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Wynnycky v. Kozel

Court of Appeals of Virginia

November 12, 2019



          Marc A. Astore (Marc A. Astore, P.C., on briefs), for appellant.

          Lawrence D. Diehl (Barnes & Diehl, P.C., on brief), for appellee.

          Present: Chief Judge Decker, Judges Humphreys and Russell Argued at Leesburg, Virginia



         Jason Wynnycky ("father") appeals an order of the circuit court regarding custody and visitation of the parties' minor daughter. He specifically challenges the court's decision to award a period of 50-50 custody followed by Susan Kozel ("mother") being awarded primary physical custody upon the child's entry into first grade. Finding no error, we affirm the judgment of the circuit court.


         Father's appeal comes before this Court after a highly contentious and protracted course of litigation in the circuit court. The circuit court took evidence on child custody and visitation issues during numerous, hours-long hearings spanning almost three years. The evidence included testimony from the parties, relatives, child-care providers, teachers, and mental health experts, numerous e-mails and photographs, and psychological evaluation reports. Because mother was the prevailing party below, we review the facts in the light most favorable to her, granting her all reasonable inferences that can be drawn from the evidence and disregarding any evidence that conflicts with her evidence. Geouge v. Traylor, 68 Va.App. 343, 347 (2017).

         The parties were married on August 27, 2011; their daughter was born on September 11, 2013. On August 26, 2015, father filed for divorce after mother moved out of the marital home, taking the child with her. The circuit court conducted its first evidentiary hearing on November 23, 2015, to consider pendente lite custody and visitation arrangements.[2] The court ruled from the bench, noting father's anger toward mother and mother's control issues. To avoid troublesome transitions, the court endeavored to "set a schedule so that there is predictability."

         The resulting pendente lite custody order, entered December 11, 2015, [3] directed that the parties share joint legal custody, that mother have physical custody, and that father have visitation every other weekend and every Wednesday evening. The order further established a detailed birthday and holiday visitation schedule; for the summer, the court awarded each parent two consecutive weeks in the months of June, July, and August, to be determined by the parties. An issue with the summer schedule arose in June 2016, when father moved for clarification of the order's provisions in light of a change in his business travel needs; the court resolved the issue by order after a hearing.

          The parties' divorce proceedings continued. The extensive litigation involved substantial discovery and numerous filings, including objections to evidence, motions to quash, and other contentious pre-trial issues. After several continuances, an evidentiary hearing focusing on custody and visitation was held on November 22, 2016.

         The witnesses at the hearing were profuse in their testimony as to the child's intelligence and good nature and her affection for both parents. The parties admitted to their problems with trust and communication. The evidence demonstrated that mother worked only part-time, affording her great flexibility in scheduling, while father normally worked daily from 8:00 a.m. to 5:00 p.m. and traveled extensively, often overseas, for his government employment. Although father recently had taken new employment to reduce his travel duties, he nonetheless reported three international trips over eleven months and anticipated quarterly trips, averaging seven to ten days each, going forward. Mother expressed concern about behavioral issues she was observing in the child after visits with father. She mentioned some arm biting and an episode of self-induced vomiting. Mother emphasized transitional issues and noted how father's vacation travel with their daughter failed to account for her age and rest needs in itinerary scheduling.

         At the close of the hearing, the court took the matter under advisement pending receipt of mental health examinations of father and child and carried all the divorce issues over to a March 2, 2017 hearing for final resolution. An interim order entered December 9, 2016, directed that the December 11, 2015 pendente lite order remain in effect. When the anticipated reports were filed in February 2017, mother challenged the release, scope, and use of the child's report, necessitating a continuation of the custody issues from the March hearing date.[4]

          Trial proceeded on May 4 and 10, 2017, but the presentation of evidence was not concluded at the end of the May 10 hearing. As a result, the circuit court carried the matter over to June 9, 2017, for an additional two hours. Further argument was presented on June 22, 2017.

         Much of the testimony from these hearings focused on a transition occurring the prior Thanksgiving weekend, when father dropped the child off with mother late and forgot to pack the child's favorite stuffed toy. Other relatives were present and arguments between the adults ensued in front of the child, and the child later did not want to participate in the activities mother had planned.

         Evidence also was presented on father's lack of communication with mother regarding his work travel plans or event and vacation itineraries with the child; e-mail and text inquiries often went unanswered or were responded to several hours later, and details regarding logistics were not readily forthcoming. Mother also noted father regularly failed to communicate regarding potential health concerns, such as rashes or injuries. The evidence demonstrated an inability of the parties to negotiate and find consensus when unexpected issues arose.

