Jean E. Attard v. Anthony J. Attard ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
JEAN E. ATTARD
MEMORANDUM OPINION *
v. Record No. 2288-01-2 PER CURIAM
MARCH 12, 2002
ANTHONY J. ATTARD
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
(Deanna D. Cook; Bremner, Janus, Cook &
Marcus, on brief), for appellant.
(Carol A.N. Breit, on brief), for appellee.
Jean E. Attard (mother) appeals the decision of the trial
court to grant Anthony J. Attard (father) future unsupervised
visitation with their minor child. Mother contends the circuit
court abused its discretion in (1) granting husband future
unsupervised visitation, (2) deferring decision making authority
on the issue of unsupervised visits to Clinical Alternatives, and
(3) placing husband in charge of monitoring his own counseling and
reporting his minor child's difficulties. 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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
On appeal, we view the evidence in the light most favorable
to the party prevailing below and grant to that party all
inferences fairly deducible therefrom. See McGuire v. McGuire, 10
Va. App. 248, 250, 391 S.E.2d 344, 346 (1990). The parties
married on December 6, 1986. One child, Charles J. Attard (the
child), was born of this marriage on November 18, 1994. The
parties separated in February 1999.
Mother was diagnosed with brain cancer during her pregnancy
in August 1994. She underwent brain surgery on December 19, 1994,
one month after delivering the child. During the course of this
surgery, a tumor was removed from the right frontal parietal lobe
of mother’s brain. Mother subsequently suffered a recurrence of
symptoms for which she underwent additional chemotherapy in 1998.
She is presently taking the medications Dilantin and Phenobarbital
to prevent seizures.
In January 1998, mother and father noted that the child's
behavior toward father abruptly changed. On at least five or six
occasions, the child told father to die; go away. On these
occasions, the child resisted being alone with father. The child
also resisted father's attempts to change his diapers. Mother
testified that it was about this time she learned of husband’s
alleged sexually deviant behavior.
Concerned about the child’s behavior, the parties consulted a
child psychologist, Dr. Crichigno. Father met once with
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Dr. Crichigno and was questioned about his sexual behavior.
Within two months of this meeting, father sought counseling to
address mother's concerns about his sexual behavior. Father
admitted suffering sexual abuse as a child.
In 1998, father accepted an extended work assignment in
Japan; the child accompanied mother to New York where she received
medical treatment. Upon arriving in Japan, father decided to
abandon the assignment and return to Richmond. A month later,
father traveled to New York to visit mother and the child. Both
parties testified that father's access to the child was restricted
and supervised by mother during this and subsequent visits.
In February 1999, mother returned with the child to Richmond,
but she did not resume cohabitation with father. Before the
issuance of an order allowing supervised visitation in late 2000,
father visited the child "on a majority of the weekends" for
periods of up to three and one-half hours. All such visits were
supervised. By May or June of 1999, the child's behavior,
according to mother, again started to decline. She initiated
divorce proceedings on August 12, 1999.
That month, mother consulted Dr. Pamela Waaland regarding her
perception that the child's behavior had declined. Dr. Waaland
testified that during the initial meeting mother stated that the
child was having trouble with sleep, very fearful, having
nightmares, bizarre behavior, [and] having some aggression. At
that meeting, mother expressed her concern about father's sexual
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behavior and her suspicion that father was sexually abusing the
child. Since August 1999, Dr. Waaland has conducted over thirty
sessions with the child. She characterized the meetings as
common. Dr. Waaland met with father once, in January 2000. At
trial, Dr. Waaland diagnosed the child with adjustment reaction
disorder and stated that she was unable to rule out a diagnosis of
post-traumatic stress disorder. One possible explanation for the
child's disorder, Waaland stated, was that he was sexually abused.
The trial court directed Dr. Evan Nelson to evaluate father
to assess him for traits of sexual deviancy that might be relevant
to his parenting abilities. For the evaluation, Dr. Nelson
reviewed his interviews with father, documents submitted by
mother, and the testimony of, among others, Dr. Waaland and
mother. Dr. Nelson noted that mother's allegation of sexual abuse
seemed to be the primary reason for requesting this evaluation and
addressed the issue accordingly.
Dr. Nelson administered the Multiphastic Sexual Inventory -
II (MSI-II) test and a portion of the ABEL Assessment of Sexual
Interest (ABEL) test to father. His score on the MSI-II indicated
some attitudes about sexuality that are problematic, but does not
predict that he will molest in the future. On the ABEL test,
father tested as sexually interested in preschool-aged boys.
Nelson noted that only the ABEL results suggested father's
interests were anything but normal. On the probative value of the
ABEL results Dr. Nelson wrote that "[a] psychological test cannot
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prove what [father] did in the past; and . . . a deviant result on
the ABEL might not be meaningful for predicting the future."
Dr. Nelson did determine, based upon all of the information
available, that father manifested a sexual disorder. He stated
that father's behavior met criteria for the DSM-IV diagnosis of
Paraphilia, NOS, an interest in sexual activity that is atypical
and that may eclipse normal sexual functioning. However,
Dr. Nelson opined that this sexual disorder was not related to the
child. Accordingly, he "found no clear and convincing evidence
that [father's] psychological problems would affect his behavior
with [the child]."
