COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and
Bumgardner
Argued at Alexandria, Virginia
LUIGI DAVID VISSICCHIO
OPINION BY
v. Record No. 1038-97-3 JUDGE ROSEMARIE ANNUNZIATA
APRIL 28, 1998
MELISSA F. VISSICCHIO
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Glenn C. Lewis (Wendy H. Schwartz; Daniel G.
Dannenbaum; The Lewis Law Firm, on briefs),
for appellant.
Martin A. Gannon (David H. Fletcher; Gannon,
Cottrell & Ward, P.C., on brief), for
appellee.
Luigi David Vissicchio (father) appeals the circuit court's
divorce decree, claiming the court erred in awarding primary
physical custody of Emma Alessandra Vissicchio (Emma) to Melissa
F. Vissicchio (mother), in determining the visitation schedule,
and in calculating child support. Mother cross-appeals,
contending the court erred in refusing her request to reserve her
right to seek future spousal support. We affirm on the issues of
child custody, visitation, and child support, and reverse on the
issue of the reservation of the right to seek future spousal
support.
The parties married on July 3, 1993, and Emma was born on
March 30, 1995. Emma lived with mother after the parties
separated on November 7, 1995. The parties agreed that, during
the period of separation, father would have Emma every other
weekend and two nights during each week. Father filed for
divorce on February 1, 1996.
In April 1996, father moved to New York. Mother filed a
cross-bill on May 6, 1996. On July 10, 1996, the parties reached
an agreement, which the court entered as a pendente lite order,
that the parties would have joint legal custody and alternate
holidays and that father would have visitation with Emma in New
York from the second to the third Saturdays of each month.
Pursuant to agreement between the parties, the court
appointed Dr. Stanton E. Samenow to evaluate the parties and
recommend a custody arrangement. Dr. Samenow interviewed the
parties and their families, conducted psychological testing, and
reviewed documents relating to custody of Emma. Dr. Samenow
recommended joint legal custody with primary physical custody
with mother. Dr. Samenow recommended that father have visitation
with Emma from the second Saturday to the third Saturday of each
month and that the parties should alternate holidays.
After a hearing, the court stated, "I have, in fact,
reviewed the appropriate sections of the Virginia Code and
considered those things which the Code directs that I consider in
reaching the conclusions which I have reached." The court found
as a fact that father's income was $115,000 per year, that
mother's income was $33,519 per year and that the cost of child
care was $785 per month; the court directed the parties to
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calculate the appropriate child support under the guidelines.
The court ordered that the parties would have joint legal
custody, that father would have visitation from the second
Saturday to the third Saturday of each month, and that the
parties would alternate holidays.
I.
Child Custody
Father's principal contention is that the trial court erred
in awarding primary physical custody to wife. In issues of child
custody, "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). A trial court's
determination of a child's best interests "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). In reviewing
the decision of the trial court, we view the facts in the light
most favorable to mother, the prevailing party below. Hughes v.
Gentry, 18 Va. App. 318, 321-22, 443 S.E.2d 448, 451 (1994)
(citing Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237
(1988)).
In determining the best interests of the child, the court
must consider the factors enumerated in Code § 20-124.3. "As
long as the trial court examines the factors, it is not 'required
to quantify or elaborate exactly what weight or consideration it
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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)). The court's findings, however, "must have some
foundation based on the evidence presented." Woolley, 3 Va. App.
at 345, 349 S.E.2d at 426.
A.
Dr. Samenow's Report
Father's first argument in support of his contention that
the court abused its discretion in awarding primary physical
custody to mother is that Dr. Samenow's report was seriously
flawed because Dr. Samenow did not spend sufficient time
gathering facts and because he made "irrational" recommendations.
The weight to be given to the opinion of an expert is a question
for the trier of fact. Street v. Street, 25 Va. App. 380, 387,
488 S.E.2d 665, 668-69 (1997) (en banc). The court did not
explicitly rely on Dr. Samenow's report, but its order
substantially tracks Dr. Samenow's recommendations.
The court appointed Dr. Samenow to evaluate the parties upon
the agreement of both parties. Dr. Samenow traveled to New York
to conduct a home visit at father's home and interviewed six
members of father's family whom father had identified as
witnesses. He interviewed mother for roughly six and one-half
hours and father for roughly seven and three quarters hours. Dr.
