Opinion
Record No. 0117-92-4
January 26, 1993
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY RAYNER V. SNEAD, JUDGE DESIGNATE
Timothy T. Szabo (Szabo, Quinto, Zelnick Erickson, on briefs), for appellant.
Douglas K. Bergere (Nichols, Bergere, Borinsky Zauzig, on brief), for appellee.
Present: Judges Coleman, Baker and Fitzpatrick
Argued at Alexandria, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The appellant, Freida L. Ridge, appeals the decision of the trial court granting custody of the parties' three minor children to the appellee, Henry W. Ridge, Jr., with liberal visitation rights granted to her. She contends that the trial court: (1) impermissibly considered the father's religion as a dispositive factor in awarding him custody of their children; (2) erred in finding that it was in the children's best interest that the custodial parent be allowed to move the children from Virginia; and (3) abused its discretion in meeting with the parties in chambers without counsel present. Finding no error, we affirm.
BACKGROUND
As counsel are familiar with the record, we recite only those facts necessary to a disposition of the issues before this Court. The parties were married in August 1970 in South Carolina. Shortly after the birth of their first child they moved to Virginia and lived here until approximately two months before the custody trial. At that time, the trial judge allowed the father to move to South Carolina with their three children.
In 1988, the parties began experiencing marital problems that resulted in a separation lasting from November 1988 through March 1989. During this separation, Mr. Ridge was hospitalized for depression for approximately one week. Dr. Tsitos, his treating physician, later found no recurrence of Mr. Ridge's symptoms that would impact on his ability to care for his children. Thereafter, the parties reconciled and lived together in the marital residence until January 1990, when after another argument with Mr. Ridge, Mrs. Ridge left.
Within days of the second separation Mrs. Ridge filed a petition in the juvenile and domestic relations district court requesting a custody hearing. Prior to the hearing date, Mr. Ridge filed a bill of complaint for divorce in the circuit court and was awarded pendente lite custody of all three children and exclusive use of the marital home. Mrs. Ridge was given alternate weekend visitation and one weekday evening. For the next eighteen months, the children continued to reside in the marital home with Mr. Ridge acting as the primary caretaker and Mrs. Ridge exercising her regular visitation.
Prior to trial, psychological evaluations were conducted of the oldest child (Beth) and both parties. In addition, a home study was prepared and a written report filed with the court. On the morning of trial, the court appointed a guardian ad litem to represent the interests of the children. The parties, numerous witnesses, and their three children testified during this four-day trial. By consent of the parties and counsel, the court held two interviews with the children in chambers with their guardian ad litem. All three children expressed a desire to live with their father. The recommendation of theguardian ad litem after hearing all the evidence in this case was that the mother be awarded custody.
Two psychologists also testified at the final custody hearing. Dr. Christopher Lane, a clinical psychologist who conducted an evaluation of Beth, and Dr. Burton Grodnitzky, a psychologist who performed evaluations of the parties. Dr. Lane testified concerning Beth's psychological health and addressed the issue of whether she had been unduly influenced by her father in making her stated preference to continue to live with him. Dr. Lane concluded that Beth had strong links to both parents and that she should have additional counseling to assist her in coping with the family break-up. However, Dr. Lane did not conclude that the father had exerted undue influence upon Beth in her decision making. Dr. Grodnitzky testified at trial that there were no serious psychological disturbances that would interfere with the ability of either party to be a custodial parent.
At the conclusion of all of the evidence, the court met with the parties in chambers without counsel present and with no objection voiced. On December 20, 1991, the trial judge entered a final order which incorporated the trial judge's earlier memorandum opinion, granting custody of the three children to Mr. Ridge with liberal visitation to Mrs. Ridge. In addition, the trial judge ordered continued counseling for the family, both individually and group and ordered both parents to share decision making regarding the children.
