Vissicchio v. Vissicchio

• Court: Virginia Court of Appeals
• Writing for the Court: ANNUNZIATA.
• Citation: Vissicchio v. Vissicchio, 498 S.E.2d 425, 27 Va.App. 240 (Va. App. 1998)
• Decision Date: 28 April 1998
• Docket Number: Record No. 1038-97-3.
• Parties: Luigi David VISSICCHIO v. Melissa F. VISSICCHIO.

498 S.E.2d 425

27 Va. App. 240

Luigi David VISSICCHIO v. Melissa F. VISSICCHIO.

Record No. 1038-97-3.

Court of Appeals of Virginia, Alexandria.

April 28, 1998.

Glenn C. Lewis (Wendy H. Schwartz; Daniel G. Dannenbaum; The Lewis Law Firm, on briefs), Washington, DC, for appellant.

Martin A. Gannon, Alexandria (David H. Fletcher, Lexington; Gannon, Cottrell & Ward, P.C., Alexandria, on brief), for appellee.

Present: FITZPATRICK, C.J., and ANNUNZIATA and BUMGARDNER, JJ. ANNUNZIATA, Judge.

Luigi David Vissicchio (father) appeals the circuit court's divorce decree, claiming the court erred in awarding primary physical custody of Emma Alessandra Vissicchio (Emma) to Melissa F. Vissicchio (mother), in determining the visitation schedule, and in calculating child support. Mother cross-appeals, contending the court erred in refusing her request to reserve her right to seek future spousal support. We affirm on the issues of child custody, visitation, and child support, and reverse on the issue of the reservation of the right to seek future spousal support.

The parties married on July 3, 1993, and Emma was born on March 30, 1995. Emma lived with mother after the parties separated on November 7, 1995. The parties agreed that, during the period of separation, father would have Emma every other weekend and two nights during each week. Father filed for divorce on February 1, 1996.

In April 1996, father moved to New York. Mother filed a cross-bill on May 6, 1996. On July 10, 1996, the parties reached an agreement, which the court entered as a pendente lite order, that the parties would have joint legal custody and alternate holidays and that father would have visitation with Emma in New York from the second to the third Saturdays of each month.

Pursuant to agreement between the parties, the court appointed Dr. Stanton E. Samenow to evaluate the parties and recommend a custody arrangement. Dr. Samenow interviewed the parties and their families, conducted psychological testing, and reviewed documents relating to custody of Emma. Dr. Samenow recommended joint legal custody with primary physical custody with mother. Dr. Samenow recommended that father have visitation with Emma from the second Saturday to the third Saturday of each month and that the parties should alternate holidays.

After a hearing, the court stated, "I have, in fact, reviewed the appropriate sections of the Virginia Code and considered those things which the Code directs that I consider in reaching the conclusions which I have reached." The court found as a fact that father's income was $115,000 per year, that mother's income was $33,519 per year and that the cost of child care was $785 per month; the court directed the parties to calculate the appropriate child support under the guidelines. The court ordered that the parties would have joint legal custody, that father would have visitation from the second Saturday to the third Saturday of each month, and that the parties would alternate holidays.

I. Child Custody

Father's principal contention is that the trial court erred in awarding primary physical custody to wife. In issues of child custody, "the court's paramount concern is always the best interests of the child." Farley v. Farley, 9 Va.App. 326, 327-28, 387 S.E.2d 794, 795 (1990). A trial court's determination of a child's best interests "is reversible on appeal only for an abuse of that discretion, and a trial court's decision will not be set aside unless plainly wrong or without evidence to support it." Id. (citations omitted). In reviewing the decision of the trial court, we view the facts in the light most favorable to mother, the prevailing party below. Hughes v. Gentry, 18 Va.App. 318, 321-22, 443 S.E.2d 448, 451 (1994) (citing Peple v. Peple, 5 Va.App. 414, 422, 364 S.E.2d 232, 237 (1988)).

In determining the best interests of the child, the court must consider the factors enumerated in Code § 20-124.3. "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.'" Sargent v. Sargent, 20 Va.App. 694, 702, 460 S.E.2d 596, 599 (1995) (quoting Woolley v. Woolley, 3 Va.App. 337, 345, 349 S.E.2d 422, 426 (1986)). The court's findings, however, "must have some foundation based on the evidence presented." Woolley, 3 Va.App. at 345, 349 S.E.2d at 426.

