BOTTOMS v. BOTTOMS


BOTTOMS

v.

BOTTOMS

(unpublished)


JUNE 29, 1999

Record No. 0589-98-2

SHARON LYNNE BOTTOMS

v.

PAMELA KAY BOTTOMS

FROM THE CIRCUIT COURT OF HENRICO COUNTY

Buford M. Parsons, Judge

Present: Judges Elder, Lemons and Senior Judge
Cole

Argued at Richmond, Virginia

MEMORANDUM OPINION* BY JUDGE MARVIN
F. COLE

Donald K. Butler (Mary Bauer; Michael P. Adams;
Matthew Coles; Morano, Colan and Butler; American Civil Liberties
Union Foundation of Virginia; Lesbian and Gay Rights Project,
American Civil Liberties Union Foundation, on brief), for
appellant.

Maureen L. White (Richard R. Ryder;
Theodore N. I. Tondrowski, on brief), for appellee.


In this domestic relations cause, Sharon Lynne
Bottoms (mother) challenges a decision of the Henrico County
Circuit Court establishing her visitation rights with Tyler
Doustou, who is in the custody of Pamela Kay Bottoms
(grandmother). Mother contends that the trial court erred when:
(1) as a condition of mother’s visitation, it excluded all
contact between Tyler and April Wade; (2) it denied mother’s
request to participate more fully in Tyler’s educational
development; (3) it denied mother’s request for expanded
visitation rights; and (4) it failed to order family counseling.
We find no merit to these claims and affirm.

In Bottoms v. Bottoms, 249 Va. 410, 419,
457 S.E.2d 102, 107 (1995), the Supreme Court of Virginia found
that mother was unfit and remanded the case to the Henrico County
Circuit Court to award custody of Tyler to grandmother. Later
that same year, mother filed a petition for modification of
custody and visitation of her son in the Henrico County Juvenile
and Domestic Relations District Court. At the conclusion of the
proceeding in the district court, the court denied the petition
for transfer of custody and declined to rule on the request for
expanded visitation and family counseling. Mother appealed this
decision to the circuit court, expressly withdrawing her petition
for custody and challenging only the visitation adjudication.
Following a hearing, the circuit court issued its order, which
placed a number of restrictions on visitation between mother and
Tyler. Mother appealed this order to the Court of Appeals.

In an unpublished opinion, this Court reversed
the order of the circuit court. See Bottoms v. Bottoms,
No. 2157-96-2 (Va. Ct. App. July 29, 1997). Believing that the
circuit court thought it was required to dispose of the
visitation question based solely on mother’s sexual
orientation, and then ignored other pertinent factors, this Court
reversed the circuit court and remanded the matter "for
reconsideration of the evidence consistent with this opinion,
including any additional evidence deemed appropriate by the court
to a proper disposition of the petitions." Id., slip
op. at 6.

On remand, an evidentiary hearing was held
before the circuit court on February 23, 1998. Five witnesses
provided testimony to the court in connection with the visitation
petition. The guardian ad litem for the infant son
gave a report to the court. On March 4, 1998, the circuit court
entered an order requiring that all visitation "shall occur
outside the presence of April Wade, it being expressly provided
that Sharon Bottoms will permit no contact between Tyler and
April Wade." Mother’s petition was denied in all other
respects, except that she was granted two weeks visitation
instead of one in the summer.

Mother contends that there is no substantial
evidence supporting the circuit court’s decision to continue
excluding Wade from contact with Tyler and claims that the
visitation exclusion violates Virginia law, as well as
firmly-established guarantees of the Equal Protection Clause and
the Due Process Clause of the Fourteenth Amendment of the United
States Constitution. These constitutional arguments were not made
in the trial court, and the trial judge was never asked to rule
on them. Further, mother filed written objections to the circuit
court order of March 4, 1998, and no objection was made to the
order on any constitutional grounds.

