Opinion
Record No. 1471-93-1
March 8, 1994
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK LEONARD B. SACHS, JUDGE.
(B. Thomas Reed, on brief), for appellant.
(Richard A. Monteith; Monteith Harding, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Shawn Ra/Mon Shepard (father) appeals the decision of the trial court awarding permanent custody of the couple's son to April Dawnette Shepard (mother). Father sought an order re-referring this matter to a commissioner in order to obtain additional evidence, alleging perjury by mother in earlier hearings. 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 two issues on appeal: (1) whether the trial court applied the proper standard in its review of the commissioner's report; and (2) whether the trial court erred by refusing to grant father's motion to conduct an additional hearing, in light of proffered evidence of mother's perjury.
On appeal, the judgment of the trial court is presumed correct. "The burden is on the party who alleges reversible error to show by the record that reversal is the remedy to which he is entitled." Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991) (citation omitted).
I.
Father has failed to demonstrate error by the trial court in its review of the commissioner's report. As noted below, the trial court found father's allegations, even if true, to be immaterial to his decision awarding mother custody of the child.
Moreover, the standard of review articulated by the trial judge properly noted that, while the commissioner was the finder of fact, the trial judge retained authority to decide all questions of law and to overrule the commissioner's report if the evidence in the record did not support her conclusions.
While the report of a commissioner in chancery does not carry the weight of a jury's verdict, it should be sustained unless the trial court concludes that the commissioner's findings are not supported by the evidence. This rule applies with particular force to a commissioner's findings of fact based upon evidence taken in his presence.
Goetz v. Goetz, 7 Va. App. 50, 53, 371 S.E.2d 567, 568 (1988) (citations omitted).
Therefore, father has not demonstrated either error or an abuse of discretion by the trial court in its review of the commissioner's report.
II.
The trial judge ruled that the alleged misrepresentations by mother to the court, even if true, "would not be material to my decision" awarding mother custody of the child. Instead, the judge noted that "[t]here is a lot to concern me in this case . . . and that is the violence between you and your wife which is on the record. . . ."
In custody disputes, "the best interests of the child are paramount and form the lodestar for the guidance of the court in determining the dispute." Ferris v. Underwood, 3 Va. App. 25, 28, 348 S.E.2d 18, 19 (1986) (quoting Walker v. Brooks, 203 Va. 417, 421, 124 S.E.2d 195, 196 (1962)). The trial judge reviewed the allegations against mother in the light most favorable to father and found that the best interests of the child warranted placement with mother. We cannot say that the trial judge's decision was clearly erroneous or an abuse of discretion.
Accordingly, the decision of the trial court is affirmed.
Affirmed.