Lee Trey Bostick v. Shannon T. Bostick-Bennett ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
LEE TREY BOSTICK
OPINION BY
v. Record Nos. 2925-95-4 and JUDGE ROSEMARIE ANNUNZIATA
0104-96-4 NOVEMBER 26, 1996
SHANNON T. BOSTICK-BENNETT
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Thomas S. Kenny, Judge
Peter M. Fitzner (Shoun & Bach, P.C., on
briefs), for appellant.
(James B. Toohey, guardian ad litem for
Savannah Ashley Bostick, on brief).
No brief or argument for appellee.
Appellant, Lee Trey Bostick (father), was granted a divorce
from appellee, Shannon T. Bostick-Bennett (mother), on the ground
of adultery. Following a hearing on father's motion held
September 5 and 6, 1995, the court awarded him sole physical
custody of the parties' minor child (child). However, the court
denied father's request to remove the child from the state.
Approximately five weeks after the hearing, father gave
written notice of his intention to relocate to North Carolina
with the child. On motion of the child's guardian ad litem, a
second hearing on the removal issue was held in November 1995.
The court again denied father's request to remove the child from
the state, finding the circumstances had not changed since its
September ruling. The guardian ad litem's motion to reconsider
the court's ruling was likewise denied.
Father appeals both the trial court's September and November
rulings. We find no error in the trial court's decision to deny
father's request to remove the child from Virginia and affirm.
I.
Following the hearing in September 1995, the court awarded
sole custody to father and outlined a specific and extensive
visitation plan for mother. The court found the case to be a
close one. With the exception of two statutory factors, it found
the evidence on custody in equipoise.
First, the court found that the "degree of stability" mother
could provide the child was not equal to that which father could
provide. See Code § 20-124.3(3). While the court found that
mother had "remarkable" success in establishing a home and a good
relationship with the child, notwithstanding "very difficult"
circumstances, it expressed concern about the nature and
uncertainties of her job and about her "unrealistic" plans for
caring for the child while she worked. The court found that
father could provide the child a more stable, structured
environment.
Second, the court found mother more likely than father to
actively support the child's contact and relationship with the
other parent. See Code § 20-124.3(6). The court stated that
father's efforts, "[w]ith very limited exceptions," were focused
on curtailing mother's access to the child. It found that father
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had unfairly obtained an ex parte custody order before the
custody hearing to retrieve the child from Kentucky where mother
had taken the child with father's prior acquiescence. 1 The court
also took particular note that father had willingly incurred
expenses totalling approximately $30,000 to employ a private
investigator "to spy on every visitation that [mother] had with
her daughter." The court described the intensity of father's
surveillance efforts as "outrageous." It found that father was
focused, not on assuring the safety of the child, as he
professed, but on "winning" the case at the expense of wife's
privacy. The gravity and materiality of the court's concern on
this issue is underscored by the court's statement that its
finding was nearly sufficient to result in an award of custody to
mother.
Nonetheless, the court found it in the best interests of the
child to award sole custody to father on the ground that father
could provide a more stable environment. However, the court
denied father's request to remove the child from Virginia and
relocate her in North Carolina. As its reason, the court stated,
"I want both parents to be involved, actively, in the life of
this child, and I want that involvement on a regular basis.
Perhaps because you are such different people . . . I want you
1
In his August 1995 report, the guardian ad litem found
that father had made "substantial misrepresentations" as to the
parties' agreement concerning mother and the child's departure in
order to obtain the ex parte order.
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both to be actively involved on a regular basis as she is growing
up." The court further ordered the parties to give thirty days'
notice of any intention to relocate, stating that the child was
not to be removed from the state if an objection was noted.
At the November hearing upon his notice to relocate,
father's evidence established that he had "developed a concrete
plan for his relocation to North Carolina." The plan included a
job offer with Blockbuster in Charlotte, North Carolina, as an
assistant manager, with benefits and potential for advancement,
but at a yearly salary $2500 less than his earnings in Northern
Virginia. Father testified that the lower cost of living in
Charlotte would mitigate the effects of a lower salary. He had
rented a home near Charlotte, which he planned to share with his
mother and brother, and proposed a visitation schedule which
would allow, inter alia, mother to take the child one week a
month. He proposed that the parties meet half way between
Charlotte and Northern Virginia to transfer the child. Father
reasoned that his plan would allow mother more time with the
child and would cut down on the cumulative miles driven in
accommodating the visitation schedule.