Rule 5A:18 serves an important
function during the conduct of a trial. It places
the parties on notice that they must give the
trial court the first opportunity to rule on
disputed evidentiary and procedural questions.
The purpose of this rule is to allow correction
of an error if possible during the trial, thereby
avoiding the necessity of mistrials and
reversals. To hold otherwise, would invite
parties to remain silent at trial, possibly
resulting in the trial court committing needless
error.

Gardner v. Commonwealth, 3 Va. App. 418,
423, 350 S.E.2d 229, 232 (1986); see also Cottrell
v. Commonwealth
, 12 Va. App. 570, 574, 405 S.E.2d 438, 441
(1991) (Rule 5A:18 barred consideration of constitutional
question not raised in trial court); Jacques v. Commonwealth,
12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (Rule 5A:18
barred consideration of statutory argument not raised in trial
court). The ends of justice exception does not permit
consideration of the question because there has been no
miscarriage of justice. Cf. Reed v. Commonwealth, 6
Va. App. 65, 70, 366 S.E.2d 274, 277 (1988). Therefore, we do not
consider these constitutional issues. See Rule 5A:18.

In considering a petition to change child
visitation, the test to be applied has two prongs: (1) has there
been a change in circumstances since the most recent visitation
award; and (2) would a change in visitation be in the best
interests of the child. See Keel v. Keel, 225 Va.
606, 611-12, 303 S.E.2d 917, 921 (1983) (applying this standard
to petition for change in custody); Fariss v. Tsapel, 3
Va. App. 439, 442, 350 S.E.2d 670, 672 (1986) (applying same
standard to petition for change in visitation). Thus, despite
changes in circumstances, there can be no change in visitation
unless such change will be in the best interest of the child. The
second prong of the test is the most important because, in the
final analysis, the best interests of the child are what must be
protected by the court. See Keel, 225 Va. at
611-12, 303 S.E.2d at 921. The parties agree, and we find that
the circumstances have changed since the last award in the
circuit court on September 21, 1993, and we thus proceed to the
second prong of the Keel test to determine whether the
evidence supports the trial court’s ruling regarding
visitation.

Well-established principles guide our
deliberations. The judgment of the trial court is presumed to be
correct, and the burden is on him or her who assails it to show
that it is plainly wrong. See Forbes v. Haney, 204
Va. 712, 715, 133 S.E.2d 533, 535 (1963). "‘For
purposes of appellate review, a trial court’s determination
is considered to have settled all conflicts in the evidence in
favor of the prevailing party, and the prevailing party’s
evidence is entitled to all inferences fairly deducible
therefrom.’" Haase v. Haase, 20 Va. App. 671,
684, 460 S.E.2d 585, 591 (1995) (citation omitted). Because the
trial judge saw the witnesses, heard the evidence, has been in
close contact with the family situation for several years, has
had an opportunity to determine the credibility of the witnesses
and parties and the weight to be accorded their testimony, his
decision is peculiarly entitled to respect. See, e.g.,
Brooks v. Rogers, 18 Va. App. 585, 587, 445 S.E.2d 725,
726 (1994).

In determining the best interests of the child
in a visitation case, a court must consider all of the factors
set forth in Code Sect. 20-124.3. See Sargent v.
Sargent
, 20 Va. App. 694, 701, 460 S.E.2d 596, 599 (1995).
The failure to consider all of the factors applicable to the case
is reversible error. A trial court need not, however,
"‘quantify or elaborate exactly what weight or
consideration it has given to each of the statutory
factors.’" Id. at 702, 460 S.E.2d at 599
(citation omitted). We find no merit to mother’s argument
that the trial court must make specific findings of fact to
justify its decision.

In a letter addressed to counsel dated March 4,
1998, the trial judge stated that he had reviewed the evidence
and that "after careful consideration of all, it remains my
finding that the best interest of the child requires that the
visitation with his mother be out of the presence of April
Wade." This finding was embodied in an order entered on the
same day. The appellant objected to the "Court’s
rulings on specific visitation and the restrictions imposed,
specifically including the restrictions on visitation in the
presence of April Wade."

