                        COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia


ROSANNE D'ERAMO BELL TIGNOR
                                           MEMORANDUM OPINION * BY
v.   Record No. 2995-00-1                   JUDGE LARRY G. ELDER
                                                JUNE 26, 2001
MATTHEW MORGAN TIGNOR


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                     Frederick B. Lowe, Judge

          Jerrold G. Weinberg (Cecelia Ann Weschler;
          Weinberg & Stein, on briefs), for appellant.

          Henry M. Schwan for appellee.


     Rosanne D'Eramo Bell Tignor (mother) appeals from an order

of the Circuit Court of Virginia Beach (trial court) holding

that she and her former husband, Matthew Morgan Tignor (father),

should have joint legal and physical custody of their two minor

children, with each party "having physical custody during

alternating weeks from 6:00 p.m. Sunday to 6:00 p.m. Sunday."

Mother contends the trial court erroneously (1) failed to

consider the required statutory factors; (2) failed to

communicate to the parties the basis for its decision; (3)

concluded that a rotating physical custody scheme was in the

children's best interest; and (4) failed to give any weight to


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
evidence that father routinely involved the children in his

numerous post-separation relationships with women.     We hold that

the trial court did, in fact, consider the statutory factors and

communicated the basis for its decision by adopting the

commissioner's report.   We also hold that the evidence, viewed

in the light most favorable to father, supported the trial

court's implicit conclusion that father's alleged

post-separation relationships had no detrimental impact on the

children.   Finally, under this same standard, we hold the

evidence supported the conclusion that an award of joint

physical custody was in the best interest of the children.

Therefore, we affirm the award of custody.

                                  I.

                              BACKGROUND

     When the parties married in 1990, father was working as a

doctor and mother as a registered nurse.     The parties had a son

in 1990 and a daughter in 1991, and by agreement, mother stopped

working to care for the children.      The parties separated in

November 1996.   In a pendente lite decree entered March 7, 1997,

the trial court ordered that "each party shall have custody of

the children 50% of the time" and that "the parties shall

cooperate to achieve this."    In compliance with the pendente

lite decree, the children spent Monday and Tuesday with mother,

Wednesday and Thursday with father, and Friday, Saturday and

Sunday with mother, and they reversed the pattern during the

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second week, spending Monday and Tuesday with father, Wednesday

and Thursday with mother, and Friday, Saturday and Sunday with

father.

        The trial court directed that the parties and their

children undergo psychological testing and evaluation, and the

parties agreed to have those evaluations performed by Robert J.

Seltzer, a licensed clinical psychologist.      The trial court

referred the custody matter to a commissioner in chancery, who

heard evidence during multiple hearings from February to May

1999.

        The parties presented conflicting expert testimony

regarding the condition of the children at the time of the

hearings and the custody arrangement that would be in the

children's best interest.    After hearing the parties' evidence,

the commissioner found that both parents were fit and had the

children's best interests in mind.       He concluded, however, that

the parties were unable to communicate effectively with each

other and expressed concern over their ability "to actively

support the children's contact and relationship with the other

parent and . . . to cooperate in matters affecting the

children."    As a result, he recommended entry of "a very

specific order with respect to . . . parenting time, which can

be strictly enforced."    Based on a finding that "the children

are doing well now, in spite of their parents' ongoing feud," he

recommended that joint legal and physical custody continue, with

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each of the parties having physical custody during alternating

weeks from 6:00 p.m. Sunday to 6:00 p.m. Sunday, with an

exception for Christmas Eve and Christmas Day.

     Mother excepted to the commissioner's custody

recommendation.   The trial court heard argument on the

exceptions on June 30, 2000, but a transcript of that hearing is

not a part of the record on appeal.     By letter opinion of

October 25, 2000, the trial court overruled mother's exceptions

to the commissioner's custody recommendation.    In the final

decree, entered December 8, 2000, the trial court indicated that

it considered "all applicable law [and] all factors required by

law," and it "confirmed and approved" the commissioner's report

with respect to custody of the parties' children, repeating the

terms of custody in the final decree.    Mother endorsed the

decree "SEEN AND EXCEPTED TO" without setting forth any specific

basis for objection.

                                II.

                             ANALYSIS

     Code §§ 20-107.2 and 20-124.3 allow a court to make a

decree concerning the custody of minor children.    "[T]he

controlling consideration is always the [children's] welfare

. . . ."   Sutherland v. Sutherland, 14 Va. App. 42, 43, 414

S.E.2d 617, 618 (1992).   In determining what custodial

arrangement serves the best interests of a child, the court

shall consider the factors enumerated in Code § 20-124.3.