Samenow conducted psychological tests on each party, reviewed
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roughly fifteen letters and court documents, and conducted phone
interviews with the parties' friends, counselors, and family
members. Dr. Samenow prepared a detailed twenty-page report
summarizing his findings and recommendations. On the basis of
his observations, Dr. Samenow concluded that primary physical
custody with mother would be in Emma's best interests.
Father alleges that Dr. Samenow's report was "inadequate"
because he only spent a few minutes discussing father's parenting
abilities with each person he interviewed. The record shows that
Dr. Samenow spent roughly three hours interviewing father's
family, in addition to reading letters some members of the family
submitted. He spent most of his interview with father's mother
discussing father's relationship with Emma, but discussed other
issues with other members of father's family, as appropriate.
Furthermore, at the conclusion of his investigation, Dr. Samenow
asked father if he should speak with anyone else and father
responded in the negative. Although Dr. Samenow met with both
counsel after presenting his report, neither party complained
that Dr. Samenow had failed to undertake necessary investigation.
Given the completeness of Dr. Samenow's investigation and
report, the trial court was within its discretion in finding the
report credible.
We find no merit in father's argument that Dr. Samenow's
report is internally contradictory with respect to visitation.
Father claims Dr. Samenow recommended that the parties have equal
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time with Emma in the summer, despite the fact that he made no
such recommendation in his report. Father's contention is based
on the testimony Dr. Samenow gave at trial. When father asked
Dr. Samenow if alternating two-week periods would be appropriate,
and Dr. Samenow replied, "Perhaps during the summer something
like that could be done." The trial court did not abuse its
discretion when concluding that this minor concession neither
superseded nor created an internal inconsistency in Dr. Samenow's
opinion.
B.
Mental Health of the Parties
Father's second argument in support of his claim that the
trial court abused its discretion in awarding primary physical
custody to mother is that the court failed to consider the mental
health of the parties as required by Code § 20-124.3(2).
Specifically, father alleges that mother has a history of
emotional problems, alcohol abuse, and thoughts of suicide.
The evidence at trial showed that in the late 1980's, while
mother was in college, mother's father suffered a debilitating
stroke. In response to her father's stroke, mother withdrew from
college for a short time and began drinking heavily. During this
time, mother had some suicidal thoughts but did not entertain
them seriously. After seeing a counselor, mother addressed her
issues with alcohol, returned to school, and graduated on time.
Mother was never diagnosed as alcohol-dependent or suicidal. Dr.
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Samenow testified that the interviews and testing which he
conducted demonstrated "[n]o basis whatsoever" for father's
allegations of continuing alcoholism and suicidal thoughts. The
evidence supports the trial court's implicit finding that mother
was neither suicidal nor alcoholic.
C.
Home Environment
Father's third argument that the trial court erred in
awarding primary custody to mother is that he offers a better
home environment for Emma than mother. In determining the best
interests of the child, the court must consider "[t]he
relationship existing between each parent and each child, giving
due consideration to the positive involvement with the child's
life, [and] the ability to accurately assess and meet the
emotional, intellectual and physical needs of the child." Code
§ 20-124.3(3). In addition, the court must assess "[t]he needs
of the child, giving due consideration to other important
relationships of the child, including but not limited to
siblings, peers and extended family members." Code
§ 20-124.3(4). Specifically, father contends his relationship
with Emma, his home life, and his day care plan are superior to
those offered by mother.
In addressing the parties' relationships with Emma, Dr.
Samenow testified that Emma has a strong relationship with both
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parties, but that the bond between Emma and mother was stronger
than the bond between Emma and father. Dr. Samenow reasoned that
mother had been Emma's primary caretaker and that father's move
to New York had interposed a barrier in the relationship between
father and Emma. Furthermore, Dr. Samenow pointed out that
father had moved to New York against the advice of Emma's
pediatrician. Emma's maternal grandmother testified that Emma
enjoys spending time with mother and described their daily
activities. Mother's friends described her relationship with
Emma as "[v]ery loving" and stated that Emma had "blossomed"
while living with mother. Although, as he argues, father may
have had a strong bond with Emma, credible evidence supports the
court's conclusion that mother had a stronger bond with Emma. We
accord great deference to the trial court's findings of fact and
will not disturb them unless they are plainly wrong or without
evidence to support them. Moreno v. Moreno, 24 Va. App. 190,
195, 480 S.E.2d 792, 795 (1997).
