Summary
reversing and remanding custody decree where "the chancellor excluded evidence which may have been relevant to the determination of [the child's] best interests"
Summary of this case from Florio v. ClarkOpinion
44717 Record No. 832009.
November 30, 1984.
Present: All the Justices.
In child custody matter, father should have been permitted to introduce deposition evidence which might be used to impeach wife's testimony in hearing, the evidence being limited improperly by the Chancellor to that received at a hearing on temporary custody, that transpiring thereafter, and to the present situation, although the issue to be determined in the hearing at which the evidence was excluded was the child's best interests in the custody award.
(1) Domestic Relations — Child Custody — Pleading and Practice — Evidence — Temporary Disposition of Custody in Prior Decree Not Entitled to Conclusive Effect on Question of Child's Best Welfare in Custody Award.
(2) Domestic Relations — Child Custody — Pleading and Practice — Evidence — Proffer — Depositions — Rules of Court — [Use of Depositions in Court Proceedings, Rule 4:7(a)(2) and (3)] — Evidence Proffered Included Deposition Evidence Not in Record Which Could be Used to Impeach Mother's Testimony, Etc. and Should Have Been Admitted by Chancellor.
(3) Domestic Relations — Child Custody — Pleading and Practice — Evidence — Proffer — Depositions — Estoppel — October, 1982, Award of Custody Being Only Temporary, No Estoppel of Father From Questioning Whether Mother Was Proper Parent, and Chancellor Excluded Evidence Possibly Relevant to Child's Best Interests.
(4) Domestic Relations — Child Custody — Pleading and Practice — Evidence — Proffer — Remedy for Appropriate Relief Stated.
In this child custody matter, a divorce decree confirmed a temporary custody agreement made in 1980, pertaining to a minor child which agreement was then amended in 1981. The parties then resided in Williamsburg. The mother moved to Henrico County while the child was living with the father in Williamsburg pursuant to the amended agreement. The mother remarried and demanded return of the child. After further custody proceedings, an agreement was presented to the Court in the form of a consent decree entered 26 October 1982 providing for temporary joint custody with the parties to make a good faith effort to settle custody for the period following 27 August 1983. The parties returned to Court on this date having been unable to agree on custody. The wife then was able to limit testimony to the present situation and evidence transpiring since the last hearing on 15 October 1982 which preceded entry of the consent decree on 26 October 1982. The husband was permitted to proffer evidence including discovery depositions given by the mother in June and August, 1982, which the Chancellor excluded although these depositions might have been used to impeach the mother's testimony at the 1983 hearing. Custody of the child was awarded to the mother and the father appeals.
1. The October 1982 agreement and decree, constituting only a temporary and not a permanent disposition of custody, the agreement and decree were not entitled to conclusive effect on the question as to whose custody the welfare of the child would best be served, this being the paramount question before the Court at the August, 1983, hearing.
2. The evidence proffered by the father did not consist solely of evidence already in the record, since discovery depositions given by the mother in June and August, 1982 were included in this evidence. The Chancellor thus refused the father permission to introduce these depositions into evidence or to use them to impeach the mother's testimony at the August, 1983, hearing. This was error under Rule 4:7(a)(2) and (3).
3. The October 1982 disposition of custody was only temporary and could raise no estoppel of the father from questioning whether the mother was a proper parent. In limiting the scope of the August 1983 hearing, by not considering evidence previously introduced, the Chancellor excluded evidence possibly relevant to the child's best interests.
4. To obtain appropriate relief the Trial Court should reexamine the evidence already in the record as well as any new evidence the parents might submit relevant to the award of the child's custody. Keel v. Keel, 225 Va. 606, 303 S.E.2d 917 (1983), followed.
Appeal from a judgment of the Circuit Court of the City of Williamsburg and County of James City. Hon. Robert S. Wahab, Jr., judge designate presiding.
Reversed and remanded.
