From Casetext: Smarter Legal Research

Flinchum v. Flinchum, Sr.

Court of Appeals of Virginia. Salem
Jun 22, 1993
Record No. 0583-92-3 (Va. Ct. App. Jun. 22, 1993)

Opinion

Record No. 0583-92-3

June 22, 1993

FROM THE CIRCUIT COURT OF ROANOKE COUNTY G. O. CLEMENS, JUDGE.

Harlin Perrine for appellant.

John S. Huntington for appellee.

Present: Judges Baker, Benton and Coleman.

Argued at Salem, Virginia.


MEMORANDUM OPINION

Pursuant to Code § 17-116.010 this opinion is not designated for publication.


The sole issue presented by this appeal is whether the Circuit Court of Roanoke County (trial court) erred when it entered a decree changing custody of two minor children from appellant (mother) to appellee (father).

As the parties are familiar with the proceedings and evidence presented to the trial court, we recite only those facts essential to an understanding of this opinion. We review the evidence to determine whether it is sufficient to support the trial court's judgment. Finding no error, we affirm the judgment of the trial court.

The parties married on December 1, 1979. They separated on November 18, 1983. Two children were born to the parties, a daughter born March 9, 1979, and a son born March 20, 1983. In 1984, the parties entered into a separation agreement that was subsequently incorporated in a divorce decree entered in March 1985. Based on the agreement, custody of the children was awarded to mother.

On February 2, 1991, a hearing was held pursuant to father's request that the children be transferred to his custody. Notwithstanding some unfavorable evidence presented against mother, and a Department of Social Services recommendation that custody of the children be awarded to father, the trial court denied father's request. However, the trial court admonished mother that if she continued to fail to pay rent due for the children's place of residence, continued moving from place to place, refused to obtain a telephone and provide father with its number, and if the children were frequently late to school and/or missed classes, it would further consider father's request to have custody of the children awarded to father.

On March 9, 1992, another hearing was held concerning custody of the children. Father testified that mother had not responded to the trial court's admonishment. Mother did not offer any evidence, but in open court exclaimed:

I'm not going to fight this any longer. If this is going to continue this is not healthy for the children. If it is in the best interest that they go with the father and he has bonded to them and he can handle them so be it. They cannot take this. They need to be stabilized.

Based on his observation of the parties during the multiple hearings, the testimony presented by father, and mother's statement, the trial court orally ordered that effective at the end of the school year custody be transferred to father. Mother protested: "He can take the children, why prolong this?"

When mother failed to cooperate with the trial court's attempt to arrange reasonable visitation rights, the trial judge brought the children into the courtroom to tell them that his original decision had been for them to finish the school year and then live with their father, but that their mother had told him that if he was going to change custody, he should do it immediately. Following this discussion, the trial judge directed an immediate change of custody. Mother then protested that she would like to have the change delayed "until the summer." On March 26, 1992, at the request of counsel for mother, the trial court stayed execution of its order pending this appeal.

The trial court concluded that it would be in the best interest of the children to transfer custody to father. The trial court's order was based on the following findings: that while in custody of mother the children were, without explanation, frequently absent and/or late arriving at school; that while in mother's custody they lacked stability and security; that mother attempted to interfere with the love and affection between the children and their father; and that mother intentionally and repeatedly impeded father's visitation with the children. The trial court's order was consistent with the recommendation of the Department of Social Services.

"'Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where . . . the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.'" Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988) (quoting Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)). We cannot say that the judgment of the trial court was plainly wrong.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.


Summaries of

Flinchum v. Flinchum, Sr.

Court of Appeals of Virginia. Salem
Jun 22, 1993
Record No. 0583-92-3 (Va. Ct. App. Jun. 22, 1993)
Case details for

Flinchum v. Flinchum, Sr.

Case Details

Full title:CHERYL RAMONA DILLON FLINCHUM v. RUFUS EUGENE FLINCHUM, SR

Court:Court of Appeals of Virginia. Salem

Date published: Jun 22, 1993

Citations

Record No. 0583-92-3 (Va. Ct. App. Jun. 22, 1993)