Virginia Lawyers Weekly VA Lawyers Weekly
A man who was “Mr. Mom” to his four sons after he lost his job in 2009 said a divorce court’s award of custody to his wife violated his right to equal protection, but the Virginia Court of Appeals disagreed.
Joseph Wiencko Jr. was a mechanical engineer who served as a consultant to the telecommunications industry until he lost his last job in 2009. He had the children involved in a variety of activities, including academic competitions and Boy Scouts, according to his attorney, Winchester lawyer Marilyn Ann Solomon.
When Wiencko and his wife, concert violinist Akemi Takayama, divorced after separating in 2011, the trial court said both parents were “very concerned” about the children’s welfare. But Frederick County Circuit Judge John E. Wetsel Jr. rejected the father’s bid for custody, granting primary physical custody to the mother.
Wetsel acknowledged the father’s extensive role in caring for the children, including preparing meals, handling laundry and running errands, as well as his loving relationship with his sons. However, he faulted the father for “unilaterally” deciding to become a “stay at home Father” after he lost his last consulting contract.
The trial judge said the father “withdrew from the adult world of employment” and “totally abrogated his responsibility to physically provide for his family.” Wetsel acknowledged the children were engaged in “a wide range of activities designed to develop their intellectual, social, and spiritual life,” but said the father had “returned to his childhood.”
“If granted custody, the Father plans to return to his childhood home in Herndon to live with his mother, thereby completing his retreat from the adult world,” Wetsel said.
What if the parents’ roles had been reversed, the father wondered. If the mother had decided to stay at home after losing a series of concert bookings, would she have been hailed for sacrificing her brilliant career?
A simple gender swap would not necessarily demonstrate illegal bias, according to the Court of Appeals’ view of the custody decision.
“Divorce cases involve such widely varying factual situations,” wrote Judge Stephen R. McCullough, and the statutory standard governing custody decisions, “is so broad and flexible,” that custody decisions cannot be lined up like the kind of comparators used, for example, in employment discrimination cases.
The trial court also looked to a psychologist’s parental capacity evaluation that described the father’s “narcissistic quality,” “rigid, inflexible style” and “one size fits all” approach to parenting. A guardian ad litem appointed for the children recommended sole legal and physical custody to the mother, which the trial court did not entirely follow.
This case did not involve a father who “by mutual consent sacrificed a career in favor of assuming a caretaker role,” McCullough said. The trial court simply noted “the negative impact of father’s assumption of a provider role followed by a unilateral decision on his part to abandon that provider role to stay home with the children,” according to the panel’s July 23 decision in Wiencko v. Takayama (VLW 013-7-200).
However, the father won reversal of the court’s equitable distribution award that granted the mother the entire marital share of her retirement accounts. McCullough said the trial court erred in considering the father’s separate property when dividing the retirement accounts.
The parties had both put away money, Solomon said, and the father had a substantial amount of retirement savings before he married. He used his separate funds for a down payment on the marital home and for support while he was not employed.
Awarding the mother the entire $68,000 marital share of retirement accounts in her name required reversal, the appeals court said, because the award depended, at least in part, on the fact that the father had separate retirement accounts.
Under Virginia equitable distribution law, “it doesn’t matter if it’s Donald Trump, the court is not allowed to look at separate property” of the husband, Solomon said.
Peter W. Buchbauer, the Winchester lawyer who represented Takayama, the mother, said the trial court went through the process of classifying the multiple retirement accounts as his, hers and marital, and then went on to make its equitable distribution award. There is no presumption of a 50-50 split of marital property, so a trial court has the discretion to award one spouse a larger share.
Given the broad discretion, it’s possible the court may arrive at the same result on remand, he said.