By order dated January 30, 2001, the trial court permitted
father supervised visitation with the child for eight hours every
other weekend. Pamela Taylor, a social worker with Clinical
Alternatives, supervised nine such visits. Each of the visits
went well. She testified that father was cooperative and complied
with the rules set forth by Clinical Alternatives. As ordered by
the trial court, Taylor maintained constant eye-to-eye contact
with the child throughout the visits. Taylor testified that the
visits, preplanned by mother, often consisted of educational
outings: trips to science museums, the children's museum, and
schoolhouses. She noted that father takes the "time to talk with
[the child] regarding different activities, working on his
school," and on a one to ten scale of a dad she rated father a
ten, the very best. The child, initially timid or reserved in the
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company of father, has grown more comfortable in father's
presence.
Gerard Kilyk, another social worker with Clinical
Alternatives, supervised four visits. He corroborated Taylor's
account of the manner in which father and child collectively
decided on an activity. Kilyk noted how they interacted, and
recalled how the two "would have a dialogue that would be very
lengthy" and that "[t]here would be lots of interaction about
. . . play type things and just general life things." He, too,
rated father's parenting skills a ten.
During the hearing on mother's motion to terminate or further
limit father's supervised visits, father presented the testimony
of Dr. Michael Martelli, a rehabilitation neuropsychologist.
Dr. Martelli opined that damage to the brain would always produce
a consequence. He reviewed mother's medical records and stated
that the damage to a brain after an operation identical to that
performed on mother might affect the patient's perception and
ability to make decisions. Dr. Martelli explained that those who
suffer brain damage similar to mother's commonly lack an awareness
of their impairment. They also frequently misperceive the
intentions and the motivations of others. In his experience,
relationships change in almost every case after a brain injury.
He estimated the divorce rate to be fifty percent in the year
following brain injury.
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By final decree of divorce dated August 8, 2001, the trial
court awarded sole legal and physical custody of the child to
mother. The trial court allowed father to continue supervised
visitation as established by the January 30, 2001 order, and it
also allowed father to begin unsupervised visitation on Father's
Day (June 2002) "[a]s long as the supervisors at Clinical
Alternatives report that" ongoing supervised visitation went well.
Moreover, in case "the parties cannot agree on expanded
visitation," the trial court included in the order a statement
that it "will hear it." It is from that decree mother appeals.
ANALYSIS
ISSUE I: UNSUPERVISED VISITATION
Mother contends the trial court abused its discretion in
granting father future unsupervised visitation and that, in so
ruling, it failed to address the child's best interests.
Specifically, mother relies on the evidence presented at trial
regarding alleged abuse and the child's perceived distress in
the presence of father to support her claim that the trial court
abused its discretion in allowing visitation.
"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.
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at 328, 387 S.E.2d at 795 (citing Eichelberger v. Eichelberger, 2
Va. App. 409, 412, 345 S.E.2d 10, 12 (1986)). "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. (citations omitted).
Evidence of the child's alleged abuse produced at trial
consisted primarily of the testimony of mother and Dr. Waaland,
the child's psychologist. From an alleged statement by the
child about a tickling game with father, mother inferred sexual
abuse. Hers was the only testimony to recount a direct
statement by the child about father's alleged abusive behavior.
After conducting over thirty sessions with the child,
Dr. Waaland was unable to recount a single direct statement by
the child of any abusive incident.
Although Dr. Nelson found that father manifested an
interest in sexual activity that was atypical, he did not believe
that this sexual disorder was related to the child. Dr. Nelson
informed the trial court that he uncovered "no clear and
convincing evidence that [father's] psychological problems would
affect his behavior with [the child]."
A January 30, 2001 order permitted father supervised
visitation for eight hours every other weekend. The trial court
heard the testimony of two counselors assigned to supervise
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father's visits. Both counselors praised father and expressed
unequivocal confidence in his parenting skills.
For purposes of appellate review, "'[a] trial court is
presumed to have thoroughly weighed all the evidence, considered
the statutory requirements, and made its determination based on
the child's best interests.'" Logan v. Fairfax County Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991)
(citation omitted). The record reveals that the trial court's
decision to grant father unsupervised visitation was supported by
the evidence and not plainly wrong. Therefore, the trial court
did not abuse its discretion.
Mother further asserts that the trial court wrongly
considered her possible premature death in making the custody
decision. Her assertion is without merit. Code § 20-124.3
provides that in determining a child's best interest, the court
shall consider, among other factors, "[t]he age and physical and
mental condition of each parent" and "[t]he role each parent has
played and will play in the future." (Emphasis added). Mother's
brain condition has been and continues to be an issue in
mother's life and, thus, a factor for the trial court to
consider in determining the child's best interests pursuant to
the statute.