                               - 4 -
     "It is well established that the trier of fact ascertains a

witness' credibility, determines the weight to be given to [a

witness'] testimony, and has the discretion to accept or reject

any of the witness' testimony."     Street v. Street, 25 Va. App.

380, 387, 488 S.E.2d 665, 668 (1997) (en banc).     These

principles apply to the testimony of both lay and expert

witnesses.   Id. at 387-89, 488 S.E.2d at 668-69.

     On appeal, we view the evidence in the light most favorable

to the prevailing party.   Brown v. Burch, 30 Va. App. 670, 681,

519 S.E.2d 403, 408-09 (1999).    When a circuit court appoints a

commissioner in chancery to assist in a custody determination

and adopts the commissioner's findings and recommendations,

those "findings and recommendations . . . become those of the

supervising court and are due considerable deference on appeal."

Haase v. Haase, 20 Va. App. 671, 679, 460 S.E.2d 585, 588

(1995).   "[A] decree which approves a commissioner's report will

be affirmed unless plainly wrong . . . ."     Hill v. Hill, 227 Va.

569, 577, 318 S.E.2d 292, 296 (1984).

                                  A.

             COURT'S CONSIDERATION OF STATUTORY FACTORS
               AND COMMUNICATION OF BASIS FOR DECISION

     Mother contends the trial court erroneously failed both to

consider the factors enumerated in Code § 20-124.3 in

determining custody and to communicate to the parties the basis

for its decision as expressly required by that same code


                                 - 5 -
section.    We hold the trial court's final decree satisfied these

requirements by stating specifically that the trial court

considered "all factors required by law" and adopting the report

of the commissioner which explained the basis for the award of

joint physical custody.

     Prior to July 1, 1999, Code § 20-124.3 required a trial

court determining child custody to examine all factors

enumerated therein but did not require that specific findings be

made based upon those factors.    As we explained numerous times

in reference to that version of the statute, "the court is not

'required to quantify or elaborate exactly what weight or

consideration it has given to each of the statutory factors.'"

Sargent v. Sargent, 20 Va. App. 694, 702, 460 S.E.2d 596, 599

(1995) (quoting Woolley v. Woolley, 3 Va. App. 337, 345, 349

S.E.2d 422, 426 (1986)).   "As long as evidence in the record

supports the trial court's ruling and the trial court has not

abused its discretion, its ruling must be affirmed on appeal."

Brown v. Brown, 30 Va. App. 532, 538, 518 S.E.2d 336, 338

(1999).

     Effective July 1, 1999, the General Assembly amended Code

§ 20-124.3 to provide that "[t]he judge shall communicate to the

parties the basis of the [custody] decision either orally or in

writing."    See 1999 Va. Acts ch. 634.   Thus, although we need

not address the precise parameters of the communication

required, we note the statute now entitles the parties to some

                                 - 6 -
explanation of the basis for the court's decision.    Here, the

trial court stated in the final decree that it considered "all

factors required by law" in rendering its decision, and it

adopted the portion of the commissioner's report in which the

commissioner stated the basis for his custody recommendation,

thereby satisfying the requirements of the statute.

     For these reasons, we hold that mother did not establish

the trial court erroneously failed to consider the statutory

factors or to communicate to the parties the basis for its

custody ruling.

                                B.

    JOINT PHYSICAL CUSTODY WITH WEEKLY SHIFTING OF RESIDENCE

     Mother contends that the Virginia Supreme Court has

expressly rejected the type of shifting custody arrangement

ordered here and, even if it has not, that the trial court's

approval of such a custody arrangement was plainly wrong under

the facts of this case.   We reject both contentions and hold the

trial court's conclusion that a joint physical custody

arrangement which required the parties' children to live with

mother and then father during alternating weeks was not plainly

wrong.

     Mother argues first that the Virginia Supreme Court voiced

its wholesale rejection of such a custody scheme in Brooks v.

Brooks, 201 Va. 731, 113 S.E.2d 872 (1960), in which a

seven-year-old boy spent four nights each week with one parent

                               - 7 -
and three nights with the other parent.   The Court held that

"this frequent shifting of the custody of the child between the

parents for short periods of time will obviously be detrimental

to his welfare" because it "will result in his having no real

home and no permanent environment and associations."   Id. at

744, 113 S.E.2d at 874.

