Deborah C. Thomas v. John R. Thomas ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued at Alexandria, Virginia
DEBORAH C. THOMAS
MEMORANDUM OPINION * BY
v. Record No. 2421-97-4 JUDGE JERE M. H. WILLIS, JR.
APRIL 28, 1998
JOHN R. THOMAS
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Frank A. Hoss, Jr., Judge
Sandra L. Havrilak (Hicks & Havrilak, P.C.,
on brief), for appellant.
Ann B. Vance (Carr & Vance, P.C., on brief),
for appellee.
This appeal arises from an order resolving child custody
issues raised by Deborah C. Thomas (the mother) and John R.
Thomas (the father). The mother contends that the trial court
erred in awarding the parties joint custody of their children,
and in refusing to enter an order restraining the father from
consuming alcohol while he cares for the children. We affirm the
judgment of the trial court.
The parties were married on June 6, 1981, and separated in
1994. They have two minor children.
On February 12, 1997, the father filed a bill for divorce.
On March 4, 1997, the mother filed a cross-bill, also seeking a
divorce. On August 5, 1997, the trial court conducted an ore
tenus hearing on custody, visitation and other matters concerning
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the parties' children.
Both parties acknowledged their inability to communicate
well during the marriage. The mother testified that they engaged
in shoving, hitting, pushing and yelling. She testified that in
October of 1996, she initiated a physical altercation with the
father and slapped him as hard as she could. The father
retaliated and hit her in the jaw. Both parties admitted that
this conduct was inappropriate and testified that there has been
no recurrence.
The father admitted that he consumed alcohol "a little bit
more than [he] should have" prior to the parties' separation and
that he had smoked marijuana frequently. In 1993, he was
convicted of public drunkenness. In 1991, he was charged with
driving while intoxicated and was convicted of reckless driving.
He admitted that a previous employer had confronted him
concerning his use of alcohol. However, he testified that he
consumes alcohol now only in moderation and that he stopped
smoking marijuana in October, 1996.
The trial court awarded the parties joint legal custody of
the children. It denied the mother's request to restrain the
father from consuming alcohol while the children were in his
care.
I.
The mother contends that the trial court erred in awarding
joint legal custody of the children.
In matters of a child's welfare, trial courts
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are vested with broad discretion in making
the decisions necessary to guard and to
foster a child's best interests. 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.
Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)
(citations omitted). See Code § 20-124.2(B) ("In determining
custody, the court shall give primary consideration to the best
interests of the child.").
A.
The mother argues that the trial court failed to give proper
consideration to the parties' inability to communicate and
cooperate. In determining the best interests of the children for
purposes of custody, the trial court must consider "the ability
of each parent to cooperate in matters affecting the child."
Code § 20-124.3(6).
In Commonwealth, Dep't of Soc. Servs. v. Ewing, 22 Va. App.
466, 470 S.E.2d 608 (1996), we affirmed the trial court's denial
of the father's request for joint custody, based upon the
parties' lack of communication concerning the child. The
evidence included testimony that the parties had resorted to the
use of a neutral third party to facilitate the delivery of the
child for the father's visitation and that communication between
the parties during delivery was nonexistent. Id. at 473, 470
S.E.2d at 612.
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The evidence in this case established that the father has
maintained regular visitation with the children since October,
1996. The visitation schedule included visits by the father at
the mother's residence every Thursday. Despite the lack of
amicable relations between the parties, they were able to
communicate on matters concerning the children's education,
discipline, holidays and health.
Cooperation and communication by the parents in matters
affecting the children are vital to securing the children's best
interests. The trial court acknowledged the importance of
communication and cooperation and expressed its belief that the
parties would be able to communicate and cooperate. It urged
them to do so. Under the circumstances, the trial court's
determination that joint legal custody was in the best interests
of the children was not plainly wrong and was supported by the
evidence.
B.
The mother argues that the trial court failed to give proper
consideration to the parties' "history of family abuse" 1 in
determining custody. See Code § 20-124.3(8). Because it
jeopardizes the best interests of the children, physical
hostility between the parents may preclude an award of joint
1
"Family abuse" is defined as "any act of violence . . .
which results in physical injury or places one in reasonable
apprehension of serious bodily injury and which is committed by a
person against such person's family or household member." Code
§ 16.1-228.
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custody. See id. In In re Marriage of Brainard, 523 N.W.2d 611(Iowa Ct. App. 1994), the Court of Appeals of Iowa noted that:
Children raised in homes touched by domestic
abuse are often left with deep scars,
revealed in the form of increased anxiety,
insecurity and a greater likelihood for later
problems in interpersonal relationships. The
evidence also revealed that children who
stand as observers to domestic abuse may
develop a low self-esteem and achieve less
academic success. Moreover, domestic abuse
places children at a greater risk of being
physically abused.
Id. at 615.
The trial court heard and observed the parties' testimony
concerning their physical conflicts. It heard their testimony
that they regretted this inappropriate behavior and that they had
not engaged in such conduct since October, 1996. The trial court
considered the statutory factors and determined that joint
custody was in the children's best interests. We find no abuse
of discretion.
II.
The mother contends that the trial court erred in denying an
order restraining the father from consuming alcohol while he was
caring for the children.
Under familiar principles we view [the]
evidence in the light most favorable to the
prevailing party below. Where, as here, the
court hears the evidence ore tenus, its
finding is entitled to great weight and will
not be disturbed on appeal unless plainly
wrong or without evidence to support it.
Martin v. Pittsylvania County Dep't of Soc. Servs., 3 Va. App.
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15, 20, 348 S.E.2d 13, 16 (1986) (citation omitted).
Abuse of alcohol by a parent may pose serious concerns
warranting action by the trial court to protect the best
interests of the children. See Code § 20-124.3(2), (9)
(considering the physical and mental condition of each parent in
determining custody and visitation arrangements); Code § 20-124.2
("[t]he court shall have the continuing authority and
jurisdiction to make any additional orders necessary to
effectuate and enforce" its custody and visitation orders).
The trial court heard the parties' testimony concerning the
father's consumption of alcohol, and found "no necessity" to
enter an order restraining the father's consumption of alcohol.
The record supports this finding.
Affirmed.
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