COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
WINSTON JEFFREY WATT
MEMORANDUM OPINION *
v. Record No. 0395-98-4 PER CURIAM
SEPTEMBER 22, 1998
PAMELA SUSETTE PARMER WATT
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
(Lawrence D. Diehl; Jeanette A. Irby; Walker,
Jones, Lawrence, Duggan & Savage, on brief),
for appellant.
(James Ray Cottrell; Gannon, Cottrell & Ward,
on brief), for appellee.
This appeal arises from a visitation order that was entered
by the circuit court judge following a change in custody of the
parties' younger child from her father, Winston Jeffrey Watt, to
her mother, Pamela Susette Parmer Watt. The father contends that
the trial judge erred by (1) failing to permit additional
evidence; (2) failing to provide a "generous" visitation
schedule; (3) limiting the father's calls to the child to once a
week and refusing to state in the court order that the child was
allowed to call father; and (4) failing to consider the child's
best interests when fashioning the visitation schedule. Both
father and mother seek attorney's fees and costs for this appeal.
Upon reviewing the record and briefs of the parties, we conclude
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that this appeal is without merit. Accordingly, we summarily
affirm the trial judge's decision. See Rule 5A:27.
"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 S.E.2d 441, 442 (1991) (citation omitted).
In matters of a child's welfare, trial
courts are vested with broad discretion in
making the decisions necessary to guard and
to foster a child's best interests. A trial
court's determination of matters within its
discretion 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.
Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)
(citations omitted).
Additional Testimony
The father contends that the trial judge erred when he
refused to allow the father to introduce additional evidence
following the ruling transferring custody to mother. We find
that issue is not properly before us in this appeal.
The testimony of Dr. Fred M. Kerman was proffered during
the October 10, 1997 hearing on the father's motion to stay
execution of the order changing custody. The trial judge
declined to hear Dr. Kerman's testimony at the hearing on the
stay motion. The father appealed the circuit judge's denial of
his motion. We affirmed the orders changing custody and refusing
father's motion to stay execution of its order. See Watt v.
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Watt, Nos. 2409-97-4 and 2600-97-4 (June 16, 1998).
This current appeal arises from the order establishing a
visitation schedule. The father contends that the trial judge
"abused his discretion when [he] awarded limited visitation to
the [father] without any further evidence other than what was
presented in trial." However, nowhere in the course of two
transcribed hearings on visitation was the issue of additional
evidence raised. Therefore, because the evidence was proffered
during the hearing on father's motion to stay execution of the
custody order, which was separately appealed, and was not
proffered during the visitation hearings, the issue is not
appealable in this action. See Rule 5A:18.
Visitation Schedule
Father contends that the trial judge erred by setting a
visitation schedule which was not sufficiently generous to him.
That argument is without merit.
Code § 20-124.2(B) provides that "[t]he court shall assure
minor children of frequent and continuing contact with both
parents, when appropriate." The statute further provides
however, that the trial judge "shall give primary consideration
to the best interests of the child." Id. We have held that in
matters pertaining to visitation the trial judge must exercise
judicial discretion, within the statutory boundaries and based
upon the facts of each case. See Vissicchio v. Vissicchio, 27
Va. App. 240, 252, 498 S.E.2d 425, 431 (1998).
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We find no basis for reversing the trial court's visitation
schedule. The mother lives in Florida, and the father lives in
Virginia. While counsel indicated that "[t]here may be some
weekends when [father and stepmother] can come down there,"
visitation required the six-year-old child to travel between
Florida and Virginia. The trial judge considered the realities
of the parties' circumstances and found as follows:
The thought I was having was that the cost of
this and the difficulties in the
transportation didn't seem conducive to a
traditional two weekends a month type of
visitation, which is why I tried to give
[father] the bulk of the three-day weekends,
all after the first of the month except for
Memorial Day, so that there would be
additional visitation in January and February
. . . .
The trial judge's visitation schedule provided regular
opportunities for the father and the child to be together, given
the realities of the parties' circumstances. It allowed longer
weekend visits whenever possible with less time in transit. The
statutory mandate of "frequent and continuing contact, when
appropriate" did not require the trial judge to adopt a schedule
which would result in the six-year-old child traveling from
Florida to Virginia twice a month.
The father also contends that the trial judge erred by
failing to award father visitation for seven weeks of summer
vacation. During the telephone hearing, the father's counsel
requested the trial judge to modify the proposed visitation
schedule as follows:
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[I]f you back [the start of summer
visitation] off to June 15th, or just give us
the extra two weeks, either alternative is
acceptable. But we would really like [the
child's] summer vacation to coincide with
Fauquier summer vacation.
(Emphasis added.). The trial judge considered and adopted the
father's request to begin summer visitation on June 15th, thereby
allowing both the three-day visit on Memorial Day and an extended
summer visit. The father did not object to the modified summer
visitation schedule in his exceptions to the visitation order.
See Rule 5A:18.
Further, we find no grounds to reverse the trial judge's
decision to alternate, rather than split, Christmas holidays
between the parties each year. While the statute requires the
trial judge to assure each parent "frequent and continuing
contact, when appropriate," we reject the father's contention
that a presumption exists under either the statute or current
case law requiring holidays to be divided annually between
divorced parents. The best interests of the child under the
circumstances is the guiding standard and that must be based upon
the evidence and in light of the statutory factors. The trial
judge articulated his reasons for alternating the Christmas
holidays, thereby allowing each parent an extended period with
the child every other year. In addition, in the years when the
child spends Christmas with her mother, her father has visitation
the entire Thanksgiving holiday as well as the option to exercise
several days' visitation during the Christmas holiday. We cannot
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say, based upon the extensive record before us, that the trial
judge's decision was plainly wrong.
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Telephone Contact
The father contends that the trial judge erred by
arbitrarily refusing to expressly provide that the child's calls
to him were not to be restricted. The order allowed the father
one call a week to the child. The trial judge heard the father's
objections to the order as written and rejected the requested
provision. As noted by the trial judge, "to add that [provision]
in the order, I think, at least at this stage of the proceedings,
is --- might lead to more controversy rather than less." The
trial judge was familiar with the parties and their previous
disagreements. The judge noted that the evidence did not support
the father's allegations that the child was barred from
contacting him. The trial judge's decision was reasonable based
upon the parties' past dealings and sought to avoid further
litigation between the parties. We find no error in the trial
judge's refusal to incorporate an express provision authorizing
the child to call father if she so desired.
Appellate Attorney's Fees
Both parties seek appellate attorney's fees and costs.
Because we find that the issues lack merit, we grant the wife's
request for attorney fees. We direct the trial judge to set and
award the wife a reasonable attorney fee for the expenses
incurred for preparation of her brief on this appeal.
The decision of the circuit court is summarily affirmed.
Affirmed.
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Winston Jeffrey Watt v. Pamela Susette Parmer Watt
Combined Opinion