COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
ELIZABETH SANDIDGE JONES
OPINION BY
v. Record No. 1675-97-1 JUDGE JOSEPH E. BAKER
FEBRUARY 24, 1998
STEVEN MARVIN JONES
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
Paul M. Lipkin (Goldblatt, Lipkin & Cohen,
P.C., on brief), for appellant.
Glenn R. Croshaw (Mark D. Stiles; Willcox &
Savage, P.C., on brief), for appellee.
Elizabeth Sandidge Jones (wife) contends that the Circuit
Court of the City of Virginia Beach (trial court), in a decree of
divorce, erroneously disregarded the recommendations of the
commissioner in chancery to whom the matter had been referred.
The issues on appeal are whether the trial court erroneously (1)
awarded physical custody of the parties' two minor children to
Steven Marvin Jones (husband), without first determining that the
commissioner's recommendation of joint physical custody was
unsupported by the evidence and (2) reduced the amount of wife's
attorney's fees to be paid by husband from $2,500 to $1,000, also
without finding the commissioner's recommendations unsupported by
the evidence. For the reasons that follow, we reverse the
judgment appealed from and remand this cause for further
consideration consistent with this opinion.
There is little, if any, disagreement over the facts upon
which the commissioner's recommendation was made. The parties
married on September 25, 1988. A son was born of the marriage in
1989, and husband adopted wife's daughter, who had been born in
1985. By agreement of the parties, wife stayed home to care for
the children rather than working during the marriage. The
parties separated in the fall of 1995. Pursuant to a pendente
lite order entered March 11, 1996, and a revised decree pendente
lite entered March 22, 1996, the parties exercised joint legal
custody of the children, with wife having primary physical
custody. The revised decree provided husband with visitation
during specific hours on alternate weekends and each weekday
afternoon.
Although wife preferred to stay home to care for the
children, the trial judge told her to get a job, and she began
working as a glass blower, which necessitated a change in the
custody/visitation arrangements. Her job required her to be at
work between 7:00 a.m. and 7:30 a.m., but her children did not
have to be at school until 8:20 a.m. Husband worked nights at
the Ford Motor Company plant from midnight to 8:30 a.m. and did
not arrive home until 8:45 a.m. or 9:00 a.m. Wife made
arrangements to get the children up between 6:30 a.m. and 7:00
a.m. and take them, still in their pajamas, to Frances Hart, the
mother of husband's cousin, whom wife paid to feed and dress the
children for school. Wife followed this practice so the children
could obtain as much sleep as possible. Mrs. Hart continued this
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routine for about a month. She stopped the practice because she
"didn't want to be in the middle" between husband and wife.
Thereafter, the parties arranged for wife to take the
children to husband's house each morning, where husband's live-in
nanny fed and dressed the children and took them to school.
Husband slept only three and one-half to four hours per night,
from 7:30 p.m. or 8:00 p.m. until getting up at 11:30 p.m. to be
at work at midnight. He was awake and present when the children
arrived home from school each day around 3:00 p.m. Husband
helped the children with their homework and fed them dinner.
Wife picked the children up after work between 5:15 p.m. and 7:00
p.m., bathed them, and spent "a couple of hours in the evening
[with them] . . . before they [went] to bed" at her residence.
During the summer months, a baby-sitter came to wife's home to
stay with the children from the time wife went to work at 6:30
a.m. or 7:00 a.m. until husband picked them up on his way home
from work around 8:30 a.m.
While the children were staying predominantly with husband,
he and his mother obtained medical attention for son that
resulted in diagnosis of an eye-tracking problem. Son had
previously been improperly diagnosed with attention deficit
disorder. Once the misdiagnosis was corrected, husband retained
a tutor, and son made the honor roll for the first time.
The Social Services report of August 2, 1996 indicates that
daughter "felt like a 'ping pong ball' going back and forth
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between her parents' homes" and that son said, "It's not good to
have two homes."
Husband testified that he earned $69,000 in 1996 (yielding a
gross monthly income of $5,750) but indicated that he planned to
eliminate all overtime hours, which would reduce his gross
monthly income to $3,857. He claimed monthly expenses of $5,624.
Wife began working on January 16, 1996 and earned a total of
$15,684 during 1996. She claimed monthly expenses of $1,898.
Wife's counsel submitted an itemized statement of attorney's
fees, showing fees of $5,325 for 40.4 hours of time, and costs of
$420.25, for a total of $5,745.25. Husband presented no rebuttal
evidence on the fee issue.
In his report of March 7, 1997 and amended report of March
11, 1997, the commissioner recommended, inter alia, that the
parties have joint legal and physical custody of the children and
detailed precisely how the physical custody was to occur. He
also recommended that husband pay $2,500 of wife's attorney's
fees. In ruling on the issue of child support, he found that
husband had a gross monthly income of $5,750 and wife an income
of $1,421.