CONSIDERATION OF RELIGION
Mrs. Ridge contends that the trial judge gave undue weight to Mr. Ridge's religious beliefs in awarding him custody. She argues that Code § 20.107.2 does not list religion as one of the factors which a court should consider in determining the best interests of the children, and that the trial judge abused his discretion in addressing this issue. Mrs. Ridge concedes that she raised the issue of religion, but argues that her evidence was presented only to show Mr. Ridge's excessive religious zeal and its effect on her relationship with their children. She asserts that the trial judge's questioning of Mr. Ridge about sectarian religious issues was indicative of his overemphasis on the role of religion.
It is undisputed that this was a family in which their church and church activities historically played a large part. Mrs. Ridge acknowledged that the children have "quite a bit of contact" with their local pastor who is a family friend. There was evidence that the pastor and his wife accompanied the children and Mr. Ridge on two vacations to the Bahamas. Further, Dr. Lane indicated that Beth relies heavily upon the structure of the church, as well as evidence that Andrew is involved with activities at the church.
The trial judge's questions, while probing Mr. Ridge's religious involvement and attitude, were in response to the issues raised by Mrs. Ridge. We reject Mrs. Ridge's argument that the trial judge's questioning was indicative of the judge's predisposition toward a given result. She put in issue Mr. Ridge's mental stability as well as his over-involvement in his religion as being detrimental to the children's well being. The trial judge's questions followed up on those issues and were related to whether or not the father's close ties to his church would have a positive effect on the children who also had close ties to the church.
On appeal, we presume that a trial judge properly based his decision on the evidence presented, Mason v. Commonwealth, 219 Va. 1091, 1098, 254 S.E.2d 116, 120, cert. denied, 444 U.S. 919 (1979) and properly applied the law. Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977). Trial courts are vested with broad discretion in making the decisions necessary to guard and to foster a child's best interests. Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986). Although not specifically enumerated as a factor to consider under Code § 20.107.2, nothing prohibits a trial judge from evaluating any evidence of the past practices of a family in terms of continuity and stability. In examining the evidence and determining matters regarding a child's welfare, the trial court must consider all the evidence before it. Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986). Any customary activities of the parents and children are highly relevant in determining what is in the best interests of the children.
A trial court's determination of matters within its discretion is reversible on appeal only for an abuse of that discretion,M.E.D. v. J.P.M., 3 Va. App. 391, 398, 350 S.E.2d 215, 220 (1986), and a trial court's decision will not be set aside unless plainly wrong or without evidence to support it. Code § 8.01-680; City of Richmond v. Beltway Properties, Inc., 217 Va. 376, 379, 228 S.E.2d 569, 572 (1976).
The trial judge in his memorandum opinion resolved the disputed testimony concerning the father's behavior and found that:
he has in the opinion of this [c]ourt done an outstanding job in raising these three children. He has not only provided for their physical needs but their spiritual and moral nurturing through his efforts and his church which has proved to be a very strong support group for him and the children. He seeks the right and the [c]ourt grants that right to continue this role in the future.
The concluding language is not directed toward the religious training aspect, but toward the father's role as the primary caretaker. The evidence clearly showed that religion was not the dispositive issue, but rather was only addressed by the trial judge after being raised by Mrs. Ridge.
Mrs. Ridge's reliance on Lundeen v. Struminger, 209 Va. 548, 551, 165 S.E.2d 285, 287 (1969) is misplaced. In Lundeen, the Supreme Court of Virginia held that it is a violation of Section 58 of the Virginia Constitution for a trial court to decree that a child must be reared in a particular faith. In the case at bar, however, the trial court did not decree that the parties' children must be raised in any particular faith. Rather, the trial court determined that it was in the best interests of the children that Mr. Ridge be granted custody. We find no evidence in the record supporting Mrs. Ridge's assertion that the trial court "determin[ed] that the father's faith was more appropriate."
"For purposes of appellate review, a trial court's determination is considered to have settled all conflicts in the evidence in favor of the prevailing party, and the prevailing party's evidence is entitled to all reasonable inferences fairly deducible therefrom." Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990) (quoting Beltway Properties, 217 Va. at 379, 228 S.E.2d at 572). Where a trial court makes a determination which is adequately supported by the record, the determination must be affirmed. Id.