     We think it important to note, however, that when the

Supreme Court decided Brooks more than forty years ago, the

statutes governing custody did not expressly provide for the

exercise of joint physical custody, 1 see 1954 Va. Acts ch. 234,


     1
       Although no statute expressly provided for joint physical
custody, the Supreme Court sanctioned the award of what it
called "divided custody" both before and after its decision in
Brooks. In Mullen v. Mullen, 188 Va. 259, 49 S.E.2d 349 (1948),
which involved divorced parents residing in different states,
the Court observed:
          While there are certain disadvantages [in
          dividing or alternating custody], there are
          also important advantages and benefits. It
          gives the child the experience of two
          separate homes. The child is entitled to
          the love, advice, and training of both her
          father and her mother. Frequent
          associations, contact, and friendly
          relations with both of her parents will
          protect her future welfare if one of her
          parents should die. It gives recognition to
          the rights of parents who have performed
          obligations as parents . . . provided such
          right be exercised for the welfare of the
          child.
Id. at 272-73, 49 S.E.2d at 355. For those reasons, it approved
an award of custody to the child's mother during the school year
and to her father for a portion of the summer. Id. at 274, 49
S.E.2d at 356.
     The Court applied its reasoning in Mullen to approve
similar results in Andrews v. Geyer, 200 Va. 107, 112-13, 104
S.E.2d 747, 751-52 (1958), Semmes v. Semmes, 201 Va. 117,

                              - 8 -
and a common-law inference existed favoring an award of custody

of a child of tender years to its mother, see Visikides v. Derr,

3 Va. App. 69, 72, 348 S.E.2d 40, 42 (1986).     Since that time,

the legislature has provided that no such presumption or

inference favors either party.     See id.   It also has provided

that a court may award joint legal and/or physical custody and

"shall assure minor children of frequent and continuing contact

with both parents, when appropriate, and encourage parents to

share in the responsibilities of rearing their children," Code

§ 20-124.2(B); see Code § 20-124.1; see also 1988 Va. Acts ch.

794 (adding first statutory reference to joint custody, in

§ 20-107.2), thereby emphasizing "the importance [it] attaches

to joint custody arrangements," Burch, 30 Va. App. at 688, 519

S.E.2d at 412 (focusing on joint legal rather than physical

custody).   Thus, viewed in the context of the current statutory

scheme, the holding in Brooks does not require the automatic

rejection of the shifting physical custody arrangement at issue

here, and we hold the trial court was not plainly wrong in

concluding that shifting physical custody was in the children's

best interest under the facts of this case.

     Despite mother's arguments to the contrary, a careful

reading of the record establishes that father's expert,

psychiatrist Dan Darby, endorsed a custody arrangement whereby


124-25, 109 S.E.2d 545, 550 (1959), and Crounse v. Crounse, 207
Va. 524, 532-33, 151 S.E.2d 412, 418 (1966).

                                 - 9 -
the parties would share physical custody, and the evidence,

viewed in the light most favorable to father, supports this

conclusion.   The evidence indicated that, despite experiencing

problems when their parents first separated, the children were

thriving under the joint physical custody arrangement in effect

at the time of the commissioner's hearing.   Dr. Darby had full

access to the records of Leeann Lane, a licensed clinical social

worker who worked in his office and counseled both children.

Although Lane disagreed with Dr. Darby's opinion regarding

custody, her records confirmed that the children were "coping

well with current stressors" and that "the availability of both

parents is contributing to their well-being."   Joan Eckert, the

principal of the children's elementary school, testified to the

marked improvement of the children, particularly the parties'

son, under the current custody scheme.

     Dr. Darby opined that providing father with at least joint

physical custody was the only way to assure the continued

unfettered access of both parents to the children, which access

he testified was in their best interest.   He opined that if

mother had primary physical custody, her emotional volatility

was likely to interfere with this unfettered access to the

detriment of the children, whereas father had demonstrated an

ability to keep his emotions in check in order to foster the

children's relationship with their mother and to further their

best interests.

                              - 10 -
        Scott Sautter, a clinical psychologist, called Dr.

Seltzer's test results into question, based both on Dr.

Seltzer's selection of tests and his interpretation of the

resulting data, and Dr. Sautter agreed with Dr. Darby's

conclusion that a continuation of joint physical custody with an

equal division of time was appropriate under the facts of this

case.    Although father routinely employed a nanny, the evidence

established that the nanny generally was present only when

father also was present, and Dr. Sautter testified that father's

use of a nanny "who is caring and well-trained" would not offset

the beneficial balance otherwise provided by a joint physical

custody arrangement.

        The custody arrangement in effect at the time of the

commissioner's hearings involved a shift in custody every two or

three days, but Dr. Seltzer testified that the parties' son in

particular had some difficulty adjusting to a mid-week change in

residence.    Thus, the evidence supported the commissioner's

recommendation that it would be in the best interests of the

children to continue the shared physical custody arrangement but

to change residences only on the weekend rather than during the

school week.

