A.O.V. v. J.R.V., Record No. 0219-06-4 (Va. App. 2/27/2007)
| Decision Date | 27 February 2007 |
| Docket Number | Record No. 0219-06-4.,Record No. 0220-06-4. |
| Court | Virginia Court of Appeals |
| Parties | A.O.V. v. J.R.V. J.R.V. v. A.O.V. |
Appeal from the Circuit Court of the City of Alexandria, John E. Kloch, Judge.
James Ray Cottrell (Kyle F. Bartol; John K. Cottrell; Benjamin W. Bull; Glen Lavy; Dale Schowengerdt; Gannon & Cottrell, P.C.; Alliance Defense Fund, on briefs), for A.O.V.
David D. Masterman; Gregory R. Nevins (Masterman & Graham; Lambda Legal Defense and Education Fund, Inc., on briefs), for J.R.V.
Present: Judges Benton, Haley and Senior Judge Annunziata.
Both parents appeal from the trial judge's decision in this domestic relations proceeding. A.O.V., the mother, contends the trial judge erred (1) in granting joint custody of their children and not prohibiting J.R.V., the father, from exposing the children to his homosexual lifestyle, (2) by not requiring the father to pay more of the daughter's private school tuition or more of the children's transportation costs for visitation, and (3) in not awarding the mother sufficient spousal support, limiting it to a defined duration, and refusing to grant a reservation for spousal support. In his appeal, the father contends the trial judge improperly imposed restrictions on his visitation with the children.
Because the two cases involve similar factual and legal issues, we consolidated the appeals for purposes of oral argument and for the purposes of this decision. We hold the trial judge erred by failing to grant the mother a reservation for spousal support. We also hold that the record demonstrates no error concerning the other issues raised on appeal.
The parties were married in 1987. During the marriage, the mother, a former teacher, remained at home to manage the household and care for the three children, born in 1992, 1998, and 1999. The father's military career required the family to move often throughout the years. Prior to their separation in 2004, the family lived together in a house in Stafford, Virginia. Upon their separation, the mother moved with the children to South Carolina to live with her sister.
The divorce suit stemmed primarily from a separation and the father's homosexuality. The evidence proved the father had affairs before the separation. The father testified that he met his current paramour in May of 2004 and that he and the man are an exclusive couple. They share rent at their house, utilities, and grocery costs.
A judge of the circuit court entered a pendente lite decree ordering the father to pay $2,131 a month in spousal support. The judge also entered a pendente lite order giving the mother primary custody of the children and the father custody on certain dates. The order provided that "for weekends and long weekends" the children would travel by air unless the parties otherwise agreed. For longer periods, the parties would share the driving. The parties would share travel costs equally, except the mother's expenditure was capped at $2,000 a year. In addition, the order prohibited the father from having his companion spend the night during visitations, engaging in public displays of affection in the children's presence, leaving the children in his companion's care, and discussing sexuality issues with the children.
After an evidentiary hearing on all the issues, the trial judge reviewed the factors under Code § 20-124.3, found the father to be a fit father, and further found he has a good relationship with the children. Specifically, he found the children were still young and needed both parents; both parents were physically and mentally fit; and positive relationships existed between each parent and the children. Additionally, the judge considered the children's needs to have relationships with both of their extended families; the propensity and interests of both parents to participate in the children's upbringings; and "the propensity of each parent to actively support the children's contact relationship with the other parent." The trial judge awarded the parties joint custody of the children, with primary custody to the mother.
The trial judge awarded the father visitation one weekend a month, some holidays, and four weeks in the summer. He continued two of the limitations imposed on visitation in the pendente lite order. That is, that the father cannot have any companion with whom he has a romantic relationship stay overnight (between midnight and 6:00 a.m.) or demonstrate affection with third parties in the presence of the children.
Reviewing the factors in Code § 20-107.1, the trial judge awarded the mother $2,000 a month in spousal support for the duration of eight years. He specifically addressed each of the statutory factors and based the award on his determination of the application of these factors to the facts he found in this case. The trial judge found that the term of eight years for spousal support was appropriate "in view of the duration of the marriage; in view of the fact that after eight years, one of the children and two of the other children will either be at or near majority, and no longer will demand the time and effort of [the mother]." He noted that "[g]iven [the mother's] background, her training, her educational experience and her work experience, by that time she should be able to be economically self-sufficient." The judge also added he was taking into account the parties' settlement agreement that provides the mother will receive a portion of the father's retirement for the duration of her life.
The trial judge calculated the father's monthly income as $9,983, because some of his income was not subject to income tax. He awarded $1,799 a month for child support. Regarding the oldest daughter's education, the trial judge found she was progressing better in private school than she had in public school. In his view, she would benefit by continuing with private schooling for the near future. Thus, he deviated from the child support guidelines to award an additional $200 a month for her education expenses. He ruled the father would not be entirely responsible for the cost because it might be a temporary situation and because it had not been the father's decision to send the daughter to private school.
The trial judge ordered the father to pay 60% of any airline costs for the children's "regular visitation" with him and the mother to pay the remaining 40%. For short visits when the parties chose to drive the children, they would share the driving by half. For visits for more than three days, either the parties would share the driving or the father would bear the whole cost of airfare for the children.
The trial judge entered a final decree of divorce based on the parties living apart during a one-year separation. The final decree affirmed and incorporated a partial settlement agreement concerning the parties' property, and it contained the judge's rulings on custody, visitation, and support.
The mother contends the trial judge erred by not granting her sole custody of the children and by not prohibiting the father from exposing the children to his homosexual lifestyle. She argues she should have received sole custody of the children due to the father's cohabitation with his homosexual lover, his actions which "led directly to the destruction of this family unit," his placement of his own desires over his children's welfare, the negative effects his homosexuality has had on the children, and the parties' inability to communicate. The father responds that Virginia has no per se rule mandating denial of custody due to homosexuality, that no evidence demonstrated his homosexuality had an adverse effect on the children, and that the evidence demonstrated he was a loving father. Thus, he asserts the trial judge did not err in decreeing joint custody.
The father appeals, however, the imposition of visitation restrictions and contends the trial judge erred by considering his homosexuality when placing restrictions on his visitation with the children. The mother responds that the trial judge's restrictions would be required whether the father was homosexual or heterosexual.
In determining child custody, a trial judge must "give primary consideration to the best interest of the child[ren]." Code § 20-124.2(B). The standard of review for child custody and visitation issues is well-settled:
The authority vested in a trial court to decide issues concerning the care, custody, support and maintenance of the minor children, the visitation rights of the non-custodial parent, and the extent to which those rights and responsibilities shall be apportioned between estranged parents is a matter of judicial discretion which courts must exercise with the welfare of the children as the paramount consideration.
Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986).
Homosexuality by itself does not render a parent unfit. Doe v. Doe, 222 Va. 736, 746-48, 284 S.E.2d 799, 805-06 (1981) (). The Supreme Court has held, however, that a parent's "illicit relationship" conducted in the presence of a child is a factor for the trial judge to consider.
In all custody cases . . . , the court must decide by considering all the facts, including what effect a nonmarital relationship by a parent has on the child. . . . An illicit relationship to which minor children are exposed cannot be condoned. Such a relationship must necessarily be given the most careful consideration in a custody proceeding.
Brown v. Brown, 218 Va. 196, 199, 237 S.E.2d 89, 91 (1977). The application of these factors on the custody determination requires a brief review of several decisions.
In Brown, evidence proved the mother's relationship with her lover adversely impacted the children. 218...
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