With respect to the parties' home lives, the record shows
that mother rises early and plays with Emma before taking her to
day care. Mother also has several hours in the evening to be
with Emma. Mother resides with her father and mother in a five
bedroom house with a backyard in Alexandria; the home is near a
park and a school where children can play. Although father may
offer a similarly appropriate home environment, credible evidence
establishes that mother offers Emma a suitable home environment.
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On the issue of day care, the record shows that the day care
center which Emma attends offers a variety of interesting
activities and that Emma enjoys attending the day care program.
Dr. Samenow noted that he was impressed by Emma's day care
facility and that the center has a 1:3 staff-to-child ratio. He
observed that Emma and the other children "appear well looked
after by an energetic, enthusiastic and devoted staff which keeps
the children occupied with a series of creative and educational
activities." Mother is able to pick Emma up from day care each
day at 5:00 p.m. Father, on the other hand, does not return home
from work until 7:30 p.m. Father testified that his employer had
approved a part-time schedule, but the schedule had not been
formalized at the time of trial. Based on our review of the
record, we find credible evidence that mother offers a positive
and appropriate day care setting for Emma.
D.
Support for the Non-custodial Parent's Relationship
Father's final argument regarding custody is that the trial
court's award of primary physical custody to mother was plainly
wrong in light of father's greater propensity to foster a strong
relationship with the non-custodial parent. Code § 20-124.3(6)
mandates that a trial court consider "[t]he propensity of each
parent to actively support the child's contact and relationship
with the other parent, the relative willingness and demonstrated
ability of each parent to maintain a close and continuing
9
relationship with the child, and the ability of each parent to
cooperate in matters affecting the child," in determining the
best interests of the child.
Father testified at length that mother had denied him access
to Emma. In addition, Dr. Samenow expressed concern that mother
was making "access to Emma more difficult for Mr. Vissicchio than
it should be." Dr. Samenow concluded, however, that mother would
accommodate Emma's relationship with father "[b]ecause, unlike
Mr. Vissicchio, Melissa Vissicchio will look in the mirror and
she will acknowledge that she has done things that she shouldn't
have done, and she made the statement to me that she was too
possessive. And when I talked to her again about this, she
recognized that she had been too possessive." Dr. Samenow also
observed:
Mr. and Ms. Vissicchio seem to agree on two
matters. One is that Emma should have both
parents in her life. The second is that they
are generally "cordial" in their
communication about Emma with respect to
nearly any matter except those dealing with
money or Emma's schedule when she is with
each parent. Each parent is so keenly
involved with Emma that any threat to their
time evokes a keen sense of potential loss.
With respect to the transitions that take
place at the airport, the two parents manage.
Gino remarked, "We're usually pretty good in
front of Emma." He also pointed out that
when either of them calls the other's home to
speak with Emma, there are no problems; Emma
is put on the phone. This provides some
evidence that for the sake of their daughter,
the two parents can at least temporarily
submerge their enmity and cooperate.
Sufficient evidence supports the trial court's decision.
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Father does not argue that the trial court failed to consider
this factor, but only that the trial court erred in not finding
in his favor on the basis of this factor. In the exercise of its
discretion, the court considered this factor, weighed it with
other factors, and awarded primary custody to wife.
We must decline father's invitation to weigh the evidence
and award him custody of Emma. If the decision of the trial
court is supported by the evidence, "we are not permitted to
substitute our judgment for that of the chancellor." Stainback
v. Stainback, 11 Va. App. 13, 23, 396 S.E.2d 686, 692 (1990).
Father has failed to demonstrate that the trial court abused its
discretion.
II.
Visitation
Father next contends the trial court erred by granting him
insufficient visitation with Emma. In determining visitation of
a non-custodial parent, as in custody issues, "the best interests
of the child are paramount." Wilson v. Wilson, 12 Va. App. 1251,
1254, 408 S.E.2d 576, 578 (1991) (citing M.E.D. v. J.P.M., 3 Va.
App. 391, 396, 350 S.E.2d 215, 219 (1986)). Determination of
visitation rights is a matter of judicial discretion.
Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10,
11 (1986). The court must, however, consider all the factors
outlined in Code § 20-124.3. Sargent, 20 Va. App. at 701, 460
S.E.2d at 599.