At the November hearing, there was also evidence that,
shortly after the September hearing, mother had lost her place of
residence for failure to pay rent, had incurred increased debt,
had lost her job, and had missed several visits with the child
because she could not afford to repair her vehicle or purchase
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another. The evidence also showed that mother had recently
remarried and that her spouse was a marine stationed at Quantico,
Virginia, where they expected to reside for the foreseeable
future; that mother was pregnant; and that the couple had
obtained financial counseling and were making efforts to
stabilize their financial situation. The court stated that it
was "very impressed" with mother's new husband. On balance, the
court found that since the September hearing, mother's life
"really has become much more stable."
At the November hearing, the guardian ad litem endorsed
father's proposal to relocate. He considered the relocation of
one of the parents inevitable and approved father's plan for
relocation which, unlike the one presented at the initial
hearing, was concrete. The guardian ad litem considered the
relocation to be in the child's best interest because it would
allow her to spend more time with her mother and would reduce the
total number of miles driven per month.
Following the November hearing, the court again denied
father's request to relocate, finding that father had failed to
prove a change in the circumstances material to the issue of the
child's removal from the state. It reaffirmed the findings it
made at the September hearing and, reiterating its reason for
denying father's motion to remove the child at the earlier
hearing, stated: "Although I gave father custody . . . I also
ruled that it was important that both parents participated fully
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in [the child's] life and as a result of that I gave liberal
visitation to [mother] and I refused [father] permission to move
[the child] to North Carolina."
The court likewise denied the guardian ad litem's motion for
reconsideration in an opinion letter dated November 22, 1995. In
that letter, the court stated, "I remain convinced that if [the
child] is removed to North Carolina, the likelihood is high that
[father] will not foster a good relationship between [the child]
and her mother. He does not do it here, and there is no reason
to believe that he will do it 350 miles away. The converse is
not true -- if [the child] stays here with her mother, [mother]
is much more likely to foster a good relationship between [the
child] and her father." The court also noted that it would award
custody to mother if father chose to relocate.
II.
"A court may forbid a custodial parent from removing a child
from the state without the court's permission, or it may permit
the child to be removed from the state." Scinaldi v. Scinaldi,
2 Va. App. 571, 573, 347 S.E.2d 149, 150 (1986) (citing
Carpenter v. Carpenter, 220 Va. 299, 302, 257 S.E.2d 845, 848
(1979); Gray v. Gray, 228 Va. 696, 698-99, 324 S.E.2d 677, 678
(1985)). See also Code § 20-107.2 (granting court power to make
decree "concerning the custody or visitation and support of the
minor children of the parties"); Simmons v. Simmons, 1 Va. App.
358, 362, 339 S.E.2d 198, 200 (1986). It is well settled that
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the child's best interest is the criterion against which such a
decision must be measured. E.g., Scinaldi, 2 Va. App. at 573,
347 S.E.2d at 150. Such a decision is a matter of discretion to
be exercised by the court, and, unless plainly wrong or without
evidence to support it, the court's decree must be affirmed.
E.g., Carpenter, 220 Va. at 302, 257 S.E.2d at 848. Finding no
abuse of discretion in this case, we affirm the trial court's
decision.
A.
At the initial custody hearing, the trial court clearly
addressed the reasons for its finding that the child's best
interests would be met by denying father's request to remove her
to North Carolina. While the court found neither parent to be
unfit, weaknesses in each party's ability to parent raised
serious concerns on the part of both the guardian ad litem and
the court. The court was manifestly concerned about father's
"intense need to prove mother unfit" and about his efforts to
limit mother's access to the child. In underscoring the
seriousness of its concern, the court noted that evidence of
father's motivation had made the question of custody a close one,
nearly tipping the balance in mother's favor.
While the court awarded custody to father, it considered the
evidence of father's efforts to minimize mother's access to the
child in denying father's request to remove the child from the
state. In denying the motion, the court specifically noted
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father's efforts to limit mother's access to the child and
emphasized the need to assure mother's regular, active
involvement with the child.
