COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
WINSTON JEFFREY WATT
MEMORANDUM OPINION * BY
v. Record Nos. 2409-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
and 2600-97-4 JUNE 16, 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, P.C., on
brief), for appellant.
James Ray Cottrell (Christopher W.
Schinstock; Gannon, Cottrell & Ward, P.C., on
brief), for appellee.
Winston Jeffrey Watt (father) appeals the trial court's
order granting custody of the parties' child to Pamela Susette
Parmer Watt (mother). In his thirteen assignments of error,
father contends the trial court erroneously: (1) ruled on
several evidentiary matters; (2) found a material change in
circumstances based on the child's alienation from her mother;
(3) found changing custody from father to mother to be in the
child's best interests; and (4) disregarded the testimony of an
expert. For the following reasons, we affirm.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I. Background
The parties have two children, Suzanne Parmer Watt, born
April 7, 1981, and Emily Christine Watt, born March 18, 1991.
Pursuant to the parties' final decree of divorce, entered July
28, 1995, mother was granted sole custody of Suzanne and father
was granted sole custody of Emily. In the fall of 1995, the
parties filed cross-petitions for change in custody, citing
problems with visitation and communication. Additionally, mother
alleged that father and his current wife, Beebe Belmore, were
alienating Emily from her. In September 1995, the trial court
found changed circumstances based on both parties' relocations
but ordered that sole custody of Suzanne remain with mother in
her new home in Florida and sole custody of Emily remain with
father in Virginia. The trial court set out a visitation
schedule and expressed concern over the possibility of the
alienation of Emily from her mother. The trial court
specifically ordered father to "ensure that Emily does not call
her stepmother 'mom' or any such derivation of mother." Father
did not appeal that ruling. Mother appealed the trial court's
decision on other issues. This Court affirmed the trial judge's
1
rulings. See Watt v. Watt, No. 2448-95-4 (May 7, 1996).
On May 20, 1997, mother initiated the instant proceedings by
filing a motion to modify custody with respect to Emily. Mother
1
The issue of the appropriateness of requiring father to
prevent Emily's use of the term "mom" in reference to her
stepmother was not appealed and is therefore the law of the case.
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alleged that Emily was having difficulty with the current custody
arrangement, that Emily was becoming alienated from her, and that
father had violated the trial court's order with respect to
furthering mother's relationship with Emily.
On July 11, 1997, before the scheduled hearing on mother's
motion, father filed an emergency motion to change summer
visitation. Father's motion was based on the opinion of Dr.
Lynne Hahnemann, a resident in psychology who had testified at
the 1995 custody hearing. Ruling that Dr. Hahnemann was not
licensed as a psychologist in Virginia and therefore was not
permitted to testify, the trial court denied father's motion. A
hearing on the merits of mother's motion was held before the
trial judge from September 24 through October 2, 1997.
Viewed in the light most favorable to the prevailing party
below, see Johnson v. Johnson, 26 Va. App. 135, 144, 493 S.E.2d
668, 672 (1997), the evidence established the following facts.
Both mother's and father's witnesses testified that Emily made
numerous statements indicating that she felt emotionally distant
2
from her mother. Emily called Belmore "mom," even after the
court order requiring father to discourage this behavior. She
2
Both parties' witnesses, including father himself,
testified concerning Emily's statements. Father first objected
to this type of evidence during the testimony of Thomas Tomczak
and Suzanne Watt. After a brief recess, during which the trial
court reviewed Professor Friend's treatise and cases offered by
mother's counsel, the court overruled the objections, finding the
statements were admissible under the state-of-mind exception or
as verbal fact.
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referred to mother as "Susette" or "birth mother," and indicated
that she was not her real mother. Emily told Carolyn Pierce that
mother abused her and did not love her because she spanked her or
she went to work and left Emily "'at a pre-school or in a
day-care all of my life.'" Emily told mother on several
occasions in the presence of Willie Dickson "'Beebe says you
don't love me; that she's the only one who loves me.'" Emily
also said she "hated" mother and wished she "had not been born."
