Opinion
Record No. 1919-92-3
April 20, 1993
FROM THE CIRCUIT COURT OF WYTHE COUNTY WILLIS A. WOODS, JUDGE.
(Donald G. Hammer; Burke, Graybeal Hammer, on briefs), for appellant.
(A. Willard Lester, on brief), for appellee.
Present: Judges Barrow, Moon and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
James Virgil Clemons (father) appeals the trial court's custody ruling. The trial court granted joint legal custody of Christopher Clemons to father and Rebecca Billings Clemons (mother), with primary physical custody of the child to mother. Father contends that he should have received full legal and physical custody of the child.
Father points to many negative factors which weigh against mother in the custody determination: in 1989, mother admitted embezzling tens of thousands of dollars from a former employer and is obligated to repay this money to avoid prosecution; mother attempted suicide when Christopher was three months old, after the embezzlement was discovered; mother took the child and left father, and did not tell father where the child was for six months; mother has previously engaged in an adulterous relationship and lived with another man in the presence of the young child; mother gave birth to an illegitimate daughter who is receiving no support from the father. Father also argues that the trial court relied on a "tender years" presumption in making the custody determination.
The case was submitted to the court on depositions, and the court issued two letter opinions. The final decree was entered on September 9, 1992. First, we disagree with the father that the judge employed a "tender years" presumption. The judge's letter opinion only shows that the judge considered the child's age as an important factor in determining whether the child should be physically separated from the mother. Under Code § 20-107.2, the court, upon decreeing a divorce, "may make such further decree as it shall deem expedient concerning the custody . . . of the minor children of the parties . . . ." This statute sets out a number of factors for the court to consider in making a custody decision. Among them are "[t]he age and physical and mental condition of the child" and of the parents; the existing relationship between the child and each parent; the needs of the child; the role which each parent has played and will play in the care and upbringing of the child.
In matters of custody and related child care issues, the paramount concern for the trial court is the best interests of the child. Smith v. Pond, 5 Va. App. 161, 163, 360 S.E.2d 885, 886 (1987). In making this determination, the court must consider all the evidence and facts before it. Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986). "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. The trial court is vested with broad discretion, which will be disturbed on appeal only if the decision is plainly wrong or without evidence to support it. Id. A trial court is presumed to have weighed all the evidence completely, considered the statutory requirements, and made its decision in the child's best interests. Id. at 329, 387 S.E.2d at 796.
A great deal of testimony from witnesses for both parents was presented to the trial court by way of deposition. The trial court, in its order, addressed most of the factors set out in Code § 20-107.2 and ruled that the child's interests would best be served by joint legal custody and by primary physical custody with mother. The court stated, "[a]lthough there is some evidence as to the emotional instability of the mother, the Court feels she has adjusted and is physically and mentally able to care for the child." Testimony from several witnesses supports this finding. Therefore, it is not plainly wrong or without evidence to support it. Farley, 9 Va. App. at 328, 387 S.E.2d at 795. We also note that not every instance of irrational or bizarre behavior renders one an unfit parent. Leisge v. Leisge, 223 Va. 688, 693-94, 292 S.E.2d 352, 355 (1982).
As to father's allegations concerning mother's adultery, there is no claim that she is maintaining such a relationship at this time. Additionally, in assessing the effect of a parent's adulterous conduct on custody issues, the controlling consideration is the child's welfare. Adultery alone does not make a parent an unfit custodian. Therefore, the extent to which the child is exposed to such conduct must be given careful consideration in judging the moral climate of the home.Brown v. Brown, 218 Va. 196, 199, 237 S.E.2d 89, 91 (1977);Brinkley v. Brinkley, 1 Va. App. 222, 223-24, 336 S.E.2d 901, 902 (1985).
For the reasons stated, we affirm the decision of the circuit court.
Affirmed.