Opinion
Record No. 2589-92-2
March 1, 1994
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND ROBERT L. HARRIS, JUDGE.
John B. Mann (Levit and Mann, on brief), for appellant.
(Dorothy M. Speith; Kaestner Associates, on brief), for appellee.
Present: Judges Benton, Koontz, and Willis.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Jonell Grubb (Jonell) appeals from two orders of the Circuit Court of the City of Richmond granting a motion for change of custody filed by Charles Grubb (Charles), Jonell's husband, with respect to the couple's child, and denying a motion for spousal support filed by Jonell. For the following reasons, we affirm the decisions of the circuit court.
The parties are familiar with the facts of this case. Accordingly, we restate only those facts necessary to explain our holding. Charles Grubb and Jonell Grubb married in April, 1985, four months after the birth of their only child, a daughter, Christina. In December, 1990, Jonell moved to Kentucky, taking Christina with her. Charles filed for divorce on January 3, 1991, charging Jonell with willful desertion.
In a preliminary order dated March 28, 1991, the court awarded temporary custody of Christina and temporary child support to Jonell. A subsequent order dated October 18, 1991, awarded permanent custody to Jonell and gave detailed visitation rights to Charles.
Prior to issuing the final divorce decree, the chancellor heard testimony and argument on two motions, one filed by Charles seeking a change of custody, the other by Jonell seeking an award of spousal support. During a hearing held August 11, 1992, evidence showed that Charles was illiterate, but had begun taking remedial reading lessons and had made good progress. During court ordered visitation, Charles served as primary care giver for Christina. Charles said that he had taken a parenting course and would take additional classes if granted custody of his daughter. On cross-examination, Charles admitted that he could not read the label on his daughter's medication.
Jonell testified that Christina lived with Jonell's family in Kentucky; the child had her own bedroom and playroom. Christina attended the school where Jonell hoped to work as a teacher's aide after having spent the previous year as a bus monitor. Jonell said that she could better provide for her daughter, who needed constant medical attention for allergies and kidney problems.
The chancellor requested that Jonell provide Christina's medical records "to see how sick this child is because [according to Jonell] it's almost like she needs to be in a bubble. . . ." The chancellor stated that if all things were equal, Christina would be better off with her mother, but that "[t]he child has got to be allowed to grow up without the kind of oppressive . . . concern that is being demonstrated [by Jonell]."
The chancellor ordered a review of Christina's medical records and informed the parties that he would issue a decision after hearing final arguments "in September." For reasons not explained in the record, final arguments were delayed until a hearing held October 6, 1992. At that hearing, the chancellor stated that an examination of the medical records did not show that Christina had the serious medical problems alleged by her mother. The chancellor reiterated his understanding of each parent's abilities and deficiencies in providing for the child and stated that he evaluated these factors in terms of Christina's best interests. The chancellor awarded Charles custody of Christina. The order confirming the chancellor's decision was submitted at that time but was not entered until December 8, 1992.
In a hearing held December 4, 1992, Jonell testified concerning her need for support and presented the court with a statement of current earnings and expenses. She also requested a rehearing on the issue of custody. Charles did not appear at the hearing. The chancellor denied both motions. The final decree of divorce, entered December 30, 1992, awarded Charles a divorce on the ground of willful desertion, adopting by reference its most recent prior orders on custody and support.
Pursuant to Code § 20-108, the chancellor may "revise and alter such decree concerning the care, custody and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require." In determining whether a change in custody is warranted, the chancellor applies a two-part test: (1) whether there has been a change of circumstances following the most recent custody award; and (2) whether a change of custody would be in the best interests of the child. Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983). Contrary to Jonell's assertion that the chancellor adopted a de novo standard in considering the change of custody, the record supports a finding of a change in circumstances warranting a review of the custody order. Charles had retired and could devote his full energies to rearing his daughter. There was also evidence that Jonell had interfered with visitation, which in itself may constitute a material change of circumstances. See Code § 20-108.
The second prong of the test, the best interests of the child, is the most important. Visikides v. Derr, 3 Va. App. 69, 71, 348 S.E.2d 40, 41 (1986). On appeal, we review the evidence in the light most favorable to the prevailing party below.Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). "The [chancellor'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."Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986).