Harry J. Kostel (Jones, Blechman, Woltz Kelly, P.C., on briefs), for appellant.
Marged G. Harris (Stephens Harris, on brief), for appellee.
This is a custody dispute involving a six-year-old girl, Judith Page Armistead (Judith), the daughter of Robert Travis Armistead, Jr. (Travis), and Ruth Ann Foster Johnson Armistead (Ruth). Travis appeals from a decree awarding Judith's custody to Ruth.
Travis and Ruth were married March 20, 1976. Judith was born August 29, 1978. Travis and Ruth separated March 16, 1980, and were divorced by final decree entered September 3, 1981.
The decree confirmed a property settlement agreement dated December 5, 1980, and an amended agreement dated August 31, 1981. At the time the agreements were executed and on the date the decree was entered, the parties resided in Williamsburg.
Under the December 5, 1980 agreement, Ruth was given custody of Judith, with reasonable rights of visitation reserved to Travis. Under the amended agreement, Ruth would "retain custody" until she removed her domicile from Williamsburg, but, upon such removal, Travis would have custody for one month and then the parties would make a good faith effort to settle the custody question. If the settlement effort failed, the matter of custody would be decided by the trial court. Pending such decision, Judith would not be removed from the jurisdiction of the court and Travis would "retain custody . . . until changed by mutual agreement or Court Order."
About October 1, 1981, Ruth moved to Henrico County. Judith remained in Williamsburg with Travis, according to the terms of the August 31, 1981 amended agreement.
On December 23, 1981, Ruth married Charles Moore. She then wrote to Travis requesting that he return Judith to her by January 16, 1982, "at the very latest." When Travis refused, Ruth asked the trial court for a hearing, and the matter was set for June 10, 1982. Following a hearing on that date, the chancellor awarded Ruth temporary custody of Judith, with reasonable rights of visitation reserved to Travis. The chancellor directed the Henrico County Department of Social Services to monitor Ruth's "home situation" and ordered the parties to return to court the following October "for review of custody."
Travis filed a motion for rehearing, which the trial court granted. The matter was reheard on October 13, 14, and 15, 1982. While the hearing was in progress, the chancellor declared a recess, following which the parties advised the court that they had reached an agreement concerning custody. The agreement was presented to the court in the form of a consent decree, which was entered October 26, 1982.
The decree provided that Travis and Ruth would have joint custody of Judith and that the child's primary residence would be with Ruth from October 14 through October 29, 1982, with Travis from October 30 through December 31, with Ruth from January 1 through April 1, 1983, with Travis from April 2 through July 1, and with Ruth from July 2 through August 27. The decree provided further that the parties would make a good faith effort in June, 1983, "to settle the matter of the continuing custody arrangement for the period following August 27, 1983." The cause was continued "for further hearing" in the event the parties were unable to agree on Judith's future custody.
On August 23, 1983, the parties returned to court and advised the chancellor they had been unable to agree on Judith's custody. Counsel for Travis told the chancellor he had received information that Ruth planned to move to Louisiana, where her husband had accepted a teaching position, and that she wanted to take Judith with her for the school year, an arrangement which was unsatisfactory to Travis.
After the witnesses were sworn, Ruth's counsel moved to "limit the testimony to circumstances surrounding the child and the family environment at this time." Following argument, the chancellor granted Ruth's motion and ruled that the hearing would be limited to "[w]hat the present situation is and anything that has transpired since October 15, 1982," the date of the last hearing in the case.
Counsel for Travis then was permitted to make a proffer of what he would have submitted had the hearing not been limited. Several times during the proffer, Ruth's counsel interrupted and represented to the court that the matter proffered had been introduced in prior hearings. At one point, the chancellor observed that counsel for the parties were "in a better position than the Court to recall what is in the evidence" and appeared to agree with Ruth's counsel that Travis's proffer consisted of evidence already introduced.
