Opinion
Record No. 1701-92-3
October 12, 1993
FROM THE FAMILY COURT OF THE CITY OF ROANOKE ROY B. WILLETT, JUDGE.
Frank K. Friedman (David A. Clark; Woods, Rogers, Hazlegrove, on brief), for appellant.
(Richard Lee Lawrence, on brief), for appellee. Appellee submitting on brief.
Present: Judges Koontz, Elder and Fitzpatrick.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Ira Eugene Terrell (hereinafter "husband") appeals the award of custody of the parties' daughter, Nichole, to Tracey Doreen Turpin Terrell Hackett (hereinafter "wife"), subject to the condition that Nichole reside with wife's foster parents. He also challenges the trial court's decision to grant wife a no-fault divorce under Code § 20-91(9)(a). For the reasons set forth below, we affirm the decision of the trial court in part and reverse in part.
Nichole Terrell was born to Hackett and Terrell on June 9, 1983. Husband was Nichole's primary caregiver for the first four years of her life, during which time wife was the primary wage-earner. When Nichole was young, wife frequently hit her with "switches" in an attempt to get her to stop crying and on other occasions left the home for several days at a time. Husband never abused Nichole.
In February of 1987, wife left home in the middle of the night, taking Nichole with her, purportedly to escape from her abusive husband, who she testified had pushed her on several occasions. She made no claim, however, that husband was ever abusive toward Nichole. Husband contacted the Maynors, wife's foster parents, in an effort to locate her. Although the Maynors were in contact with wife, they denied knowing her whereabouts, and husband had no contact with wife until she wrote his mother in 1990.
In 1991, over wife's protests, he obtained court-ordered visitation privileges, but testified that wife continued to make visitation difficult. Wife was convicted of child neglect in 1989 and she was a former prostitute who cohabited with men while she had custody of Nichole. Wife also admitted that she had moved so many times that Nichole attended four different schools during one year, and she testified that she "gave" Nichole to the Maynors because she could not care for her daughter properly.
The social worker assigned to the case testified that Nichole seemed comfortable living with the Maynors and that she did not feel comfortable seeing her father. The guardian ad litem concurred in this assessment and voiced the opinion that the Maynors should continue to have physical custody. He also observed that Nichole felt uncomfortable about the fact that husband had called her "fool," which husband stated was intended to be a pet name.
Finally, husband objected to the granting of the divorce on the ground that it violated his religious beliefs and that wife agreed when they married that they would never divorce for that reason.
After hearing the above evidence, the court granted the divorce and gave custody of Nichole to wife, subject to the condition that Nichole reside with the Maynors. It also permitted wife to have weekend visitation, provided that she did not cohabit with any male not her relative during the visitation, and it permitted husband's visitation to continue as previously ordered.
I.
On appeal in child custody matters, "we review the evidence in the light most favorable . . . to the prevailing party below. The judgment of a trial court sitting in equity, when based on evidence heard ore tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it."Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988) (citations omitted). As between two fit parents, the best interests of the child are the court's primary concern,Kogon v. Ulerick, 12 Va. App. 595, 596, 405 S.E.2d 441, 442 (1991), and no presumption favors an award of custody to either. Code § 31-15; Visikides v. Derr, 3 Va. App. 69, 72, 348 S.E.2d 40, 42 (1986). In such cases, the trial court is vested with broad discretion to make decisions necessary to guard and foster a child's best interests.Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990).
In this case, the trial court awarded legal custody of the child to the wife, but required that the child's "physical residence" continue with wife's foster parents, the Maynors. The wife, who had legal custody of the child under the trial court's order, was given more restrictive visitation rights than father. Although the imposition of special conditions on custody normally lies in the sound discretion of the trial judge,see Ferris v. Underwood, 3 Va. App. 25, 29, 348 S.E.2d 18, 20 (1986), the exercise of that discretion presupposes a finding of parental fitness. The trial judge did not make an explicit finding of fitness of wife and we find little in the record that would support such a finding. On the other hand, wife concedes that husband is Nichole's natural father and that he is a fit parent, concessions supported by the record.
In view of the uncontradicted evidence concerning the wife's behavior and the fact that the child had little contact with her father since 1987, the trial judge, in effect, gave custody to the Maynors. A court may award custody to a nonparent over a fit parent only if it determines by clear and convincing evidence that exceptional circumstances exist. Mason v. Moon, 9 Va. App. 217, 223, 385 S.E.2d 242, 246 (1989) (citingPatrick v. Byerley, 228 Va. 691, 694, 325 S.E.2d 99, 101 (1985)). This standard is based on a strong presumption that the child's best interests will be served by placing her in the custody of a fit natural parent rather than with a third party. Id. at 220, 385 S.E.2d at 244.
The Virginia Supreme Court has held that this presumption can be rebutted by establishing certain factors, including: "(1) parental unfitness; (2) a previous order of divestiture; (3) voluntary relinquishment; . . . (4) abandonment; [or (5)] special facts and circumstances constituting an extraordinary reason for taking a child from its . . . parents." Bailes v. Sours, 231 Va. 96, 100, 340 S.E.2d 824, 827 (1986) (citations omitted). Because the trial court, in effect, gave custody to a non-parent, we remand this case for findings consistent withBailes or an award of custody to a fit parent.
II.
Husband contends that the trial court's award, over husband's objection, of a no-fault divorce interfered with husband's free exercise of religion and violated an express agreement between the parties not to divorce. However, this argument is not developed to the extent that we know what husband's religion is or how his free exercise of religion is affected by the grant of a no-fault divorce. The record does not indicate that this argument was fully addressed before the trial court. Therefore, because this claim has not been adequately developed, we need not address it. See Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).
Even if we were to address this argument on the merits, it likely would fail. As the Supreme Court of Oklahoma held inWilliams v. Williams, 543 P.2d 1401 (Okla. 1975), cert. denied, 426 U.S. 901 (1976),
Divorce is wholly a creature of statute with absolute power to prescribe conditions relative thereto being vested in the State.
Neither the Constitution of the United States, nor the State of Oklahoma, prohibits the legislature from specifying upon what grounds, if any, divorces are to be granted. . . .
Appellant's complaint that [his] constitutional right for the free exercise of religion is being violated is unfounded. The action of the trial court only dissolved the civil contract of marriage between the parties. No attempt was made to dissolve it ecclesiastically. Therefore, there is no infringement upon [his] constitutional right of freedom of religion.
Id. at 1403; see Wikoski v. Wikoski, 513 A.2d 986 (Pa.Super.Ct. 1986) (surveying relevant federal and state cases). Virginia's no-fault divorce statute provides no exception for agreements not to divorce made between the parties.
For the reasons stated, we affirm the decision of the trial court as to its entry of the final decree of divorce. We reverse the decision of the trial court as to the award of custody and remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.