Suzanne testified that father and Belmore sent gifts to
Emily while she was on visitation with mother. They made a "big
deal" of her return from visitation with banners, balloons, and
presents. Additionally, father and Belmore gave Emily a
toll-free number to call them during visitations with mother.
Mother testified that Belmore said she considered mother a
"mother in name only." Suzanne testified that Belmore said
mother didn't love Emily because she had planned to abort Emily
and that was one of the reasons she could not be a good mother to
her. Additionally, Belmore told Dr. Kerman, Carolyn Pierce and
Jane Lynch that mother abused Emily. Belmore testified as
follows: "'You know, Susette?' I said, 'Your uncaring
self-centered behavior toward your child, in my opinion, is that
of an individual who is mother in name only.'" Belmore
acknowledged she does not believe mother has the skills or
genuine love and care required to raise Emily.
Dr. Fred Kerman, a clinical psychologist, testified
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regarding the impact on Emily of father's and Belmore's behavior.
He stated that, father's and Belmore's efforts to discourage
Emily from calling her stepmother "mom" notwithstanding, Belmore
had not done everything she could have to maintain the
distinction between her role as a stepparent as opposed to a
mother to Emily. He also acknowledged that giving the toll-free
number to Emily could imply to the child that she was in danger
when she was with mother and needed that number to protect
herself.
Mother offered additional evidence related to the criteria
of Code § 20-124.3. In particular, mother offered evidence that
she never interfered with father's visitation with Suzanne,
actively promoted a relationship between Suzanne and father, and
never refused Emily's requests to phone father while on
visitation. With regard to her parenting abilities, mother
presented evidence that Suzanne had excellent grades and was
thriving under mother's care and protection.
The trial court stated that the 1995 order had reflected its
concern about the possibility of Emily's alienation from mother
and that father's failure to comply with that order, while not
the basis for the court's decision, provided "some evidence of
alienation." The trial court found that "through an effort of
the father and his wife, there has been an extreme
marginalization of the mother's role in the child's life." The
court further found that "mother's witnesses are credible and the
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evidence of continued allegations of abuse, [referring to mother
as] 'birth mother' and things of that nature, right up until the
present time, are persuasive to the court that there has been
alienation." The court "did not extend the same degree of
credibility or belief to the father's witnesses." The trial
court concluded that the continued alienation of the child from
her mother, as well as the mother's fully established home in
Florida, constituted a change of circumstances from the 1995
hearing.
The trial court reviewed each of the statutory factors in
Code § 20-124.3, finding specifically that "the developmental
needs of Emily can be met in Florida." The trial court
considered "the determinative factor in this case" to be the
"propensity of each parent to actively support the child's
contact and relationship with the other parent." See Code
§ 20-124.3(6). The trial court found that "Emily has been led to
believe that her mother is nothing more than a birth mother," and
concluded:
I think the long-term interest of Emily, the
importance of knowing that her mother is her
mother, is so overwhelming and the evidence
I've heard is so compelling that that is not
the case now. . . . [I]t's in her long-term
interest to make a change in custody.
The trial court awarded sole custody of the child to mother.
Father's motion to stay execution of the judgment pending appeal
was denied on October 14, 1997.
II. Evidentiary Issues
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Father contends the trial court erred in admitting evidence
of the child's out-of-court statements. He argues the evidence
was hearsay and was not admissible under any exception to the
hearsay rule. We find no error.
Assuming without deciding that testimony describing the
child's out-of-court statements was not admissible under an
exception to the hearsay rule, we hold that sufficient evidence
of her statements was presented without objection to support the
trial court's findings. Father objected to the testimony of
Thomas Tomczak and Suzanne Watt regarding Emily's statements, but
he failed to object to similar testimony of Carolyn Pierce,
Willie Dickson, Jayne Lynch and mother. This uncontested
evidence included testimony that Emily called her mother
"Susette" or "birth mother" and that she said she hated mother
and mother abused her, abandoned her, and did not love her.
Moreover, father introduced evidence of Emily's out-of-court
statements during his case, including the testimony of Dr.
