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Armstrong v. Armstrong

Court of Appeals of Virginia

November 12, 2019



          William C. Scott IV (Law Office of William C. Scott, IV, PLC, on brief), for appellant.

          Derrick W. Whetzel; W. Andrew Harding, Guardian ad litem for the infant child [1] (Convy & Harding, PLC, on brief), for appellee.

          Present: Judges O'Brien, AtLee and Athey Argued at Lexington, Virginia



         Adam Christopher Armstrong ("father") and Kristy Marie Armstrong ("mother") were married on May 16, 2015, and are the parents of one daughter, A.A., [2] born July 11, 2016. After a trial on issues of divorce, custody, and visitation, the court granted father primary physical custody of A.A., but it ordered that the parents share joint legal custody. Father appeals the court's award of joint legal custody. He contends the court abused its discretion as a matter of law by ordering joint legal custody because a protective order prohibits "contact of any kind" between the parties. Further, he argues the court abused its discretion by finding that joint legal custody was in the child's best interests.


         Father and mother had a tumultuous marriage with several separations and reconciliations. During their separations after A.A.'s birth, the parties agreed to shared custody arrangements, and they separated permanently on January 20, 2017.

         Father filed for divorce on October 10, 2017, and he requested sole legal and primary physical custody of A.A. On November 27, 2017, father obtained a protective order against mother in the Rockingham County Juvenile and Domestic Relations District Court. Pursuant to Code § 16.1-279.1, the order prohibited mother from having any contact with either father or A.A. Mother appealed to circuit court. Following an evidentiary hearing, the court granted father a protective order until December 11, 2019, but modified the conditions to only prohibit mother from contacting father, not A.A.[3] The parties stipulated that the transcript and evidence from the protective order trial would be admissible in the divorce and custody case.

         During their marriage and while the divorce and custody trial was pending, mother and father initiated various criminal and civil proceedings against each other, including a child abuse claim filed by father against mother, which was dismissed. Mother filed criminal assault charges against father that she later recanted. Additionally, father obtained a warrant against mother for violating the protective order. That charge was dismissed as well.

         Following various pendente lite hearings, on August 24, 2018, the court heard the issues of the grounds for divorce, custody, and visitation. The court subsequently issued a written opinion that granted father a divorce on the ground of cruelty and determined custody and visitation after considering the factors enumerated in Code § 20-124.3.

          In its opinion, the court found that both parties enjoyed a close relationship with A.A., and although the parent-child bond was equally strong for father and mother, each parent had deficits. The court had concerns that mother was "highly erratic" and verbally and physically abusive toward father. The court found that father "offers a more stable living situation than [mother]" and "provided certainty and stability to the child during the parties' separation." However, the court described father as "calculating" and found that he "pushes [mother's] buttons, then decries her erratic response." It determined that father "has clearly cut [mother] out of his life" and is "attempting to strategically take [her] out of [A.A.'s] life as well." The court concluded, however, that mother's erratic and abusive behavior toward father was "so extreme that the stability [father] provides outweighs his negatives." Accordingly, the court granted father primary physical custody and established a visitation schedule for mother.

         The court awarded the parties joint legal custody. It specifically referenced the protective order in its letter opinion and found that father "uses the protective order as part of an offensive stratagem. It has become a sword in the custody matter instead of a shield." Although the court found that "[b]oth parents are unable to cooperate in resolving disputes," it also noted their "red-hot hatred has cooled to a slightly lower-grade, weary hatred" and expressed hope that they may be able to "move on." The court directed the parties to communicate concerning the child "SUBJECT TO THE PROTECTIVE ORDER" with "[n]o telephone calls, except in emergency situations, or by written agreement," and advised counsel to include a provision in the divorce decree addressing third-party exchanges of the child. Accordingly, the decree provided for exchanges either at A.A.'s daycare or Family Community Education offices. The decree also reiterated that all communication between the parties was subject to the protective order.

         After a subsequent hearing on mother's motion for attorneys' fees and father's motion to reconsider, the court ...

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