         Mother expressed concern over the child returning to her home bruised, disheveled, and with irregular sleep patterns. Mother consistently stressed that the child was experiencing sleep issues and was regularly overtired. Mother further suggested, based on her observations of the child's behavior, that the child was being exposed to negative comments regarding mother and mother's family.

         Father's psychological evaluation disclosed effective parenting competence with respect to caring for his daughter, but that issues with lack of insight into the effects of his own behavior and stubbornness likely undermined his co-parenting abilities. The evaluation of the child revealed a child essentially developing on an age-appropriate basis, prone to emotional dysregulation upon stressors and tiredness, most often as a result of frequent transitions throughout a day or week. The report also noted outbursts where the child had used words and phrases she likely had overheard her parents say.

         The circuit court issued its ruling on custody and visitation in open court on July 20, 2017. The court first commented that the parties "have had a very difficult time in trying to co-parent this child" and that the "mutual resentment of each parent toward the other is really what drives their relationship and, therefore, shapes their relationship with [their daughter.]" The court noted that it had "considered the factors under [Code § 20-124.3] in determining the best interest of the child . . . [and] weighed each of those factors." The court then addressed each of the factors in turn, specifying certain findings.

         The court stated, in part, that the "age, physical and mental condition of the child has been considered of course with the due consideration of the child's changing developmental needs. . . . There are no abnormal physical or mental conditions of the child, who . . . is equally loved by both parents." The court found no evidence suggesting either parent possessed any physical or mental condition that would impact the child.

         The court continued by saying that

[b]oth parents . . ., appear to appropriately treat and care for the child and they're supportive . . . of her in their own way. While there seems to be some disagreement as expected on some issues with how the other parent interacts with the child or cares for the child, as well as how to discipline the child.

         The court further found that "both parents have a positive relationship with the child, although they express concerns about how the child acts with the other parent" and that "unfortunately [she] has had to experience and endure the personal conflict between her parents and their inability to reach agreement about parenting is more likely the cause for her restlessness and irritability at the time of transition." The court also concluded that "[b]oth parents, going on to factor four, should be involved in the child's life with their equal involvement as is practicable[, ]" for "both parents have had a positive role in [their daughter's] upbringing but not to the level that she deserves."

         "As to factor six," the court stated that each parent should "be more receptive as to how the child reacts to the other parent. From the mental health evaluation it appears that [the child's] behavior is sometimes over scrutinized by the mother. The child is perceptive and is probably aware of how under the microscope she can be seen and treated." The court completed its factor analysis by reporting that "[t]he parents have been willing to maintain a close relationship with [the child], . . . [b]ut the ability of each parent to cooperate with the other and resolve disputes is unclear."

         The court then awarded joint legal custody and directed that the parents share physical custody on a weekly basis, greatly expanding father's time with his daughter when compared to his visitation rights under the pendente lite order. The court, however, limited the duration of this shared custodial arrangement, directing that upon the child's entry into first grade, "father's visitation shall be every other weekend beginning Friday from when school ends . . . until Monday morning . . . ." Noting the different demands between kindergarten and elementary school, the court stated: "[I]t's in the best interests of the child that she have this opportunity to be with her father on a weekly basis. And then once she starts first grade, I think it's more appropriate that it change to the alternating weekends." In discussing the court's order, the parties raised questions regarding certain aspects of the new arrangement, but father did not specifically challenge the court's authority to enter such a custody award.

         The custody ruling was not memorialized until its incorporation into an order that was entered September 6, 2017, a few days shy of the child's fourth birthday. The order noted that the court was entering it "based on the findings of fact as stated on the record," after "having observed the demeanor and credibility of the parties and their witnesses" and "having reviewed Virginia Code § 20-124.3 regarding custody and visitation factors." The circuit court specifically ordered that

[u]ntil [the child] enters first (1st) grade, each parent will alternate physical custody of [her] on a weekly basis from Monday to Monday. . . . Th[is] schedule . . . shall continue until [the child] enters first (1st) grade, at which time father's visitation shall be every other weekend beginning Friday from school when school ends, or 5:00 PM if school is not in session, until Monday morning with the drop off at school before school begins, or if there is no school, then to [m]other's residence. . . . Father's first weekend shall begin the Friday following Labor Day weekend the year [the child] enters first grade.

         In the ordinary course, the child was to begin first grade in the fall of 2019, roughly two years after entry of the order.

         Although the order concluded the divorce and associated property issues, in a handwritten provision, it stated, "with respect to custody and visitation, this court's jurisdiction is reserved and a review hearing on those issues is hereby set on October 27, 2017 . . . to be heard by proffer. If . . . further evidence is required after said hearing, another date shall be set by the court to take evidence." Both parties noted their objection to the order; father ...

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