Kerman, Anna Lyon, Beebe Belmore, Briar Bogin, Richard Bogin, and
Jayne Lynch. Father himself testified that Emily called Belmore
"mom," that she called mother "Susette," and that she said she
hated her mother and wished she had not been born. A party
objecting to the introduction of evidence waives his objection
when he introduces similar evidence on his own behalf. See
McGill v. Commonwealth, 10 Va. App. 237, 244, 391 S.E.2d 597, 601
(1990).
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Father also contends the trial court erred in admitting a
letter from the child's school which included a statement that
Belmore had instructed school officials not to disclose any
information to mother. He argues the letter was hearsay and its
authenticity was not established. We disagree.
At trial, father objected to the admission of the letter as
follows: "I'm going to object just based on authenticity. But
certainly the witness can testify as to the letter." We decline
to consider father's hearsay objection, which was first raised in
his brief and is not properly before this Court. See Lee v. Lee,
12 Va. App. 512, 404 S.E.2d 736 (1991) (citing Rule 5A:18).
"'The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion.'" Crews v.
Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994)
(citation omitted). "Before any writing may be introduced into
evidence, it must be authenticated, 'which is the providing of an
evidentiary basis sufficient for the trier of fact to conclude
that the writing came from the source claimed.'" Ragland v.
Commonwealth, 16 Va. App. 913, 919, 434 S.E.2d 675, 679 (1993)
(quoting Walters v. Littleton, 223 Va. 446, 451, 290 S.E.2d 839,
842 (1982)). "'The amount of evidence sufficient to establish
authenticity will vary according to the type of writing, and the
circumstances attending its admission, but generally proof of any
circumstances which will support a finding that the writing is
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genuine will suffice.'" Id. Here, mother testified that she
physically went to the school where she was personally handed the
letter as a response by the school to her request for information
about Emily. These factual circumstances surrounding the letter
sufficiently established its genuineness, and its admission into
evidence was not an abuse of discretion.
-9-
III. Change in Circumstances
Father next contends the trial court erred in finding a
material change in circumstances because there was no alienation
and the child had no confusion about the identity of her mother.
We disagree.
The standard to be applied to a modification of a child
custody decree is well settled:
"A trial court, in determining whether a
change of custody should be made, must apply
a two-pronged test: (1) whether there has
been a [material] change in circumstances
since the most recent custody award; and (2)
whether a change in custody would be in the
best interests of the child."
Wilson v. Wilson, 18 Va. App. 193, 195, 442 S.E.2d 694, 696
(1994) (quoting Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d
40, 41 (1986)). "'Whether a change of circumstances exists is a
factual finding that will not be disturbed on appeal if the
finding is supported by credible evidence.'" Ohlen v. Shively,
16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993) (citation
omitted). In chancery cases heard ore tenus the trial court is
the sole judge of the credibility of the testimony of the
witnesses and all inferences to be drawn therefrom. See Street
v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 669 (1997) (en
banc). This Court will not substitute its judgment in such
circumstances for that of the trial court. See Ward v.
Commonwealth, 13 Va. App. 144, 148, 408 S.E.2d 921, 923 (1991).
In the instant case, the evidence established father's and
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Belmore's continued hostility toward mother, Belmore's attempts
to undermine mother in the eyes of both Emily and Suzanne,
Belmore's statements to family members perpetuating an unfounded
allegation of abuse of Emily by mother, and father's and
Belmore's intrusions into mother's visitation through gifts and
telephone calls. Based on this evidence, which the trial court
explicitly found to be more credible than father's evidence, 3 the
trial court concluded that "through an effort of the father and
his wife, there has been an extreme marginalization of the
mother's role in the child's life" and "that Emily has been led
to believe that her mother is nothing more than a birth mother."
Additionally, the evidence demonstrated that since 1995 mother
had completed the transition in progress at that time, and her
home in Florida was established. We hold that the evidence
supported the trial court's findings that the alienation of Emily
from her mother was ongoing, that mother had a stable home in
Florida, and that these were material changes in circumstances
4
justifying a reexamination of custody.
3
The trial court found mother's witnesses were "credible"
but "did not extend the same degree of credibility or belief to
the father's witnesses."