We find that there is ample evidence upon which the trial judge based his decision that the father was the better custodian of these children. He ruled after four days of disputed testimony that all the children had an excellent relationship with their father, while Beth and Andrew had a strained relationship with their mother. The children voiced a strong preference to remain with their father, who can arrange his schedule to be home both before and after school, and that since the last separation Mr. Ridge has played the more dominant role in the children's lives.
CUSTODIAL PARENT'S MOVE FROM THE COMMONWEALTH
Mrs. Ridge also argues that the trial judge erred in finding that it was in the best interest of the children to permit Mr. Ridge to move the family to South Carolina. As we held inScinaldi v. Scinaldi, 2 Va. App. 571, 573, 347 S.E.2d 149, 150 (1986):
The children's best interest is the criterion against which this decision must be measured. A court may forbid a custodial parent from removing a child from the state without the court's permission, Carpenter v. Carpenter, 220 Va. 299, 302, 257 S.E.2d 845, 848 (1979), or it may permit the child to be removed from the state. Gray v. Gray, 228 Va. 696, 698-99, 324 S.E.2d 677, 678 (1985); Simmons v. Simmons, 1 Va. App. 358, 364, 339 S.E.2d 198, 201 (1986). But in either instance the determination must be based on the 'child's best interest.' Gray, 228 Va. at 698, 324 S.E.2d at 678.
Id.
In making the determination that the move was in the best interests of the children, the trial judge properly considered: the specific needs of the children; the appropriate environment and pace of life that the parties contemplated as desirable for their children; the quality of the schools in the area of South Carolina where the family intended to relocate; the proximity of the maternal and paternal grandparents, both of whom live in South Carolina; the desire of the children to move; and the father's work schedule in that area which allowed him to be home with the children before and after school.
While a move from the Commonwealth would make Mrs. Ridge's visitation more difficult, this standing alone is not dispositive. The welfare of the children is the primary and paramount importance. See Durrette v. Durrette, 223 Va. 328, 331, 288 S.E.2d 432, 433 (1982). "The trial court's decision, when based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to support it." Simmons, 1 Va. App. at 361, 339 S.E.2d at 199 (1986). We conclude that the evidence considered by the trial judge provided a credible basis for his determination that the move was in the best interest of the children. We hold that this finding is not plainly wrong and is supported by the evidence in the record. Accordingly, we affirm.
We find no merit in Mrs. Ridge's argument that the trial judge failed to appropriately consider the factors required in Code § 20-107.2.
A trial court is presumed to have thoroughly weighed all the evidence, considered the statutory requirements, and made its determination based on the child's best interests. . . . Although a trial court may fail to specify and recite in its order all the possible reasons and adequate bases for its determination, where it is obvious from review of the record that the trial court's determination was made with the child's welfare as paramount, and it is clear that the decision is in the child's best interests, the determination is not without substantial, competent, and credible evidence to support it.
Farley, 9 Va. App at 329, 387 S.E.2d at 796 (citations omitted). We find that the memorandum opinion letter demonstrates a tracking of the statutory requirements and the court's findings are based on credible evidence in the record.
EXTRA-JUDICIAL MEETING IN CHAMBERS WITHOUT COUNSEL
Finally, Mrs. Ridge argues that the trial court abused its discretion by meeting with the parties after closing argument without counsel present. However, no objection to this meeting was made by counsel at the time of occurrence. Therefore, this issue has not been properly preserved for appeal pursuant to Rule 5A:18.
Rule 5A:18 required the appellant to state her objection "together with the grounds therefor at the time of the ruling . . ." Id. The purpose of the contemporaneous objection rule is to inform the trial judge of the action complained of in order to give the judge the opportunity to consider the issue and to take timely corrective action. See Robinson v. Commonwealth, 13 Va. App. 574, 413 S.E.2d 885 (1992). Because the appellant has failed to show good cause or that our consideration of this issue on appeal is necessary to "attain the ends of justice," we find that the appellant is barred from raising the issue.
Therefore, in accordance with this decision, we find that the trial court did not err and we therefore affirm.
Affirmed.