Landon T.A. Summers v. Marcia L.B. Summers ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
LANDON TRACY ARCHER SUMMERS
MEMORANDUM OPINION *
v. Record No. 2669-97-4 PER CURIAM
NOVEMBER 10, 1998
MARCIA LEE BROWN SUMMERS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gerald Bruce Lee, Judge
(Dr. Landon Summers, pro se, on briefs).
(David E. Roop, Jr.; Condo & Masterman, on
brief), for appellee.
Landon Tracy Archer Summers (father) appeals the decision of
the circuit court awarding Marcia Lee Brown Summers (mother)
permanent custody of the parties' two children. 1 Father contends
that the trial court erred by (1) erroneously entering a final
order for a Motion for Custody Pendente Lite prior to entry of a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Our review of the record does not disclose any notice of
appeal filed in Chancery No. 147468, which is the case in which
the trial court issued its ruling on permanent custody. Father
filed a separate appeal of the trial court's pendente lite
support order entered in Chancery No. 149903. That appeal was
dismissed for lack of appellate jurisdiction. See Summers v.
Summers, Record No. 2826-97-4 (Va. Ct. App. July 6, 1998).
Father filed an Amended Notice of Appeal on January 14, 1998,
also in Chancery No. 149903, purporting to be an appeal of the
court's final custody order of December 18, 1997. Mother
conceded that father filed a notice of appeal of the December 18,
1997 custody order. Therefore, under these circumstances, we do
not find that father's failure to properly caption the notice of
appeal mandates dismissal of his appeal. See Carlton v. Paxton,
14 Va. App. 105, 109-11, 415 S.E.2d 600, 602-03, aff'd on reh'g
en banc, 15 Va. App. 265, 422 S.E.2d 423 (1992).
divorce decree; (2) failing to implement the recommendations of a
custody evaluator; (3) changing joint custody to sole custody;
and (4) failing to consider the best interests of the children.
Upon reviewing the record and briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the decision of the trial court. See Rule 5A:27.
On appeal, we review the evidence in the light most
favorable to mother as the prevailing party below. See Peple v.
Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). "The
trial court'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).
Appealable Order
Father contends that orders entered by the trial court on
October 10, 1997, November 24, 1997, 2 and December 18, 1997 were
void ab initio and that there was no final appealable order. We
disagree. Under Code § 17-116.05(3), the Court of Appeals has
jurisdiction to hear appeals from "[a]ny final judgment, order,
or decree of a circuit court involving: . . . Custody" and other
domestic relations matters. An aggrieved party may also appeal
"[a]ny interlocutory decree or order entered in any of the cases
listed in this section . . . adjudicating the principles of a
cause." Code § 17-116.05(4).
2
No order in the custody case was entered on this date. An
opinion letter was issued in Chancery No. 149903.
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For an interlocutory decree to adjudicate
the principles of a cause, the decision must
be such that "'the rules or methods by which
the rights of the parties are to be finally
worked out have been so far determined that
it is only necessary to apply those rules or
methods to the facts of the case in order to
ascertain the relative rights of the parties,
with regard to the subject matter of the
suit.'"
Erikson v. Erikson, 19 Va. App. 389, 391, 451 S.E.2d 711, 712-13
(1994) (citations omitted).
The decree entered by the trial court on December 18, 1997
set out the court's final ruling on custody. We find that the
order was an interlocutory decree which adjudicated the
3
principles of a cause. The divorce and equitable distribution
proceedings continued, but the custody issues were resolved.
Father noted an appeal, thereby bringing this matter before us
for review. We find no merit in the errors alleged by father in
connection with the trial court's entry of the permanent custody
order.
Custody Evaluator
The trial court is not required to adopt recommendations
made by an expert witness. "It is well established that the
trier of fact ascertains [an expert] witness' credibility,
3
A pendente lite order is a holding action pending final
decision in the case. See Weizenbaum v. Weizenbaum, 12 Va. App.
899, 903, 407 S.E.2d 37, 39-40 (1991). Pendente lite orders are
not appealable. See id. In contrast, the trial court explicitly
noted that the custody order now appealed was its final decision
on custody. Therefore, because this order fully determined the
custody issues, it adjudicated the principles of a cause and was
an appealable order. See Code § 17-116.05(4).
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determines the weight to be given to their testimony, and has the
discretion to accept or reject any of the witness' testimony."
Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668
(1997) (en banc) (citation omitted). "[T]he fact finder is not
required to accept the testimony of an expert witness merely
because he or she has qualified as an expert. In determining the
weight to be given the testimony of an expert witness, the fact
finder may consider the basis for the expert's opinion." Id. at
387, 488 S.E.2d at 668-69.
The trial court's decision was supported by substantial
evidence presented during three days of testimony, including that
elicited during the cross-examination of the custody evaluator.
Specifically, the trial court noted that
Dr. Schutz's judgment of a joint custody
arrangement has been tried out, and it is
important to me to describe to you what joint
custody means. 20-124.1 of the Code says
that joint custody means where both parents
retain joint responsibility for the care and
control of a child, and joint authority to
make decisions concerning the child, even
though the child's primary residence may be
with only one parent. . . . It is
self-evident that a key component of joint
custody is communication and cooperation, and
mutuality, and purpose. It is fair to say
that in this case that joint custody has
failed.
Because the trial court's decision is fully supported by the
evidence, we find no error in the trial court's decision not to
follow the recommendation of the custody evaluator.
Award of Sole Custody
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Father also contends that the trial court erred when it
awarded mother sole custody with visitation to father rather than
continuing joint custody. The record amply demonstrates that
these parties were unable to communicate or otherwise cooperate
in raising their two young children. Testimony from numerous
witnesses, including the custody evaluator, documented the
confusion caused by the parents' battles to control the
children's schooling, toilet training, and daily care. 4 We find
the trial court's decision to award sole custody to mother,
rather than continuing the unsuccessful attempt at joint custody,
amply supported by the evidence.
Best Interests of the Children
"'In determining custody, the court shall give primary
consideration to the best interests of the child.'" Sargent v.
Sargent, 20 Va. App. 694, 701, 460 S.E.2d 596, 599 (1995)
(quoting Code § 20-124.2). The record demonstrates that the
trial court's decision rested on its evaluation and consideration
of the best interests of the parties' young children. In
addition, the trial court specifically addressed the best
interests of the children in its detailed opinion letter denying
father's motion for reconsideration. The evidence supports the
trial court's conclusions, and it is clear that the decision was
4
While this Court is not a fact finder, we need look no
further than the multiple motions, replies, and supplemental
replies filed by the parties in connection with this appeal to be
convinced that the trial court properly noted that "[t]hese
parents cannot agree on the time of day."
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made with the best interests of the children as the foremost
concern. Father has not demonstrated error.
Accordingly, the decision of the circuit court is summarily
affirmed. 5
Affirmed.
5
Both parties have filed numerous motions with this Court.
We deny father's motion for leave to proceed with mediation,
motion for leave to file a supplemental brief, motion to stay
divorce proceedings, and motion to stay enrollment of the
parties' son. We deny mother's motion to strike, except as the
issues raised are addressed in this opinion.
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