Date: 02 September 1986
• Docket Number: No. 1311-85,1311-85
• Citation: 348 S.E.2d 21,3 Va.App. 31
• Parties: Roger Lee TURNER v. Anita Marie Whitmire TURNER a/k/a Anita Marie Peregory. Record
• Court: Virginia Court of Appeals

Page 21

348 S.E.2d 21

3 Va.App. 31

Roger Lee TURNER v. Anita Marie Whitmire TURNER a/k/a Anita Marie Peregory.

Record No. 1311-85.

Court of Appeals of Virginia.

Sept. 2, 1986.

Harry A. Bosen, Jr., Salem, for appellant.

Melissa E. Kane (Lawrence & Lumsden, Roanoke, on brief), for appellee.

Present: KOONTZ, C.J., and BENTON and DUFF, JJ.

KOONTZ, Chief Judge.

In this child custody case, the trial court granted a petition to transfer custody of a minor child from her father to her mother. The father raises two issues in this appeal: (1) whether there was a material change in circumstances so that the best interests of the child dictated that custody be transferred from the father to the mother, and (2) whether the trial court erred in allowing the mother to introduce evidence of circumstances which existed before the prior custody decrees. Finding no error, we affirm.

Roger and Anita Turner were divorced by a decree entered in the Circuit Court of Roanoke County on March 5, 1984, on the ground of a one year separation. Pursuant to a consent decree entered on February 3, 1983, custody of the child was granted to Anita. Subsequent to the divorce decree, custody investigations by the local department of social services were ordered, ore tenus hearings were held and by decrees entered on June 20, 1984, and January 10, 1985, custody was granted to Roger with visitation rights granted to Anita. On May 23, 1985, Anita again petitioned for custody. Another custody investigation was made by the local department of social services, psychological reports were obtained from three mental health professionals, ore tenus hearings were held and on October 1, 1985, the trial court granted custody to Anita. Roger appeals from that decree.

We first address the second issue raised by Roger in this appeal. In the prior hearings concerning custody, a different trial judge heard the evidence. The record clearly reflects that the trial judge concerned with Anita's last petition permitted her to present evidence of facts which were considered in the prior proceedings. This was done specifically as stated in the record to permit the trial judge to have some background information, "so I could understand the case better and could understand what the change of condition would be because if I didn't know what the condition was originally how was I going to know what the condition has changed to."

It is not contested that the trial courts retain jurisdiction to alter custody decrees under changed conditions to insure the best interests of children. Code § 20-108. Regrettably, because of the volume of these cases, it is not always practical or even possible for the same trial judge to preside over a case until a child reaches his or her majority and petitions for change in custody are rendered moot. For that reason, where a different trial judge is called upon to consider the evidence in support of and in opposition to a subsequent custody petition, consideration of evidence which establishes background information and permits the trial judge to understand the alleged change in circumstances is permissible. Such evidence, however, is not to be used to retry the issues resolved in the prior proceedings. Here that was not done, and accordingly, we find no error.

We now address the first issue as stated by the father of whether there was a material change in circumstances so that the best interests of the child "dictated" that custody be transferred from the father to the mother. More accurately stated: "The test that should have been applied has two prongs: first, has there been a change in circumstances since the most recent custody award; second, would a change in custody be in the best interests of the children." Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983). Roger argues that neither prong of the Keel test was met by Anita. On familiar principles we review the evidence in the light most favorable to Anita as the prevailing party below. See generally Simmons v. Simmons, 1 Va.App. 358, 361, 339 S.E.2d 198, 199 (1986); Box v. Talley, 1 Va.App. 289, 293, 338 S.E.2d 349, 351 (1986).

Anita's last petition for custody filed on May 23, 1985, alleged that she had remarried and this would give the child an "improved home situation." She further alleged that the child was unhappy and depressed having to live with Roger, that the father was not giving the child the care that she needs, that Roger does not maintain the necessary contact with the child's school, and finally, that "the father's ideas and philosophy are contrary to the proper rearing of a modern child." At trial and in her brief in this appeal, Anita abandoned some of these general allegations and primarily relied on evidence to establish that her marriage had stabilized, that the child had become more withdrawn since being with the father, that the child had stated a preference to live with her, and that two of the three psychologists recommend placement of the child with her.

We note at the outset of our review of the record to determine whether a "change in circumstances" referred to in the first prong of the Keel test had occurred, that the record clearly supports the finding of the trial judge that the child is of above average intelligence and is well cared for while in the custody of both parents. Neither parent is unfit or unwilling to properly care for the child. Roger maintains, therefore, that no change has occurred to support the granting of a change in custody. He reasons that Anita had remarried at the time of a prior hearing in which her petition was denied, that the child's stated preference to live with Anita is the result of "manipulating" by Anita, and that the psychological reports do not justify a change. More specifically, and in conflict with his stated position that the circumstances existing prior to the last petition should not be considered in the present proceeding, he alleges that after the separation and prior to the final divorce decree Anita had an affair with her present husband. He argues that their affair resulted in the denial of custody to her and that her remarriage cannot be used as a basis for a change in custody now. That allegation was not considered by the trial court and we decline to consider it now.

We are well aware of and confirm the reasons for giving stability to parents and children by declining to alter prior custody decrees without a showing of a material change in circumstances. It is clearly not in the best interests of children in these unfortunate circumstances to encourage repeated petitions for custody by noncustodial parents. However, as expressed by the Supreme Court in Andrews v. Geyer, 200 Va. 107, 111, 104 S.E.2d 747, 750-51 (1958):

It is indeed rare when a court can be positive, at the time, that its award will prove to be for the best interest of the child, which is the paramount question. The uncertainty involved is the reason for § 20-107, Code of Virginia 1950, which empowers the court to alter or change the custody of children, viewed in the light of subsequent events.

Where, as here, the noncustodial parent can show that a remarriage has stabilized, that the child has undergone changes and has expressed a preference in living with the noncustodial parent, the first prong of the Keel test has been met. Whether the second prong of that test has been met, however, involves more careful review.

We turn now to that review to address the issue of whether the change in custody to Anita would be in the best interests of the child as determined by the trial judge. This is conceded to be the most important part of the two-prong test. Keel, 225 Va. at 612, 303 S.E.2d at 921. Unquestionably, it is also the most...