4
Father also contends the trial court erred in denying his
motion to strike because mother failed to establish a change in
circumstances. "'When the sufficiency of a plaintiff's evidence
is challenged by a motion to strike, the trial court should
resolve any reasonable doubt as to the sufficiency of the
evidence in plaintiff's favor.'" Butler v. Yeats, 222 Va. 550,
553, 281 S.E.2d 905, 906 (1981) (citation omitted). In light of
this standard and our holding that the evidence supported the
trial court's finding of a change in circumstances, the denial of
the motion to strike was not error.
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IV. Change in Custody
Father challenges the trial court's award of custody to
mother. He contends the child flourished in his home and the
trial court's conclusion that mother was capable of meeting
Emily's developmental needs was contrary to the evidence and
speculative.
"'[I]n determining custody, the court shall give primary
consideration to the best interests of the child.'" Sargent v.
Sargent, 20 Va. App. 694, 701, 460 S.E.2d 596, 599 (1995)
(quoting Code § 20-124.2). The court must consider the factors
in Code § 20-124.3 in deciding what custody arrangement is in the
child's best interests, including:
[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
relationship with the child, and the ability
of each parent to cooperate in matters
affecting the child.
Code § 20-124.3(6). "As long as the trial court examines the
factors, it is not 'required to quantify or elaborate exactly
what weight or consideration it has given to each of the
statutory factors.'" Sargent, 20 Va. App. at 702, 460 S.E.2d at
599 (quoting Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d
422, 426 (1986)).
In the instant case, the trial court acknowledged Emily's
success and happiness in father's household, but found "it's also
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obvious that the mother can meet the needs of the child. Suzanne
is probably the best evidence of that fact in that Suzanne has
prospered." After reviewing and weighing all of the statutory
factors, the trial court considered "the determinative factor in
this case" to be the "propensity of each parent to actively
support the child's contact and relationship with the other
parent." Based upon the evidence of an ongoing pattern of active
alienation of Emily from mother and a finding that this was not
in the child's best interests, the trial court awarded sole
custody to mother. We hold that credible evidence supported this
finding and the decision to award a change in custody was not
error.
V. Expert Testimony
Father also argues the trial court abused its discretion in
failing to follow the recommendation of the expert custody
evaluator. He contends the trial court had no reason not to be
persuaded by Dr. Kerman's testimony and opinions. Father's
argument lacks merit.
"[T]he fact finder is not required to accept the testimony
of an expert witness merely because he or she has qualified as an
expert." Street, 25 Va. App. at 387, 488 S.E.2d at 668. The
trier of fact ascertains a witness' credibility, determines the
weight to be given to his testimony, and has the discretion to
accept or reject any of the testimony. See id. In determining
the weight to be given to expert testimony, the fact finder may
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consider the basis for the opinion. See id. at 388, 488 S.E.2d
at 668-69; Gilbert v. Summers, 240 Va. 155, 393 S.E.2d 213
(1990).
In the instant case, the trial court considered that Dr.
Kerman never interviewed any of mother's witnesses and was
unaware of their information. Furthermore, the trial court could
also consider Dr. Kerman's testimony that he did not normally
testify when he could not involve both parents in the evaluation,
but nevertheless he elected to do so in this case. In light of
these facts and the evidence supporting the trial court's
rulings, we hold the trial court did not err in rejecting the
5
recommendation of the expert.
Both parties have requested an award of costs and attorneys'
fees for this appeal. We find no evidence that either party
created unnecessary delay or expense, and the issues raised were
not unreasonable. Accordingly, the requests are denied.
For the foregoing reasons, the trial court's custody order
is affirmed.
Affirmed.
5
Father also contends the trial court erred in denying his
motion to stay execution of the order in light of overwhelming
evidence that the change in custody would have a detrimental
effect on the child. We hold the trial court did not err in
failing to order the child to remain in the environment which it
had just determined was not in her best interests. The trial
court noted in its ruling that any anticipated transition
difficulty was properly before the court during the trial, and
the court had "taken it into consideration in making my
decision." The trial court's denial of father's motion to stay
was well within its discretion.
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