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Father argues the trial court should have awarded him
visitation for one-half of Emma's time, at least in the summer,
on the ground that Emma is attached to him, that Emma has strong
bonds with father's extended family, and that Dr. Samenow
recommended a one-half time arrangement. Dr. Samenow testified,
however, that Emma "had to have a primary residence; a base one
place or another." He also testified that, according to Emma's
pediatrician, "if there were long periods away from that home
base, it would disrupt her, certainly from the standpoint of
routine, and in other ways." Finally, Dr. Samenow did not
recommend a one-half time arrangement but merely stated after
husband asked Dr. Samenow if alternating two-week periods would
be appropriate, that, "Perhaps during the summer something like
that could be done."
Thus, applying the standard of review which governs this
Court's decisions, we find that the evidence in the record
supports the trial court's decision to establish a primary
residence for Emma. Ordering visitation of one-quarter of Emma's
time, plus alternating holidays, was within the court's
discretion. Eichelberg, 2 Va. App. at 412, 345 S.E.2d at 11.
III.
Child Support
Father contends the trial court erred in not deviating from
the child support guidelines. The determination of child support
is a matter of discretion for the trial court, "and such awards
12
will not be reversed on appeal unless plainly wrong or
unsupported by the evidence." Young v. Young, 3 Va. App. 80, 81,
348 S.E.2d 46, 47 (1986). "A rebuttable presumption exists that
the amount derived from the guidelines, Code § 20-108.2, is
correct." Auman v. Auman, 21 Va. App. 275, 277, 464 S.E.2d 154,
155 (1995).
At trial, the court made findings of fact as to the income
of each party and the cost of day care, and asked the parties to
calculate the guidelines amount. In the final decree, the court
ordered father to pay $1,495 per month in child support and
ordered that father should bear his own transportation costs.
Father argues the court should have deviated from the
guidelines to account for father's transportation costs. The
court was aware of father's transportation costs and in the final
decree, ordered him to bear those costs. Although
"[a]rrangements regarding custody of the children" are a
permissible basis for deviation under Code § 20-108.1(2), father
cites no authority for the proposition that the trial court was
required to deviate from the guidelines. In short, father has
not overcome the statutory presumption that the guidelines
calculation was correct. Code § 20-108.1(B); Auman, 21 Va. App.
at 277, 464 S.E.2d at 155.
Father also argues the trial court erred in failing to
deviate from the guidelines on the basis that father's eight-day
visitation with Emma in New York would decrease mother's day care
13
cost. Father did not present this issue to the trial court and
is thus barred from asserting it on appeal. Rule 5A:18.
Furthermore, the record does not reveal any evidence that Emma's
time in New York reduced the monthly day care cost.
IV.
Reservation of Right to Seek Future Spousal Support
Mother argues the trial court erred in denying her request
to reserve her right to seek future spousal support in the event
of a change in circumstances. This Court has "held that where
there is no bar to the right of spousal support 'it is reversible
error for the trial court, upon request of either party, to fail
to make a reservation in the decree of the right to receive
spousal support in the event of a change of circumstances,' even
though, at the time of the decree, neither party needed support."
Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990)
(quoting Bacon v. Bacon, 3 Va. App. 484, 491, 351 S.E.2d 37, 41
(1986)).
In her pleadings, mother requested permanent spousal
support. At trial, mother also asked for spousal support.
Mother requested to reserve the right to receive spousal support
in the event of a change in circumstances by including a
reservation in the final decree, which she prepared. The court
deleted mother's reservation of the right to seek spousal support
in the future from the final decree, but failed to explain the
basis for its denial of her reservation. Father did not argue on
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the briefs that the denial was proper.
While mother did not explicitly request a reservation of the
right to seek spousal support at trial, but rather sought only
spousal support, her request for spousal support implicitly
contained a request for future spousal support, as events
warranted, as well as a request for immediate support. Finding
no legal barrier to spousal support for mother, we conclude that
the court erred in refusing her request to reserve the right to
receive spousal support in the event of a change in
circumstances. Blank, 10 Va. App. at 4, 389 S.E.2d at 724
15
(citing Bacon, 3 Va. App. at 491, 351 S.E.2d at 41). We remand
so that the circuit court may enter an appropriate order.
Affirmed in part,
reversed in part,
and remanded.
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