        The finder of fact, confronted with conflicting expert

opinions regarding which custody arrangement was in the best

interest of the children, was entitled to conclude that Dr.

Darby's opinion, supported by Dr. Sautter's, was better reasoned

                                - 11 -
than the opinions of Dr. Seltzer and Leeann Lane.     Therefore, we

hold the trial court did not abuse its discretion in adopting

the commissioner's recommendation, based on the testimony of

those experts, to award the parties joint physical custody

during alternating weeks, with the shift in custody to occur

each Sunday evening.

                                  C.

                FATHER'S OPPOSITE-SEX RELATIONSHIPS

      While "[a]n illicit relationship to which minor children

are exposed cannot be condoned," Brown v. Brown, 218 Va. 196,

199, 237 S.E.2d 89, 91 (1977), there is not a "per se rule

prohibiting awarding custody to a parent involved in an

adulterous relationship," Ford v. Ford, 14 Va. App. 551, 555,

419 S.E.2d 415, 417 (1992).    "[I]n determining the best interest

of the child, the court must decide by considering all the

facts, including what effect a nonmarital relationship by a

parent has on the child."     Brown, 218 Va. at 199, 237 S.E.2d at

91.

      Mother contends the trial court erred in failing to give

any weight to uncontroverted evidence that father regularly

involved the children in his promiscuous post-separation

relationships with numerous paramours.    We disagree and hold

that the evidence, viewed in the light most favorable to father,

supports the trial court's implicit conclusion that any impact



                                - 12 -
father's nonmarital relationships had on the children was

insufficient to prevent him from obtaining joint custody.

     Mother attempted to offer evidence of father's

extra-marital involvement with over fifteen different women both

before and after the parties' separation in November 1996 and

before the commissioner's hearings in 1999.   Although the

evidence supports a finding that seven of these women met the

parties' children, no evidence established that father engaged

in inappropriate behavior with these women in the presence of

the children or that the children expressed any concerns over

the nature of father's relationships with these women.

     The evidence did not establish that B.P., C.W., D.M. or

S.D. met the children on more that one or two occasions each.

No evidence indicates that father and any of these women engaged

in any inappropriate behavior in the presence of the children or

that the children knew the adults were anything other than

friends.

     M.G. spent time at father's home in the presence of the

children, shared meals and accompanied them on various outings,

but again, no evidence indicated that M.G. and father engaged in

any inappropriate behavior in the presence of the children.

     J.H. and S.J. traveled with father and the parties'

children on separate overnight trips, with J.H. accompanying

them on a trip to Mount Rushmore and S.J. and her son

accompanying them on a trip to New York.   However, no evidence

                             - 13 -
established what the sleeping arrangements were on the trip to

New York, and J.H. testified that, on the trip to Mount

Rushmore, she shared accommodations with only the parties'

daughter.   Thus, again, the record contains no indication that

father and either of these women engaged in any inappropriate

behavior in the presence of the children.

     Mother offered testimony from Dr. Seltzer that separated

parents "don't want to do things that show [the] children they

can treat marriage vows lightly [by] ignor[ing] the fact that

[the parents] are still married" and that this principle "puts

[father's trips with women and the children] on shaky ground as

a bad example for the children," even if the adults were not

sleeping together.   However, the trial court was not required to

accept Seltzer's testimony about the impact of these trips on

the children.   See, e.g., Street, 25 Va. App. at 387-89, 488

S.E.2d at 668-69.    Further, even assuming that the trial court

accepted this evidence and that father was dating S.J. and J.H.

at the time of the respective trips, no evidence indicates that

the children were aware of this fact.   Finally, even if they had

been aware of this fact, it would not compel a finding that

awarding joint custody of the children to both parents was not

in their best interest.

     Thus, the evidence, viewed in the light most favorable to

father, did not establish that the children were being exposed

to father's allegedly illicit relationships in such a way that

                               - 14 -
the exposure rendered the trial court's custody determination

plainly wrong.   See, e.g., Ford, 14 Va. App. at 555, 419 S.E.2d

at 417 (in affirming award of joint custody, noting that father

and lover whose home he shared maintained separate bedrooms and

stayed in separate hotel rooms when they and the child traveled

together).

                                 III.

     For these reasons, we hold the evidence supported the

conclusion that an award of joint physical custody was in the

best interest of the children.    Therefore, we affirm the award

of custody.

                                                          Affirmed.




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