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SESSOMS v. MYER


SESSOMS v. MYER

(unpublished)


MAY 25, 1999

WILLIAM SESSOMS

v.

BARBARA ELIZABETH MYER

FROM THE CIRCUIT COURT OF THE CITY OF
CHARLOTTESVILLE

Jay T. Swett, Judge

Present: Chief Judge Fitzpatrick, Judges Willis
and Bumgardner

Argued at Salem, Virginia

MEMORANDUM OPINION[1] BY JUDGE
RUDOLPH BUMGARDNER, III

Annie Lee Jacobs (Tracey C. Hopper; Parker,
McElwain & Jacobs, P.C., on briefs), for appellant.

Patricia M. Brady for appellee.


William Sessoms appeals a final decree of
divorce awarding Barbara Elizabeth Myer physical custody of their
daughter, child and spousal support, and attorney’s fees. He
argues that the trial court erred (1) in authorizing the wife to
petition for a custody review without needing to prove a change
in circumstances; (2) by ordering visitation not in accordance
with the recommendation of his experts; (3) in failing to impute
income to the wife; (4) in ruling that wife had a need for
support and attorney’s fees; and (5) in calculating child and
spousal support. She appeals the decisions (6) directing her to
reside in the Charlottesville-Albemarle area for at least three
years and (7) admitting certain expert testimony not revealed
during discovery. We conclude that the trial court erred in
authorizing the wife to petition for review without having to
show a change of circumstances, in limiting the custody order to
three years, and in calculating the support. We conclude the
trial court did not err on the other issues.

The wife left her job in California where she
earned $31,200 as a television production assistant and moved to
Charlottesville where the parties married in 1994. The wife had
various lower paying jobs ranging from temporary secretarial work
to creative writing, but she never worked full-time after their
daughter was born in June 1996. The couple had serious marital
problems before the birth of their daughter, but in January 1997
without any notice to her husband, the wife filed for divorce,
took their child, and left for Colorado. She had never lived
there, but most of her family was living there. She resided with
her father and was able to get a job from her sister that allowed
her to keep her daughter with her while she worked.

Both parties wanted custody. The husband
stressed that it was very important that both parents have
frequent and regular contact with their child and that it was in
her best interest to see both parents on a reasonably frequent
basis. He wanted to visit her during the week and to have
overnight visitation during the week and every other weekend. The
wife wanted to live in Colorado, work, and raise her daughter
there.

The wife returned to Virginia for a pendente
lite hearing in February 1997. The trial court awarded the
parties joint legal custody, gave the wife physical custody, but
ordered her to remain in the Charlottesville area. The husband
was awarded visitation for several hours, five days a week and
every other weekend. In August 1997, the court increased
husband’s visitation by several hours each week.

The trial was held January 22, 1998 on all
matters of custody, visitation, child support, spousal support,
and attorney’s fees. The parties settled the equitable
distribution issues. After hearing extensive evidence including
five experts, the trial court awarded physical custody to the
wife provided she remained in the Charlottesville area. It
limited the restriction to three years and ruled that the wife
could petition for a change in the custody order without showing
a material change in circumstances.
[2]

The husband contends the trial court erred when
it allowed the wife to seek review in three years without having
to establish a material change in circumstances. The wife
contends the trial court erred when it required her to reside in
the Charlottesville area. We affirm the decision of the trial
court awarding physical custody to the mother and restricting her
to the area. However, we conclude that the trial court erred in
limiting the custody order to three years and in authorizing the
wife to petition for modification without showing a change in
circumstances.

Courts are authorized to prohibit custodial
parents from removing a child from the state, see Carpenter
v. Carpenter
, 220 Va. 299, 302, 257 S.E.2d 845, 848 (1979),
or to permit such removal. See Gray v. Gray, 228
Va. 696, 698-99, 324 S.E.2d 677, 678 (1985). When the trial court
bases its decree on the best interest of the child, it will not
be reversed unless plainly wrong or without evidence to support
it. See Scinaldi v. Scinaldi, 2 Va. App. 571, 573,
347 S.E.2d 149, 150 (1986); Gray, 228 Va. at 698-99, 324
S.E.2d at 678; Carpenter, 220 Va. at 302, 257 S.E.2d at
848.

The trial court found that both parents cared
deeply for the child and that neither parent wanted to keep the
child from the other parent. The trial court found husband’s
evidence regarding the importance of a strong relationship
between father and child during the early years credible and gave
it great weight. Consequently, the court ruled that it was in the
child’s best interest during the early years "to be
able to be with and see her father on a reasonably frequent
basis."

The evidence supported the conclusion of the
trial court that the child’s relationship with the father
would not be maintained at the same level if it permitted the
mother to take her to Colorado. The added difficulty of
maintaining a relationship between the child and the 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." Scinaldi, 2 Va. App. at 575,
347 S.E.2d at 151. Here, the trial court did not abuse its
discretion because it was in the child’s best interest to
order the mother and child to stay in Virginia.