In determining the best interests of the child, the chancellor is required to consider the enumerated factors found in Code § 20-107.2. Although the chancellor must consider the evidence in light of all the specific factors listed in the statute, we have held under similar statutes that the chancellor is not required to quantify or elaborate exactly what weight or consideration has been given to each factor. See, e.g., Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986) (factors for determining support). In such cases, we have held that the chancellor does not abuse his or her discretion where there is some foundation for the chancellor's action in the evidence presented. This rationale is equally applicable to the application of Code § 20-107.2.
Here, the record shows that the chancellor was both cognizant of the statute and that he considered carefully those factors most prominent in the case: the age and physical condition of the parents and the child, the relationship of Christina to her parents, the needs of Christina, and the role each parent was to play in rearing the child. Evidence supporting the chancellor's consideration of these and the other factors precludes us from saying that his decision was plainly wrong. Accordingly, we affirm the order changing custody.
Similarly, Jonell asserts that the chancellor erred in denying her spousal support by failing to consider the statutory factors relating to that decision. Contrary to Jonell's first argument, it does not appear from the record that the chancellor denied support because of the divorce decree's finding of willful desertion. Rather, it appears that the chancellor received testimony on Jonell's financial condition and earning capacity. As with the determination of custody, it is not necessary for the chancellor to recite specific findings on the statutory factors relating to the determination of support found in Code § 20-107.1. Woolley, 3 Va. App. at 345, 349 S.E.2d at 426.
Here, the record shows that the chancellor received testimony on the financial condition of the party seeking support. Moreover, it is clear from the record that the chancellor was well acquainted with the circumstances of the case, including such relevant factors as the length of the marriage and the financial ability of Charles to pay support. Nothing in the record suggests that the chancellor failed to apply this evidence in considering the statutory factors or that he erred in doing so. Accordingly, we affirm the chancellor's decision denying support.
Affirmed.
The evidence proves that the mother has a need for financial support and that the husband has the financial ability to pay some amount. The trial judge gave no reason for denying the mother's request for spousal support. "When, as in the present case, the [trial judge] fails to state any basis for reaching a given conclusion, the reviewing court is hindered in its task."Woolley v. Woolley, 3 Va. App. 337, 344, 349 S.E.2d 422, 426 (1986).
This Court can only speculate as to the reason for the trial judge's denial of spousal support to the wife. A reviewing court should not be required to speculate when, as here, the legislature has spoken in unambiguous terms about a trial judge's obligation to consider specific factors in order to reach a decision. See Code § 20-107.1. The trial judge's failure to state reasons for denying the request for spousal support constitutes reversible error. See Brooker v. Brooker, 218 Va. 12, 13, 235 S.E.2d 309, 310 (1977); Moon v. Moon, 210 Va. 575, 577, 172 S.E.2d 778, 779 (1970). See also Via v. Via, 14 Va. App. 868, 870-72, 419 S.E.2d 431, 433-34 (1992).
The trial judge's reason for changing custody of the child from the mother to the father also is inadequate to support the change. "The test [for determining the propriety of a change of child custody] has two prongs: first, has there been a change in circumstances since the most recent custody award; second, would a change in custody be in the best interests of the children." Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983). The trial judge made no finding that the father proved a change in circumstances that justified a change in custody.
The trial judge's observation that the child's mother was overly concerned about protecting the child's health does not suffice as either a finding of a change in circumstances or a valid reason to change custody of the child. Custody of a child cannot be ordered as a means of punishing a parent. Moyer v. Moyer, 206 Va. 899, 901, 147 S.E.2d 148, 150 (1966). Although evidence exists in the record of the father's recent retirement because of his advanced age, nothing in the record suggests whether or how the trial judge found this to be a meaningful change in circumstances. Although we are constrained to defer to the trial judge's findings of fact, see Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 664, 651 (1986), we are not required to speculate as to what those findings might have been.
Accordingly, I would reverse and remand for findings concerning spousal support and custody of the child and for reconsideration based upon those findings.