Opinion
Record No. 0870-93-1
December 7, 1993
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH J. B. FRIEDMAN, JUDGE.
(Robert F. Hagans, Jr., on brief), for appellant.
(Geoffrey S. Gavett; Gavett and Datt, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Claude L. Lewis (father) appeals the decision of the circuit court granting sole custody of his son to Phyllis A. Lewis (mother). Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Father raises one issue on appeal: whether the circuit court erred in awarding sole custody of the couple's son to mother when there was evidence that mother had committed adultery in and out of the son's presence.
On appeal, we construe the evidence in the light most favorable to the prevailing party, granting that party "all inferences fairly deducible therefrom." McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990) (citation omitted). Evidence in this matter was heard by a commissioner in chancery. "The commissioner's report is deemed to be prima facie correct."Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990) (citation omitted). "The decree confirming the commissioner's report is presumed to be correct and will not be disturbed if it is reasonably supported by substantial, competent, and credible evidence." Brawand v. Brawand, 1 Va. App. 305, 308, 338 S.E.2d 651, 652 (1986) (citation omitted).
In this case, as in all custody cases, "the controlling consideration is always the child's welfare and, in determining the best interest of the child, the trial court must consider all the facts." Sutherland v. Sutherland, 14 Va. App. 42, 43-44, 414 S.E.2d 617, 618 (1992). While "[a]n illicit relationship to which minor children are exposed cannot be condoned,"Brown v. Brown, 218 Va. 196, 199, 237 S.E.2d 89, 91 (1977), there is not a "per se rule prohibiting awarding custody to a parent involved in an adulterous relationship." Ford v. Ford, 14 Va. App. 551, 555, 419 S.E.2d 415, 417 (1992).
The commissioner determined that custody should remain with mother. The record indicated that the child was well-established in his current school. He was enrolled in the school's talented and gifted program and was active in recreational activities. When asked, the child stated that he preferred to live with his mother and visit with his father.
While father was awarded a divorce on the basis of desertion and adultery, the evidence indicated that both father and mother were abiding by the trial court's decree prohibiting overnight guests who were not relatives while the child was present. In addition, both parents were purportedly planning to marry their respective companions. Thus, this was not an instance where the child was being exposed to a parent's illicit relationship in such a way that it raised questions concerning the home's moral climate. See, e.g., Ford, 14 Va. App. at 555, 419 S.E.2d at 417.
The trial court's decision that the child's best interests were served by awarding custody to mother was based upon substantial evidence and was not an abuse of the court's discretion.
Accordingly, the decision of the trial court is affirmed.
Affirmed.