COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
MICHAEL ANDREW LAMONT
MEMORANDUM OPINION *
v. Record No. 0078-00-4 PER CURIAM
JUNE 13, 2000
SHEILA ANN LAMONT
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge
(Mark A. Barondess; Erika B. Schiller;
Sandground Barondess West & New, P.C., on
briefs), for appellant.
(Douglas J. Sanderson; McCandlish & Lillard,
P.C., on brief), for appellee.
(Melinda S. Norton; Matthews, Snider,
Norton & Fitzner, on brief), guardian ad
litem for Andrew Lamont and Elizabeth
Lamont.
The trial court granted Sheila Ann Lamont primary physical
custody of the parties' two minor children, Andrew and Elizabeth,
and awarded the parties joint legal custody. On appeal,
Michael A. Lamont contends that the trial court erred or abused
its discretion by (1) failing to award him sole legal custody
despite evidence of physical and emotional abuse of the children
by mother; (2) failing to set a visitation schedule equally
dividing the children's time with their parents; and (3) failing
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
to set a summer schedule equally dividing the children's time
between the parties. Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
The parties continued to reside in the marital residence
during the initial stages of the divorce proceedings. Pursuant to
an emergency motion of the guardian ad litem, the trial court
entered a Protective Order and Pendente Lite Order establishing a
"bird's nest" custody arrangement in which the children, ages
three and five, remained in the marital home with the mother
during the week and with the father during the weekend. At the
conclusion of a four-day evidentiary hearing on custody and
visitation, the trial court ruled that the parties would share
joint custody of the children; that the father would have the
children three weekends each month; and that each party would have
two weeks with the children each summer. The trial court also
continued the appointment of the guardian ad litem. The father
appealed the order setting out the court's ruling.
Joint Custody
The father contends that the trial court erred by failing to
award him sole legal custody. We disagree. "In matters
concerning custody and visitation, the welfare and best interests
of the child are the 'primary, paramount, and controlling
consideration[s].'" Kogon v. Ulerick, 12 Va. App. 595, 596, 405
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S.E.2d 441, 442 (1991) (citation omitted). The trial court is
vested with broad discretion to make the decisions necessary to
safeguard and promote the child's best interests, and its decision
will not be set aside unless plainly wrong or without evidence to
support it. See Farley v. Farley, 9 Va. App. 326, 327-28, 387
S.E.2d 794, 795 (1990). "Absent clear evidence to the contrary in
the record, the judgment of a trial court comes to an appellate
court with a presumption that the law was correctly applied to the
facts." Bottoms v. Bottoms, 249 Va. 410, 414, 457 S.E.2d 102, 105
(1995).
The father contends that there was overwhelming evidence that
the mother physically and emotionally abused the parties'
children. While there was evidence that the mother had acted in
anger in disciplining the children, there was also extensive
evidence that she was the primary caregiver who actively nurtured
both children. Both parties had trouble with anger management.
Dr. Christopher H. Lane, a licensed clinical psychologist who
examined the parties and their children, opined that "both these
individuals are likely to behave at times in a manner that is
anathema to the best interests of these children." Dr. Lane
testified as follows:
[T]hey are basically high-functioning people
who my belief is that under the conditions
of long-term marital stress have behaved
very badly in terms of self control, in
terms of taking responsibility, in terms of
being able to focus on their children's
needs rather than their own.
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I think they are both critically compromised
in those areas. I also think they do not
-- neither of them show any particular
positive signs with regard to being able to
cooperate with one other around the
children's needs.
The trial court heard the evidence ore tenus and received the
recommendation of the guardian ad litem. In comments from the
bench, the trial court reviewed both the statutory provisions of
Code § 20-124.2(B) and the factors set out in Code § 20-124.3.
Based upon the evidence and the statutory factors, the trial court
found that the best interests of the children required the active
participation of both parents and that joint legal custody was the
best means to ensure that participation. Accordingly, the trial
court ordered the parties to share joint legal custody, granting
the guardian ad litem the final decision-making authority in
instances where the parties were unable to reach an agreement.
The trial court required both parties to continue therapy
until released by their therapists. Based upon the evidence heard
ore tenus by the trial court over the four-day hearing, we find no
abuse of discretion or error in the decision to award the parties
joint legal custody.
Visitation
The father also contends that the trial court erred by
failing to grant him an equal amount of time with the children
each week. We disagree. The trial court adopted the visitation
schedule proposed by the father, although reversing the roles of
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the parties. The father received visitation on the first, second,
and fourth weekend of each month from Friday night until Sunday
night. The trial court also granted the father's request for
additional visitation each Tuesday evening. In addition, the
parties split or alternate all holidays. The court's decision was
based in part on the evidence concerning the father's regular work
schedule. We cannot say that the trial court's decision was
either an abuse of discretion or unsupported by the evidence.
Summer Visitation
The father also contends that the trial court erred by
failing to give him more visitation in the summer. Both parents
were awarded two uninterrupted weeks with the children each
summer. The trial court's decision was based upon the evidence
and the statutory factors. We find no abuse of discretion or
reversible error.
Accordingly, the judgment of the trial court is summarily
affirmed.
Affirmed.
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Michael Andrew Lamont v. Shelia Ann Lamont
Combined Opinion