The evidence supports the trial court's conclusion at the
September hearings that the beneficial relationship between the
child and her mother would not be maintained and would be placed
at risk were father allowed to remove the child to North
Carolina. In light of this evidence, we find no abuse of
discretion in the trial court's initial decision to deny father's
request to remove the child. See Scinaldi, 2 Va. App. at 575,
347 S.E.2d at 151 ("[T]he added difficulty in maintaining a
beneficial relationship between a child and a non-custodial
parent should not be the sole basis for restricting a custodial
parent's residence except where the benefits of the relationship
cannot be substantially maintained if the child is moved away
from the non-custodial parent").
B.
Within weeks of the trial court's initial determination,
father filed a notice of intention to remove the child to North
Carolina. "Code § 20-108 permits the court to revise and alter a
prior decree concerning the custody of children and to make a new
decree concerning the same as the circumstances of the parents
and the benefit of the children may require." Simmons, 1 Va.
App. at 362, 339 S.E.2d at 200. Father did not seek modification
of the court's custody determination; rather, he requested the
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court to modify that part of its decree which denied his request
to remove the child from the state. This Court has not addressed
the standard that must be met before a court's decree regarding
removal may be modified.
However, we find such circumstances analogous to those in
which a litigant seeks to modify any other decree concerning
custody or support. In such cases, before evaluating whether to
modify a decree, the court must initially find a "material change
in circumstance." See Turner v. Turner, 3 Va. App. 31, 35, 348
S.E.2d 21, 23 (1986); Hughes v. Gentry, 18 Va. App. 318, 321-22,
443 S.E.2d 448, 450-51 (1994); Hiner v. Hadeed, 15 Va. App. 575,
579, 425 S.E.2d 811, 814 (1993). "In the absence of a material
change in circumstance, reconsideration . . . would be barred by
principles of res judicata." Hiner, 15 Va. App. at 580, 425
S.E.2d at 814.
In cases involving the modification of a custody decree,
once the threshold finding is made, the court must evaluate
whether a change in custody would be in the best interests of the
child. Hughes, 18 Va. App. at 321-22, 443 S.E.2d at 450-51. As
stated above, the best interest of the child is the determinative
factor in deciding whether to allow a custodial parent to remove
the child from the state. E.g., Simmons, 1 Va. App. at 362-63,
339 S.E.2d at 200. Accordingly, we find the best interest of the
child is the criterion upon which a decision denying the removal
of a child may be modified, once the threshold finding of change
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in circumstances is made. Thus, to modify a decree denying a
custodial parent permission to remove the child from the state,
the court must find (1) a material change of circumstance since
the initial decree; and (2) that relocation would be in the
child's best interests. In accordance with our prior decisions,
the moving party bears the burden of proof. See, e.g., Hughes,
18 Va. App. at 322, 443 S.E.2d at 451.
At the November hearing on the motion of the guardian ad
litem, father sought to prove a change of circumstance that would
merit his relocation with the child. The evidence showed that,
since the initial hearing, father had developed a more concrete
plan for his relocation to Charlotte. No other aspect of
father's situation had changed. The court ruled that the
increased certainty in father's relocation plan was not a change
in circumstance material to its prior determination of the
child's best interests. The ruling is not plainly wrong or
without evidence to support it.
While father had developed a more concrete plan to relocate,
the record does not support his contention that this issue was
determinative in the trial court's initial refusal to permit him
to remove the child to North Carolina. The evidence shows that
the court's determination of the best interest of the child was
premised on credible evidence concerning the need to stabilize
the child and to stabilize, foster and preserve the relationship
between mother and child. The court specifically found that, in
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light of father's behavior, these goals would not be achieved if
father were permitted to remove the child to North Carolina.
Implicitly, the court concluded that the best interest of the
child would be served by denying father's request.
A change in circumstance material to the best interests of
the child in the case at bar would have borne some relation to
the reasons for the trial court's initial decision denying the
removal. That decision was premised on the notion that mother,
although struggling, was not unfit and should actively
participate in the child's upbringing. The court refused to
allow father to remove the child because it was concerned that
father would weaken the mother-child bond. There is no evidence
in the record that the circumstances concerning father's
willingness to foster and maintain the mother-child relationship
had changed since the court's initial determination only two
months earlier. Moreover, there is no evidence that mother had
become unfit since the first hearing or that having mother
participate in the child's life was no longer in the child's best
interest. Thus, the change in father's circumstance was not
material to the court's determination of the child's best
interest.
Accordingly, we find the trial court did not abuse its
discretion and we affirm the decree.
Affirmed.
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