Wiencko v. Takayama, Record No. 2078–12–4.

• Decision Date: 23 July 2013
• Docket Number: Record No. 2078–12–4.
• Court: Virginia Court of Appeals
• Parties: Joseph A. WIENCKO, Jr. v. Akemi TAKAYAMA.

62 Va.App. 217

745 S.E.2d 168

Joseph A. WIENCKO, Jr.

v.Akemi TAKAYAMA.

Record No. 2078–12–4.

Court of Appeals of Virginia, Alexandria.

July 23, 2013.

Marilyn Ann Solomon, Winchester, (Thomas W. Ashton, Richmond; Gerardo M. Delgado; Law Firm of Marilyn Solomon and Associates, on brief), for appellant.

Peter W. Buchbauer (Buchbauer and McGuire, P.C., Winchester, on brief), for appellee.

Present: ALSTON, McCULLOUGH and HUFF, JJ.

McCULLOUGH, Judge.

Joseph A. Wiencko, Jr., father, assigns four errors in connection with his divorce and custody proceedings. He argues (1) the trial court violated his rights under the Equal Protection Clause of the United States Constitution when it awarded custody to mother “based primarily upon Father's decision to stay home and raise the children rather than focus on employment,” (2) the court abused its discretion “in awarding Father the vast majority of the marital debt, while awarding Mother nearly all of the marital assets,” (3) the court abused its discretion “in relying upon the report of the Guardian ad Litem, and in eventually accepting wholesale her recommendations as to custody and visitation, when the Guardian ad Litem failed to do a thorough investigation and submitted said report and recommendation without even meeting with the children which were the subject of the custody and visitation dispute,” and (4) the court abused its discretion “in failing to prohibit the Mother from all international travel with the children, instead of limiting its prohibition to just Japan, because she can get the children to Japan by going through another country.”

BACKGROUND

Father and mother were married on August 21, 1999. They separated in June of 2011. Mother and father have four boys: the eldest was born in 2000, followed by twins born in 2002, and finally the youngest, who was born in 2004.

I. Custody of the children

The evidence established that both father and mother were loving parents who were very devoted to their children. The court indicated in its finding of facts and conclusions of law that “[b]oth parents are very concerned about the welfare of their children, and both appear to be sincerely motivated to do what they each perceive is in the children's best interests.” At the time of the relevant custody hearings, the children were doing very well in school and were actively engaged in activities such as the Boy Scouts.

The court heard testimony from mother and father and from several of their friends. Since 2004, father has assumed a greater role in caring for the children, a role that only grew more significant with the loss of his employment in 2009.

Dr. Bernard J. Lewis prepared a detailed parental capacity evaluation for each parent. He wrote that mother “presented as a very bright, emotionally sensitive, and psychologically healthy individual.” In contrast, Dr. Lewis concluded father's answers suggested he possesses “certain narcissistic quality.” Dr. Lewis further stated in his report that “[t]here is clear and substantial evidence from the interviews with the boys that [father] has provided them with considerable inappropriate information which undermines [mother's] parental authority with the boys and their respect for her as a parent.” Finally, Dr. Lewis's report stated that father's “rigid, inflexible style likely results in a ‘one size fits all’ approach to parenting. This was apparent from his descriptions of his children and his focus on their intellectual and academic abilities with little regard to their social or behavioral development.” At trial, Dr. Lewis testified that, during the evaluations, father came across “as very rigid, inflexible, insensitive, and self-centered.” In his view, father was “just focused on [the children's] academics ... and relatively blind to any other issues or problems with them.” Dr. Lewis formed a “strong opinion that [mother] is the better parent” with regard to assessing and meeting the emotional, intellectual, and physical needs of the children.

The guardian ad litem recommended that sole legal and physical custody be awarded to mother. The guardian ad litem

acknowledge[d] Father's devotion to his children and his role these past few years as a “stay at home dad.” However, the guardian ad litem strongly believes that this role was not assumed just because of Mother's career, but because of Father's inability to obtain employment and/or his unwillingness to compromise on some “must haves” for his desired employment situation.

