Wilson v. Wilson

• Decision Date: 27 August 1991
• Docket Number: No. 1978-90-3,1978-90-3
• Parties: Debra WILSON v. William Daryl WILSON. Record
• Court: Virginia Court of Appeals

Page 576

408 S.E.2d 576

12 Va.App. 1251

Debra WILSON v. William Daryl WILSON.

Record No. 1978-90-3.

Court of Appeals of Virginia.

Aug. 27, 1991.

Peter Curcio (G. Walter Bressler, Bressler, Curcio & Stout, Bristol, on briefs), for appellant.

Daniel H. Caldwell, Bristol (Randall A. Eads, Abingdon, Penn, Stuart, Eskridge & Jones, Bristol, on brief), for appellee.

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

WILLIS, Judge.

The appellant, Debra Wilson, contends (1) that the trial court failed to consider her son's best interests when it granted joint custody and the resumption of unsupervised visitation to his father, Daryl Wilson, the appellee; (2) that the trial court erred when it decreed that the primary custodial roles would be reversed automatically if the appellant moved again; and (3) that the trial court erred in holding Mr. Wilson's appeal of the juvenile and domestic relations district court's order timely. We affirm on issue (3), but reverse on issues (1) and (2).

The parties' son was born in 1981. When he was four years old, the parties separated, and they were divorced in 1985 in the Circuit Court of Washington County, Virginia. The divorce decree incorporated a separation agreement between the parties, whereby they were granted joint custody of their son, and Mrs. Wilson assumed the role of primary physical custodian. She became concerned about certain practices that occurred when the son visited his father and paternal grandparents. At the age of seven, the son was regularly fed by his father with a baby bottle, took showers with his father, slept with his father, and his father would clean him after he had a bowel movement. Mr. Wilson admitted these practices. Mrs. Wilson took the son to Dr. Ramsden, a clinical psychologist, who reported this as child abuse. Mrs. Wilson and Dr. Ramsden made other allegations against Mr. Wilson, but he denied those accusations and the evidence concerning them was conflicting.

In January, 1989, Mr. and Mrs. Wilson each petitioned the juvenile and domestic relations district court for sole custody of their son. That court ordered that all parties submit to psychological evaluation by Dr. Schact. Pending a further hearing, the court ordered both parents to abide by visitation provisions recommended by Dr. Schact. These specified that there be no overnight visits by the son with his father, that the son be in charge of his own body, that he feed himself without the use of baby bottles, and that he sleep in his own bed. The juvenile and domestic relations district court made these rules part of a temporary visitation order.

Dr. Schact filed a complete report on February 10, 1989. On March 7, 1989, after two days of hearing evidence, the juvenile and domestic relations district court denied both parties' requests for sole custody and continued the limitations on Mr. Wilson's visitation. These included the requirements that the appellee not feed the son with a baby bottle, that the son be in charge of his own body for bathing and cleaning purposes, and that the son sleep in his own bed. The court ordered a review in ninety days, stating that this was a temporary order as to visitation, but expressly providing in its order that the decision denying the parties' petitions for sole custody was final.

At the ninety day review hearing, June 2, 1989, the juvenile and domestic relations district court granted Mrs. Wilson's motion for leave to move the child's residence to Nashville, Tennessee. The court reestablished liberal visitation between the son and his father, but continued the injunction restraining Mr. Wilson from engaging in the practices which the court had earlier ordered stopped. Mr. Wilson appealed this order to the circuit court.

In May, 1990, the juvenile and domestic relations district court held Mr. Wilson in contempt, finding that he had violated its March 7, 1989 order by continuing to engage in the practices concerning the son which he had been ordered to cease. The juvenile and domestic relations district court terminated Mr. Wilson's visitation and directed him to undergo counseling. He appealed the contempt finding to the circuit court and this appeal was consolidated with his appeal of the June 2, 1989 order.

On November 8, 1990, the circuit court entered the order to which this appeal is addressed. It continued joint custody in the parties, provided that Mr. Wilson should have liberal unsupervised visitation, but continued the injunction against his engaging in the prohibited practices. It also found that Mr. Wilson was in contempt of the juvenile and domestic relations district court's orders for continuing the enjoined practices, but deferred sentencing on this judgment. The trial court further authorized Mrs. Wilson's move with the son to Nashville, Tennessee, but ordered that should she move from that location, primary custody of the son would automatically transfer to Mr. Wilson.

Mrs. Wilson first contends that the trial court erred in granting joint custody and unsupervised visitation. On appeal, we consider the evidence in the light most favorable to the party prevailing below, and will reverse only if the decree is plainly wrong or is without evidence to support it. See Simmons v. Simmons, 1 Va.App. 358, 361, 339 S.E.2d 198, 199 (1986). We find that the trial court abused its discretion and we reverse.

In cases concerning custody and visitation, the best interests of the child are paramount. M.E.D. v. J.P.M., 3 Va.App. 391, 396, 350 S.E.2d 215, 219 (1986). The trial court granted Mr. Wilson liberal unsupervised visitation while at the same time holding...