Bruce A. McKechnie v. Karen MacConnell McKechnie

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Annunziata and Bumgardner
Argued at Alexandria, Virginia

BRUCE A. McKECHNIE
MEMORANDUM OPINION * BY
v. Record No. 2855-96-4 JUDGE JERE M. H. WILLIS, JR.
JANUARY 20, 1998
KAREN MacCONNELL McKECHNIE

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Jr., Judge
Bruce A. McKechnie, pro se.

Gerald R. Curran for appellee.

This appeal arises from an order resolving child custody

issues raised by Bruce A. McKechnie (the father) and Karen

MacConnell McKechnie (the mother). The father contends that the

trial court erred (1) in failing to follow the recommendations of

the independent custody evaluator; (2) in denying him sole legal

custody; (3) in denying his request to reduce midweek visitation

between the mother and the parties' son; (4) in restricting use

of the words "mom" or "mommy" to refer only to the mother; (5) in

imposing upon him the requirement that the children attend

visitation with the mother with a positive attitude; (6) in

assessing him the cost of the custody evaluator; and (7) in

deleting portions of the custody evaluator's testimony from the

written statement of facts. We affirm in part, reverse in part,

and remand.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
 We need not address the mother's contention that the trial

court erred in admitting the father's "log" of events into

evidence.

BACKGROUND

The parties were married in September, 1981 and were

divorced on December 8, 1992. The father has remarried. The

parties have two children, Meagan and Kellen, who are currently

fourteen and ten years of age, respectively. On January 13,

1994, the trial court awarded primary physical custody of the

children to the father.
On July 2 and 3, 1996, the trial court conducted a hearing

on custody issues stemming from motions made by the parties. 1

The father testified that the mother repeatedly engaged in

inappropriate conduct when the children visited her. He recorded

these events in a log, which was admitted into evidence as part

of his testimony. He testified that he was concerned with the

children's physical, emotional and psychological well-being

during their visits with the mother.

The father acknowledged that he routinely did not send

sports equipment and books with the children when they visited

their mother. He admitted that this might suggest to the

1
The mother filed a motion for primary physical custody of
Kellen, a motion for a change in visitation and a rule to show
cause. The father filed a motion for sole legal custody of the
parties' children, a motion for child support, a motion to
terminate spousal support, a motion to assess the fee of a
custody evaluator against the mother and a rule to show cause.

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children that their mother was "irresponsible and not to be

trusted." He also admitted that he allowed Meagan to cancel

visits and that he would make commitments concerning the children

without consulting the mother. The trial court also heard

testimony from the mother, an independent custody evaluator and

other witnesses.

"Under familiar principles we view [the] evidence and all

reasonable inferences in the light most favorable to the

prevailing party below. Where, as here, the court hears the

evidence ore tenus, its finding is entitled to great weight and

will not be disturbed on appeal unless plainly wrong or without

evidence to support it." Martin v. Pittsylvania County Dep't of

Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)

(citation omitted).

EXPERT RECOMMENDATIONS

The father contends that the trial court erred in failing to

accept the recommendations of the independent custody evaluator.

We disagree.
It is well established that the trier of fact
ascertains a witness' credibility, determines
the weight to be given to their testimony,
and has the discretion to accept or reject
any of the witness' testimony. Further, the
fact finder is not required to accept the
testimony of an expert witness merely because
he or she has qualified as an expert. In
determining the weight to be given the
testimony of an expert witness, the fact
finder may consider the basis for the
expert's opinion.

Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668-69

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(1997) (citations omitted).

Prior to the hearing, upon motion of the father, the trial

court appointed an expert to conduct an independent custody

evaluation. In his report, the custody evaluator recommended

that the trial court grant the father sole legal custody,

institute joint counseling for the mother and their daughter, and

limit the mother's visitation. He reported that psychological

testing revealed that the mother had "a paranoid personality

makeup with a currently borderline or overtly psychotic state."
However, at the hearing, the custody evaluator admitted that

he had difficulty "during his evaluation process in being able to

'get a handle' on what was really happening in this case." On

cross-examination, he retracted certain statements included in

his report as being without support. He also admitted that

testing can falsely indicate paranoia if the test subject feels

threatened. He noted that the mother exhibited no traits of

psychosis. Finally, he acknowledged that he had not included

several "flattering" comments about the mother.