The trial court stressed that it based its
decision on custody and to restrict the mother to the area
"primarily due to the young age of the child." While it
may be inevitable that circumstances will change in three years
as the child reaches school age, the court cannot make that
determination prospectively. It must first find a material change
of circumstances before it modifies a custody decree. See Bostick
v. Bostick-Bennett
, 23 Va. App. 527, 536, 478 S.E.2d 319, 323
(1996) (increased certainty regarding custodial parent’s
impending move is not a change in circumstances); Turner v.
Turner
, 3 Va. App. 31, 36, 348 S.E.2d 21, 23-24 (1986) (the
"paramount concern [is] the best interests of the child at a
given point in time, recognizing that it may become appropriate
to make a change in the future"). A custody decision is res
judicata of the issue unless there is a material change of
circumstances. See Hiner v. Hadeed, 15 Va. App.
575, 580, 425 S.E.2d 811, 814 (1993). We conclude that the trial
court erred by limiting the duration of the custody order, and we
reverse the decision to prospectively limit its restriction on
the wife’s residence to three years.

Similarly, we conclude that the trial court
erred when it relieved the wife of the burden of proving a change
in circumstances when she petitioned for review of the custody
decision. When modifying a decree that denied permission to
remove a child from the state, the trial court applies a two-part
test: a material change in circumstances since the last custody
award, and a determination that relocation is in the child’s
best interest. See Keel v. Keel, 225 Va. 606, 611,
303 S.E.2d 917, 921 (1983); Parish v. Spaulding, 26 Va.
App. 566, 573, 496 S.E.2d 91, 94 (1998), aff’d, 257 Va.
357, ___ S.E.2d ___ (1999); Bostick, 23 Va. App. at 535,
478 S.E.2d at 523. Here, the trial court lacked authority to
alter the two-part Keel test. A petition for modification
of a custody decree must include a showing of a change in
circumstances.

The husband next assigns as error the refusal
of the trial court to follow the experts’ recommendation
regarding visitation. "[T]he best interests of the child are
paramount" in determining visitation of a non-custodial
parent. Wilson v. Wilson, 12 Va. App. 1251, 1254,
408 S.E.2d 576, 578 (1991) (citation omitted). Determination of
visitation rights is a matter of judicial discretion. See Eichelberger
v. Eichelberger
, 2 Va. App. 409, 412, 345 S.E.2d 10, 11
(1986). When the trial court considers all the factors outlined
in Code Sect. 20-124.3, "it is not ‘required to
quantify or elaborate exactly what weight or consideration it has
given to each of the statutory factors.’" Sargent v.
Sargent
, 20 Va. App. 694, 702, 460 S.E.2d 596, 599 (1995)
(quoting Woolley v. Woolley, 3 Va. App. 337, 345, 349
S.E.2d 422, 426 (1986)). "It is well established that the
trier of fact ascertains [an expert] witness’ credibility,
determines the weight to be given 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).

While it may be ideal for a child to have daily
contact with both parents, this is not always practical when the
parties are divorced. The trial court considered all relevant
factors, carefully weighed the extensive evidence from four
experts, and attempted to establish a stable routine for the
child. It gave the father liberal visitation rights. Though it
did not grant visitation every day, the father received weekend
overnight visitation, frequent visitation during the week, and
some overnight visitation during the week. The trial court acted
within its discretion when it declined to follow the precise
recommendations of the husband’s experts. It was not
required to adopt totally the views of expert witnesses, and the
evidence supported the visitation schedule established by the
trial court.

The husband argues that the trial court erred
in refusing to impute income to the wife when determining both
spousal and child support. Code Sects. 20-107.1(1) and
20-108.1 set forth the factors that the trial court is to
consider in making spousal and child support determinations.
Support decisions rest within the sound discretion of the trial
court and will not be reversed unless plainly wrong or
unsupported by the evidence. See Bennett v. Dep’t of
Social Servs., Div. of Child Support Enforcement
, 22 Va. App.
684, 691, 472 S.E.2d 668, 672 (1996); Calvert v. Calvert,
18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994).

We view the evidence in the light most
favorable to the wife, the prevailing party below. See Cook
v. Cook
, 18 Va. App. 726, 731, 446 S.E.2d 894, 896 (1994).
The evidence established that the mother’s last full-time
job was in 1994 when she earned an annual income of $31,200 in
California as a television production assistant. The
husband’s vocational expert testified that the wife could
earn $30,000 to $40,000 based on her resume and the opportunities
available in the Charlottesville area. This expert, however,
identified no jobs actually available to the wife. The wife
testified that she unsuccessfully sought employment upon moving
to the area but had only worked intermittently since then. She
testified there were no jobs available in her field of television
production. Except for minimum-wage jobs, the evidence of job
availability and pay was conflicting. The wife did not feel it
practical to earn minimum wage and pay for day care when she
could personally care for the young child herself. The husband
testified that he did not "particularly like the option of
day care . . . ."