Husband filed exceptions to the custody and attorney's fee
recommendations, and both were sustained without comment by the
1
trial court. The court granted husband primary physical custody
1
The court noted only that it "made its own conclusions as
to the appropriate relief required," having "given due weight to
the report of the commissioner . . . [and] the factors listed
. . . in Code . . . Sections 20-107.2 and 20-124.1, et seq."
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of the children with "liberal visitation" to wife, "including but
not limited to one overnight each week." The court also reduced
the attorney's fees to be paid by husband from $2,500 to $1,000.
Wife specifically objected to these rulings in her endorsement
of the final decree and noted her appeal to this Court.
There can be no dispute in this matter that both husband and
wife are fit and proper parents and each sought to achieve what
they believed to be the best interests of the children. Where
both parents are regularly employed and have children of tender
years, trial judges have difficulty making an award satisfactory
to both parties. Recent legislation concerning joint custody has
not decreased the difficulties faced by trial judges. See, e.g.,
1994 Va. Acts ch. 769 § 1 (deleting provision in Code § 20-107.2
that "court may give consideration to joint custody or sole
custody" and enacting Code § 20-124.2(B), which provides that
court "may award joint custody or sole custody" but "shall assure
minor children of frequent and continuing contact with both
parents, when appropriate, and encourage parents to share in the
responsibilities of rearing their children").
In the absence of limited jurisdiction family courts,
referrals to commissioners in chancery are necessary to assist
trial courts with their large domestic caseloads. The referral
system has resulted in the development of judicial principles
establishing the weight to be given commissioners'
recommendations. The Virginia Supreme Court has clearly stated,
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and often repeated, the principles governing appellate review of
a chancellor's decree that has set aside a commissioner's report:
While the report of a commissioner in
chancery does not carry the weight of a
jury's verdict, Code § 8.01-610, it should be
sustained unless the trial court concludes
that the commissioner's findings are not
supported by the evidence. This rule applies
with particular force to a commissioner's
findings of fact based upon evidence taken in
his presence . . . . [W]here the chancellor
has disapproved the commissioner's findings,
this Court must review the evidence and
ascertain whether, under the correct
application of the law, the evidence supports
the findings of the commissioner or the
conclusions of the trial court. Even where
the commissioner's findings of fact have been
disapproved, an appellate court must give due
regard to the commissioner's ability, not
shared by the chancellor, to see, hear, and
evaluate the witnesses at first hand.
Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296-97 (1984)
(citations omitted) (emphasis added); accord Yeskolski v. Crosby,
253 Va. 148, 152-53, 480 S.E.2d 474, 476 (1997); Jarvis v.
Tonkin, 238 Va. 115, 121-22, 380 S.E.2d 900, 904 (1989); Morris
v. United Va. Bank, 237 Va. 331, 337-38, 377 S.E.2d 611, 614
(1989); Sprott v. Sprott, 233 Va. 238, 240, 355 S.E.2d 881, 882
(1987); see also Goetz v. Goetz, 7 Va. App. 50, 53, 371 S.E.2d
567, 568-69 (1988); Robinson v. Robinson, 5 Va. App. 222, 225-26,
361 S.E.2d 356, 357-58 (1987).
Applying those principles to the case before us, we see
nothing in this record showing the trial court found insufficient
evidence to support the commissioner's recommendation that the
best interests of the children would be served by continuing
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joint custody, in keeping with recent legislation encouraging
joint custody in appropriate cases. We conclude from our review
of the record that the trial court, for reasons not disclosed,
simply preferred to make a different ruling. This is not to say
there is no evidence to support the trial court's conclusion.
However, the commissioner's report came to the trial court with a
presumption of correctness, see Dodge v. Dodge, 2 Va. App. 238,
241, 343 S.E.2d 363, 364 (1986), and the trial court made no
finding that the commissioner's report was unsupported by the
evidence. Cf. Robinson, 5 Va. App. at 226-27, 361 S.E.2d at 358
(in visitation case, remanding for additional findings where,
inter alia, "judge's oral opinion . . . does not reflect a
consideration of the role of the commissioner in weighing the
testimony . . . given in her presence . . .").
Because the record here fails to show that the evidence does
not support the commissioner's report, and because from our
review of that report it appears that it does, we reverse that
portion of the decree that awards physical custody of the
children to husband, contrary to the commissioner's report, and
remand that issue for further consideration consistent with this
opinion. For that same reason, based on an absence of findings
supporting deviation from the commissioner's recommendation, we
remand the issue of attorney's fees.
Nothing in this opinion should be construed to preclude the
trial court from modifying custody and support awards upon a
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proper showing of changed circumstances.
Reversed and remanded.
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