The trial court heard the testimony ore tenus. The weight

to be given the custody evaluator's report and the extent to

which the recommendations of that report should be followed, lay

within the trial court's exercise of its sound discretion. We

perceive no abuse of discretion or error in the trial court's

decision.

CUSTODY AND VISITATION

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 "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). The

trial court is vested with broad discretion to safeguard and

promote the child's interests, and its decision will not be

reversed unless it is 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).
We find no error in the trial court's refusal to award the

father sole legal custody. As the party seeking a change in the

custody, the father bore the burden of proving: (1) that a

material change in circumstances had occurred, and (2) that a

change in custody was in the children's best interests. See Keel

v. Keel, 225 Va. 606, 611-12, 303 S.E.2d 917, 921 (1983). The

trial court determined that the father had failed to prove a

material change in circumstances justifying a change in custody.

The trial court found: "there is not a single instance ever

presented in this case by either one where there ever was a

discussion about issues that involve joint custody." It held

that the parents should attempt to implement the existing joint

custody arrangement. We cannot say that this ruling was wrong or

that the trial court erred in denying the father sole legal

custody.

The trial court allowed the teenage daughter to exercise

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some control concerning midweek visits with her mother, but

required continued midweek visits for the mother with the son.

It ruled that the visits between the son and his mother were

important. We find no error in the trial court's denial of the

father's request to reduce the mother's midweek visitation with

her son.

ORDER

For purposes of determining custody and visitation, the

trial court "shall give primary consideration to the best

interests of the child." Code § 20-124.2(B). Thereafter, the

trial court retains "continuing authority and jurisdiction to

make any additional orders necessary to effectuate and enforce"

previously entered visitation and custody orders. Code

§ 20-124.2. Such power includes "the authority to punish as

contempt of court any willful failure of a party to comply with

the provisions of the order." Id.

The trial court held that the parties had failed to meet

their obligations under the joint custody arrangement. It found

the father in contempt for failing to send sports equipment and

books with the children when they visited their mother, and the

mother in contempt for tardiness in picking up and returning the

children. Addressing the parties' willful and general failure to

comply with the joint custody order, the trial court ordered:

(1) that the parties and their children shall use the term "mom"

or "mommy" only in reference to the mother, and (2) that the

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father shall guarantee that the children exhibit a positive

attitude toward their mother and the visitation schedule.

The evidence fails to support the trial court's order that

the children limit their use of the term "mom" or "mommy" to the

mother. No witness testified that either party experienced

difficulty with the children's reference to the father's wife as

"mom," or that the children displayed confusion about their

relationship with their natural mother.
It is entirely proper to require that the father prepare the

children for visitation and that he not cultivate negative

feelings on the children's part. However, he cannot be made the

guarantor of the children's demeanor and attitudes. Accordingly,

we reverse and remand the order to the trial court to modify

these specific provisions. 2

ALLOCATION OF COST OF CUSTODY EVALUATION

The father contends that the trial court erred by assessing

him the full cost of the custody evaluation of the parties and

their children. He argues that the mother's conduct required a

reexamination of custody. However, the trial court adopted a

broader view of the evidence before it and placed responsibility

on both parents. The father moved for the testing. He had

greater financial resources. We find no abuse of discretion in

2
We do not foreclose appropriate orders, supported by the
evidence, addressing each parent's responsibility to "actively
support the child's contact and relationship with the other
parent . . . ." Code § 20-124.3(6).

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the trial court's order that the father pay for the evaluation.

WRITTEN STATEMENT OF FACTS

The father contends that the trial court abused its

discretion in correcting his proposed written statement of facts.

Under Rule 5A:8, when the parties elect to rely upon a "written

statement of facts, testimony, and other incidents of the case,"

the trial judge is authorized to correct the written statement.

Thus, corrections to the proposed written statement are matters

lying within the recollection and discretion of the trial court.
The trial court deleted sections of the proposed written

statement that were extraneous, redundant, biased or otherwise

unnecessary to the record on appeal. We cannot say that it

thereby abused its discretion.

The decision of the trial court is affirmed in part, and

reversed and remanded in part.
Affirmed in part,
reversed and
remanded in part.

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