The trial court did not abuse its discretion in
refusing to impute income to the wife. See Saleem v.
Saleem
, 26 Va. App. 384, 494 S.E.2d 883 (1998) (no error in
refusing to impute where custodial parent was asked to resign her
prior employment); Bennett, 22 Va. App. at 691-92, 472
S.E.2d at 672 (no error where age of child and circumstances did
not permit custodial parent to be gainfully employed); Theismann
v. Theismann
, 22 Va. App. 557, 573, 471 S.E.2d 809, 816-17
(1996). Not being permitted to return to Colorado limited the
employment and earning potential of the wife while the child was
very young. Both parties emphasized the importance to them of
both the father and mother having close contact during the early
development of their daughter. Given the age of the child, the
wife’s role as a full-time mother before the separation, and
the limitation placed on her so the child could enjoy a
substantial relationship with both parents, the trial court did
not abuse its discretion in refusing to impute income to the
wife. See Brody v. Brody, 16 Va. App. 647, 651, 432
S.E.2d 20, 23 (1993) (need evidence of recent past earnings). She
was entitled to continue the lifestyle to which she was
accustomed during the marriage. See Srinivasan v.
Srinivasan
, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990).

The husband next contends that the trial court
erred in awarding the wife spousal support and attorney’s
fees and in ordering him to pay more than his ability to pay. The
trial court ordered the husband to pay $850 in spousal support
and $680 in child support. He contends that the trial court erred
in finding he had the ability to pay. We disagree.

Evidence was presented on all statutory
factors, including the parties’ agreed upon equitable
distribution payments and the duration of the marriage. In
addition to his salary of $63,000, the husband had equity in his
home, a retirement plan, and $14,000 in an IRA account. The wife
had spent her IRA and was $4,500 in debt. The parties were not
financially equal. The wife made a financial and career sacrifice
in moving to Charlottesville. It was a proper exercise of
discretion to award spousal support and attorney’s fees. The
award of spousal support and attorney’s fees is within the
sound discretion of the trial court and will not be reversed on
appeal unless injustice results. See Brooks v. Brooks,
27 Va. App. 314, 498 S.E.2d 461 (1998); Lightburn v. Lightburn,
22 Va. App. 612, 620, 472 S.E.2d 281, 285 (1996) (wife’s
sacrifice in moving is appropriate consideration for spousal
support determination).

The wife concedes that the trial court erred in
failing to account for the spousal support award before
calculating child support. See Code
Sect. 20-108.2(G)(1); Frazer v. Frazer, 23 Va. App.
358, 477 S.E.2d 290 (1996). We remand this matter for
reconsideration of the child support award because any deviation
in the combined award is best determined by the trial court.

Finally, the wife contends that the trial court
erred in permitting the husband’s experts to testify because
the substance of their testimony was not disclosed in a timely
fashion, and the bases for their opinions were not fully
disclosed. We disagree.

The husband designated his experts on November
21, 1997, but he did not provide the details of their testimony
or the bases of their opinions. At the pretrial hearing December
11, 1997, the trial court extended the deadline for completing
discovery to December 31, 1997. On January 5, 1998, the husband
provided the wife a designation of the testimony of two of the
four experts. The trial court refused to exclude the experts from
testifying because it found the husband had substantially
complied with the discovery order. The trial court did exclude
their testimony concerning facts or opinions not stated in the
designation.

The wife presented no evidence that she made
any effort to depose or investigate the substance of their
testimony during the period of discovery. The trial court had the
discretion to modify the deadline for completing discovery. The
fact that the court sua sponte extended the date
for compliance with discovery, without more, is not an abuse of
discretion. Absent a showing of prejudice, there is no abuse of
discretion with respect to discovery issues. See Rakes
v. Fulcher
, 210 Va. 542, 546, 172 S.E.2d 751, 755 (1970).

The wife requests that this Court award her
attorney’s fees incurred during the appeal. Both parties
appealed from provisions of the final decree, and both prevailed
on certain issues. The appeals were not frivolous, and we find no
other reasons to justify ordering the husband to pay the
wife’s attorney’s fees incurred for this appeal. See
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d
98, 100 (1996). The motion is denied.

For the foregoing reasons, we reverse the trial
court’s order to the extent that it limited the duration of its
decree and relieved the wife of proving a change in circumstance
when petitioning for a review. We remand for recalculation of the
support award, and we affirm all other rulings.

Affirmed in part, reversed

and remanded in part,

reversed and final judgment in part.

 

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.

[2] The trial court
stated:

that primary physical custody shall be with
the mother, providing she resides in the
Charlottesville/Albemarle area; this restriction is to be in
place for a period of three years. After that time, if the
parties cannot reach an agreement as to where Ms. Myer
resides, Ms. Myer shall be able to return to this Court to
seek a review of this Court’s ruling regarding change of
residence without needing to prove a material change in
circumstances, but rather, the sole issue shall be what is in
the best interests of the child.

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