Following the proffer, the chancellor proceeded to hear evidence limited to the period subsequent to the hearing of October, 1982. At the conclusion of the evidence and argument of counsel, the chancellor awarded Judith's custody to Ruth, with reasonable rights of visitation reserved to Travis. The award was embodied in the decree appealed from.
While Travis has assigned several errors, the determinative question, in our opinion, is whether the chancellor erred in limiting the evidence at the hearing on August 23, 1983. Travis argues that the limitation deprived him of relevant evidence on the crucial question of what custodial disposition would be in Judith's best interests.
Ruth argues, on the other hand, that a trial court may properly limit the evidence to "that which [is] relevant to the issues to be decided." Here, Ruth says, the chancellor concluded that no useful purpose would be served by "going over again events which had occurred prior to [the] ruling of October 15, 1982." In any event, Ruth maintains, the chancellor based his final decision on "the multitude of evidence" introduced in the earlier hearings as well as in the August, 1983 hearing.
In limiting the evidence at the August, 1983 hearing, the chancellor apparently accepted the argument Ruth then made that the October, 1982 agreement and decree "laid to rest once and for all" any question of her fitness as a parent. The October, 1982 agreement and decree, however, constituted only a temporary, and not a permanent, disposition of custody. Indeed, the arrangement was apparently regarded by the parties as a mere experiment, with which neither party was satisfied in the end. Hence, the October, 1982 agreement and decree were not entitled to conclusive effect on the paramount question before the court at the August, 1983 hearing, viz., in whose custody Judith's welfare would best be served.
Furthermore, we do not agree with the representation made to the chancellor by Ruth's counsel that Travis's proffer consisted solely of evidence already in the record. Counsel may have misspoken in this regard because part of what Travis proffered was contained in discovery depositions given by Ruth in June and August, 1982. These depositions had not been introduced into evidence previously; hence, Travis's proffer was not merely cumulative. Yet, because the depositions were given prior to the October, 1982 hearing, the chancellor refused Travis permission to introduce them into evidence in whole or in part or to use them to impeach Ruth's testimony at the August, 1983 hearing. This refusal clearly was erroneous. Rule 4:7(a)(2), (3); Horne v. Milgrim, 226 Va. 133, 138, 306 S.E.2d 893, 895 (1983).
Neither are we at all satisfied that Ruth is correct when she says the chancellor considered the evidence previously introduced in reaching his final decision in this case. Significantly, in an oral opinion delivered from the bench, the chancellor began his discussion with the hearing held October 13-15, 1982, and the agreement and decree which resulted from that hearing. He then developed the thesis that in the October, 1982 agreement and the other agreements involved in the case, Travis had recognized Ruth as "a proper parent" and had "persisted" in "this attitude." This, in our opinion, clearly indicates that the chancellor deemed the October, 1982 agreement and decree to have some sort of conclusive effect sufficient to estop Travis from questioning whether Ruth was "a proper parent."
As we have demonstrated previously, however, the October, 1982 disposition of custody was only temporary, at best. In such a situation, the doctrine of estoppel obviously is out of place.
We conclude, therefore, that in limiting the scope of the August, 1983 hearing, the chancellor excluded evidence which may have been relevant to the determination of Judith's best interests. Remaining is the question of appropriate relief.
In Keel v. Keel, 225 Va. 606, 613, 303 S.E.2d 917, 922 (1983), involving similar circumstances, we said:
It would serve no useful purpose for us to examine the evidence bit by bit to determine what was relevant and what was not. Suffice it to say that we are convinced from the record that the most appropriate action is for the trial court to reexamine all the evidence in light of this opinion.
Adapting Keel to fit the situation at hand, we hold that, upon remand, the chancellor should consider all the evidence already in the record as well as any new evidence the parties may submit relevant to the determination of Judith's best interests. Accordingly, we will reverse the decree appealed from and remand the case for further proceedings.
Reversed and remanded.