Moreover, Wilson v. Wilson, 12 Va. App. 1251, 408 S.E.2d
576 (1991), cited by appellant in support of her argument, is
distinguishable from the facts here. In Wilson, the mother
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sought to move to another state with the child and contested the
award of visitation to father, after the father had violated a
court order enjoining him from performing certain hygiene
practices on the son. Id. at 1254, 408 S.E.2d at 578. The
trial court continued joint custody, awarded father liberal
visitation, found that the father was in contempt of the
juvenile court injunction forbidding the questionable practices
and authorized mother's move to Tennessee. The trial court also
"ordered that should [mother] move from that location, primary
custody of the son would automatically transfer to [father]."
Id. We held that the trial court abused its discretion in
awarding unsupervised visitation to father after he "persisted
in these activities in contravention of a court order [namely,
an injunction]." Id. at 1254, 408 S.E.2d at 578-79. We also
held it was an abuse of discretion for the trial court to
include in its order a "predetermined automatic reversal of
primary custody [from mother to father], based on an
undetermined move in the future." Id. at 1255, 408 S.E.2d at
579 (noting that child's best interests could not be assessed
until a move is actually contemplated and/or accomplished).
Here, father did not violate any court orders or engage in
questionable conduct in violation of a court order or
injunction. Instead, the evidence showed that father complied
with supervision requirements and conducted himself in an
appropriate and exemplary manner. In contrast to the uncertain
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event in Wilson, viz., a possible move by mother, this case
established that mother underwent an operation for brain cancer
and presently takes medications for seizures. Therefore, the
trial court was required to consider the parents' physical
condition and their respective roles in the future. See Code
§ 20-124.3. Moreover, the contested order provides for
additional hearings in the event that the parties are unable to
agree on expanded visitation in the future.
The record demonstrates that the trial court properly
considered the factors contemplated by Code § 20-124.3 and
determined that, under the present conditions, the best
interests of the child were consistent with a grant of future,
conditional unsupervised visitation. Accordingly, we find no
abuse of discretion.
ISSUE II: DEFERENCE TO CLINICAL ALTERNATIVES
Mother asserts the trial court committed reversible error by
delegating its authority to Clinical Alternatives to grant father
unsupervised visits with the child.
"The trial court's decision, when based upon credibility
determinations made during an ore tenus hearing, is owed great
weight and will not be disturbed unless plainly wrong or without
evidence to support it." Douglas v. Hammett, 28 Va. App. 517,
525, 507 S.E.2d 98, 102 (1998). Because we review the evidence in
the light most favorable to the party prevailing below, all
evidence in conflict with the father's evidence must be
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disregarded. See Garst v. Obenchain, 196 Va. 664, 668, 85 S.E.2d
207, 210 (1955); Rusty's Welding Service, Inc. v. Gibson, 29 Va.
App. 119, 131, 510 S.E.2d 255, 261 (1999).
The trial court heard and considered the testimony of the
parties and their witnesses, including the observations by two
social workers at Clinical Alternatives regarding father's
supervised visits with the child. The record demonstrates that
Clinical Alternatives and its staff performed in a professional
and conscientious manner supervising and reporting on visits
between father and child. Mother presented no evidence that
Clinical Alternatives was not competent or qualified. Moreover,
in its August 8, 2001 order, the trial court expressly reserved
its authority to hear and determine any visitation issues "[i]f
in the future the parties cannot agree on expanded visitation."
Accordingly, we cannot say the decision to delegate some authority
to Clinical Alternatives to oversee and/or assess present
visitation and recommend future visitation was plainly wrong or
without evidence to support it.
ISSUE III: ALLOWING FATHER TO REPORT AND MONITOR
Mother contends the trial court erred by allowing father to
monitor his own counseling and by ordering father to report any
behavior problems by the child to wife or others.
"Rule 5A:18 requires that objections to a trial court's
action or ruling be made with specificity in order to preserve
an issue for appeal." Collado v. Commonwealth, 33 Va. App. 356,
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367, 533 S.E.2d 625, 631 (2000). The purpose of Rule 5A:18 is
to ensure that the trial court and opposing party are given the
opportunity to intelligently address, examine, and resolve
issues in the trial court, thus avoiding unnecessary appeals and
reversals. Kaufman v. Kaufman, 12 Va. App. 1200, 1204, 409
S.E.2d 1, 3-4 (1991); Lee v. Lee, 12 Va. App. 512, 514, 404
S.E.2d 736, 737 (1991) (en banc).
Wife claims she preserved Issue III in her objections to
the final decree of divorce. A review of this document fails to
show she preserved that issue. Although mother objected to
"Dr. Nelson's involvement in the duty to report unusual
behaviors," mother failed to object to father's role of
notifying "the mother, [father's] attorney or Dr. Nelson."
Because wife failed to indicate where and if she preserved this
issue, Rule 5A:18 precludes appellate review. Moreover, due to
the thorough and intense amount of supervision and oversight by
the trial court and Clinical Alternatives in working with the
parties, the record does not reflect any reason to invoke the
good cause or ends of justice exceptions to Rule 5A:18.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
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