A. Dr. Samenow's Report

Father's first argument in support of his contention that the court abused its discretion in awarding primary physical custody to mother is that Dr. Samenow's report was seriously flawed because Dr. Samenow did not spend sufficient time gathering facts and because he made "irrational" recommendations. The weight to be given to the opinion of an expert is a question for the trier of fact. Street v. Street, 25 Va.App. 380, 387, 488 S.E.2d 665, 668-69 (1997) (en banc). The court did not explicitly rely on Dr. Samenow's report, but its order substantially tracks Dr. Samenow's recommendations.

The court appointed Dr. Samenow to evaluate the parties upon the agreement of both parties. Dr. Samenow traveled to New York to conduct a home visit at father's home and interviewed six members of father's family whom father had identified as witnesses. He interviewed mother for roughly six and one-half hours and father for roughly seven and three quarters hours. Dr. Samenow conducted psychological tests on each party, reviewed roughly fifteen letters and court documents, and conducted phone interviews with the parties' friends, counselors, and family members. Dr. Samenow prepared a detailed twenty-page report summarizing his findings and recommendations. On the basis of his observations, Dr. Samenow concluded that primary physical custody with mother would be in Emma's best interests.

Father alleges that Dr. Samenow's report was "inadequate" because he only spent a few minutes discussing father's parenting abilities with each person he interviewed. The record shows that Dr. Samenow spent roughly three hours interviewing father's family, in addition to reading letters some members of the family submitted. He spent most of his interview with father's mother discussing father's relationship with Emma, but discussed other issues with other members of father's family, as appropriate. Furthermore, at the conclusion of his investigation, Dr. Samenow asked father if he should speak with anyone else and father responded in the negative. Although Dr. Samenow met with both counsel after presenting his report, neither party complained that Dr. Samenow had failed to undertake necessary investigation. Given the completeness of Dr. Samenow's investigation and report, the trial court was within its discretion in finding the report credible.

We find no merit in father's argument that Dr. Samenow's report is internally contradictory with respect to visitation. Father claims Dr. Samenow recommended that the parties have equal time with Emma in the summer, despite the fact that he made no such recommendation in his report. Father's contention is based on the testimony Dr. Samenow gave at trial. When father asked Dr. Samenow if alternating two-week periods would be appropriate, Dr. Samenow replied, "Perhaps during the summer something like that could be done." The trial court did not abuse its discretion when concluding that this minor concession neither superseded nor created an internal inconsistency in Dr. Samenow's opinion.

B. Mental Health of the Parties

Father's second argument in support of his claim that the trial court abused its discretion in awarding primary physical custody to mother is that the court failed to consider the mental health of the parties as required by Code § 20-124.3(2). Specifically, father alleges that mother has a history of emotional problems, alcohol abuse, and thoughts of suicide.

The evidence at trial showed that in the late 1980's, while mother was in college, mother's father suffered a debilitating stroke. In response to her father's stroke, mother withdrew from college for a short time and began drinking heavily. During this time, mother had some suicidal thoughts but did not entertain them seriously. After seeing a counselor, mother addressed her issues with alcohol, returned to school, and graduated on time. Mother was never diagnosed as alcohol-dependent or suicidal. Dr. Samenow testified that the interviews and testing which he conducted demonstrated "[n]o basis whatsoever" for father's allegations of continuing alcoholism and suicidal thoughts. The evidence supports the trial court's implicit finding that mother was neither suicidal nor alcoholic.

C. Home Environment

Father's third argument that the trial court erred in awarding primary custody to mother is that he offers a better home environment for Emma than mother. In determining the best interests of the child, the court must consider "[t]he relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, [and] the ability to accurately assess and meet the emotional, intellectual and physical needs of the child." Code § 20-124.3(3). In addition, the court must assess "[t]he 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." Code § 20-124.3(4). Specifically, father contends his relationship with Emma, his home life, and his day care plan are superior to those offered by mother.

In addressing the parties' relationships with Emma, Dr. Samenow testified that Emma has a strong relationship with both parties, but that the bond between Emma and mother was stronger than the bond between Emma and father. Dr. Samenow reasoned that mother had been Emma's primary caretaker and that father's move to New York had interposed a barrier in the relationship between father and Emma. Furthermore, Dr. Samenow...