Tonjia M. Demuth v. Richard P. Demuth ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Haley and Beales
Argued by teleconference
TONJIA M. DEMUTH
MEMORANDUM OPINION * BY
v. Record No. 3010-07-4 JUDGE ROBERT J. HUMPHREYS
OCTOBER 7, 2008
RICHARD P. DEMUTH
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Rossie D. Alston, Jr., Judge
Thomas F. Hennessy (Stephanie D. Yost; Leiser, Leiser & Hennessy,
PLLC, on briefs), for appellant.
Barbara Murphy Stough (Knight & Stough, LLP, on brief), for
appellee.
Tonjia J. Demuth (“mother”) appeals a custody determination by the circuit court, made
pursuant to her divorce from Richard P. Demuth (“father”). The circuit court awarded primary
physical custody of the couple’s child to mother. However, mother claims that the circuit court
abused its discretion by providing that custody of the child would automatically revert to father if
mother moved out of Virginia, or more than 30 miles from father. For the following reasons, we
agree with mother and reverse the decision of the circuit court.
Analysis
“In matters of custody, visitation, and related child care issues, the court’s paramount
concern is always the best interests of the child.” Farley v. Farley, 9 Va. App. 326, 327-28, 387
S.E.2d 794, 795 (1990). “In matters of a child’s welfare, trial courts are vested with broad
discretion in making the decisions necessary to guard and to foster a child’s best interests.” Id. at
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
328, 387 S.E.2d at 795. “A trial court’s determination of matters within its discretion is
reversible on appeal only for an abuse of that discretion . . . and a trial court’s decision will not
be set aside unless plainly wrong or without evidence to support it.” Id.In furtherance of the best interests of the child goal, “Virginia courts have jurisdiction to
permit the removal of a child from Virginia to another state or to deny such removal.” Wilson v.
Wilson, 12 Va. App. 1251, 1255, 408 S.E.2d 576, 579 (1991). “However, a predetermined
automatic reversal of primary custody, based on an undetermined move in the future, is clearly
an abuse of discretion.” Id. Here, the circuit court clearly believed that a move to Texas was not
in the child’s best interest. In its findings, the court stated:
The parties’ negative behaviors during the course of the marriage
and during the separation were harmful to the child and harmful to
the relationship of the child between the parents. A move to Texas
by the mother will do nothing more than sew [sic] the seeds for
further problems.
The court indicated that the interests of the child would best be served by remaining in mother’s
custody and living in Virginia. Under these circumstances, the proper remedy would have been
for the court to prohibit the child’s permanent removal from the state until such time as a change
of circumstances had been shown, not to provide for an automatic change in custody if mother
chose to move from the Commonwealth with the child. See id.In awarding custody, courts must determine the best interests of the child “under the
circumstances prevailing at the time of the decision.” If those circumstances materially change
at any time in the future, the court, upon request of one of the parties, may modify its original
custody determination. See Brown v. Brown, 30 Va. App. 532, 537, 518 S.E.2d 336, 338
(1999). However, a court cannot indulge in sheer speculation about what may be in the best
interests of the child at some imprecise time in the future by providing for an automatic change
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in custody based upon a future event that may or may not occur. Wilson, 12 Va. App. at 1255,
408 S.E.2d at 579.
Father argues that mother’s move to Texas is not an undetermined future event. He
argues that she has specifically stated her intent to move to Texas and that the custody
determination was essentially a relocation determination. However, there is nothing in the
record demonstrating that mother is moving to Texas. Mother asked the court to allow her to
take the child to Texas. However, when the court made it clear that it would not allow the child
to be taken out of the state, mother indicated that she would rather remain in Virginia than lose
custody of her son. Thus, any potential move that she might make in the future is at this time
undetermined and speculative.
The final decree of divorce and Code § 20-124.5 require that if mother decides to move
in the future, she must file a notice of relocation. At that point, father may ask the court to alter
its original custody determination based on the new circumstances, and the trial court must then
review whether such relocation is in the best interests of the child at that time.
Conclusion
Because the circuit court abused its discretion by providing for an automatic change in
custody in the event of a possible change in circumstances, we reverse its decision, and remand
for further proceedings consistent with this opinion.
Reversed and remanded.
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