In support of the trial judge’s decision
to exclude all contact between Tyler and Wade, we review the
entire record. We commence with the Supreme Court’s decision
in Bottoms v. Bottoms, 249 Va. 410, 457 S.E.2d 102 (1995),
reversing the Court of Appeals and reinstating the Henrico County
Circuit Court decision which awarded custody to grandmother and
denied contact with Wade. The facts upon which the decision was
based are clearly set forth in the opinion. It is against this
background that we interpret the evidence before us.

Here, the evidence in the record supports the
trial court’s rulings excluding Wade from contact with Tyler
and refusing mother’s request for additional visitation. The
court indicated that it gave "careful consideration" to
"all" the evidence, which included undisputed testimony
that Tyler "is doing fine" under the current
arrangement. The record also contained expert testimony that
being able to observe mother interact with Wade might reduce
Tyler’s risk of developmental problems in the future.
However, the trial court was entitled to conclude that
information upon which the expert relied in forming his opinion
was unreliable and incomplete in that he did not interview the
child’s legal custodian and, therefore, it was entitled to
reject the expert’s opinion. See Street v. Street,
25 Va. App. 380, 387-89, 488 S.E.2d 655, 668-69 (1997) (en
banc). Further, Dr. Stolberg testified that Tyler was a
lot better now than he was several years ago. He was now
"healthy, friendly, upbeat, real friendly." The
guardian ad litem also opined that Tyler’s
best interests would be served by expanded visitation. Although
the recommendation of the guardian ad litem
"should not be disregarded," it is "not binding or
controlling." Bottoms, 249 Va. at 420, 457 S.E.2d at
108.

Viewing the evidence in the light most
favorable to the prevailing party below, we find that the trial
court did not abuse its discretion in refusing to modify its
order of August 20, 1996, requiring that "[v]isitation
shall occur outside the presence of April Wade, it being
expressly provided that Sharon Bottoms will permit no contact
between Tyler and April Wade."

Mother complains that the trial court erred
when it denied her request to participate in Tyler’s
educational development. She testified that she would like to
pick Tyler up at his school on her visitation day and talk to his
teachers.

Grandmother in her testimony objected to
mother’s picking Tyler up at school on the Friday when
mother has visitation. Grandmother stated that she likes to see
Tyler on Friday before he leaves for his visitation to assure
that he is properly dressed and in condition for the visit.
Grandmother also objected to mother’s attending PTA meetings
or having any physical meetings at the school. Grandmother
testified that mother received the same reports from the school
on Tyler that grandmother received. Grandmother had no objections
to mother’s contacting Tyler’s teacher directly by
telephone.

The trial court in its order of March 4, 1998,
directed that grandmother provide mother "all academic
records of the child, but such shall not be deemed to deny to
Sharon Bottoms access to records pursuant to Code
Sect. 20-124.6" which provides that
"[n]otwithstanding any other provision of law, neither
parent shall be denied access to the academic, medical, hospital
or other health records of that parent’s minor child unless
otherwise ordered by the court for good cause shown."

The authority vested in a trial
court to decide issues concerning the care,
custody, support and maintenance of the minor
children, the visitation rights of the
non-custodial parent, and the extent to which
those rights and responsibilities shall be
apportioned between estranged parents is a matter
of judicial discretion which courts must exercise
with the welfare of the children as the paramount
consideration.

Eichelberger v. Eichelberger, 2 Va. App.
409, 412, 345 S.E.2d 10, 11 (1986). We find that the trial court
did not abuse its discretion when it denied mother’s request
to participate in Tyler’s school activities against the
wishes of the child’s legal custodian.

Mother complains that the trial court erred
when it denied her request for expanded visitation rights and
failed to order family counseling. We find that both of these
issues come within the broad discretion granted to trial courts
to decide care, custody, and visitation rights of minor children.
Under the facts and circumstances of this case as previously
described herein, we find that the trial judge did not abuse his
discretion in establishing visitation rights between the mother
and the child, and we find that he did not abuse his discretion
in refusing to order family counseling.

For the reasons stated, we affirm the decision
of the trial court.

Affirmed.

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