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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