Mother, a professional violinist, worked throughout the marriage, teaching music and occasionally traveling out of town to perform. Father holds a master's degree in mechanical engineering. Initially, he worked from home as a consultant to the telecommunications industry. For a time, he earned a very comfortable living. For example, in 2004, father earned $197,600. Gradually, the contracts began to diminish. In 2008, he earned $93,689. In 2009, father's lone remaining client did not renew his consulting contract, and father has been unemployed since that time. He did not seek further employment. Instead, father devoted himself to taking care of the children and the household, becoming, in his own words, “Mr. Mom.” The loss of father's substantial income after 2009 required him to make significant withdrawals from his retirement accounts to maintain the household.

The trial court issued a detailed written opinion analyzing the statutory custody factors found in Code § 20–124.3. The court noted that mother “is psychologically best suited to be the primary custodian of the children, and she has the present ability to provide an independent household for the family, whereas the father does not.” In discussing “[t]he role which each parent has played and will play in the future, in the upbringing and care of the child,” the court specifically acknowledged father's extensive role in raising the children, including preparing meals, taking care of laundry, and running errands, as well as his loving relationshipwith the children. The court observed, however, that father “unilaterally decided to become a stay at home Father” after he lost his consulting contract. In addressing the circumstances that led to the dissolution of the marriage, the court wrote that

the catalyst for the final breakup of the marital relationship was the Husband's loss of employment. In his late 40's and confronted by the loss of his lucrative employment, the Husband understandably became depressed. Rather than shouldering the burden of seeking new employment, he elected to withdraw into the home and devote himself to his children. This was basically a retreat from reality.

Later, in the context of discussing the role each parent has played in the upbringing and care of the children, the court made the following observations:

As previously noted, after losing his employment in 2009, the Father withdrew from the adult world of employment. His obsession with his children's intellectual and personal development is a product of his withdrawal from the world of adults. Parenting requires balancing, and the Father has lost his sense of parental perspective with respect to his role as a Father. While he has commendably engaged his children in a wide range of activities designed to develop their intellectual, social, and spiritual life, he has totally abrogated his responsibility to physically provide for his family. He has returned to his childhood and become actively engaged in children's activities like scouting and recreation. He took them to a variety of amusement parks. These are salutary and commendable activities provided that you have the money to fund them.

If granted custody, the Father plans to return to his childhood home in Herndon to live with his mother, thereby completing his retreat from the adult world.

Mother, on the other hand, “would remain in the Winchester area to maintain consistency and routine in the children's lives.” The court also found that she “is willing to make adjustments to her work schedule to be more available for her children.”

The court ordered joint legal and physical custody with primary physical custody going to mother. The court further established a detailed visitation schedule for father that included the first, third, and fifth weekends of every month, as well as weekday evening visitation on Tuesdays and Thursdays and summer visitation for up to six weeks.

Father objected to the custody award. He filed a motion to reconsider in which he argued that “the Court violated his 14th Amendment right to Equal Protection under the Constitution when it granted custody of the children to the mother on the basis that he left his job to be a stay-at-home dad and raise the children.” The court denied the motion to reconsider.

II. Equitable distribution

The principal marital assets consisted of a home with an outstanding note of approximately $400,000 and little to no equity, a violin bow, several automobiles and household furnishings, and retirement accounts from mother's employers with a marital share worth approximately $68,000. Father had largely depleted the marital share of his retirement accounts and little was left in those accounts. Father still had over $270,000 in retirement accounts that were his separate property. Credit cards in father's name had an outstanding balance of approximately $37,000.

The court wrote a memorandum opinion in which it thoroughly reviewed the evidence and addressed each of the Code § 20–107.3 factors. Among other things, the court acknowledged father's significant financial contributions to the marriage, including father's contribution of $40,000 of his separate property to satisfy a judgment against mother and his contribution of $200,000 of father's separate property toward the purchase of the home. The court also made note of the fact that, at a time when mother was embroiled in litigation, he purchased mother's violin bow at a cost of $16,000 and later...