Joseph A. Wiencko, Jr. v. Akemi Takayama
62 Va. App. 217
| Va. Ct. App. | 2013Background
- Husband (Wiencko) and wife (Takayama) divorced after separation in 2011; they have four sons (b. 2000, 2002 twins, 2004). Wife is a professional violinist; husband is a mechanical engineer who previously earned substantial income but lost his last contract in 2009 and became the primary at-home caregiver.
- Psychologist Dr. Lewis evaluated both parents: he found mother psychologically healthy and concluded father was rigid, narcissistic in style, and had undermined mother’s parental authority with the children.
- Guardian ad litem (Holman) recommended sole legal and physical custody to mother; she relied in part on prior interviews (including earlier protective-order matter) and on Dr. Lewis’s interviews with the children; father objected that she did not re-interview the children.
- Trial court awarded joint legal and physical custody with primary physical custody to mother, a detailed visitation schedule for father, and travel restriction barring mother from taking the children to Japan without father’s written consent or court order.
- Equitable distribution: court awarded the marital residence to husband, the violin bow to wife, and awarded wife the marital portion (~$68,000) of her retirement accounts; husband retained substantial separate retirement accounts. Husband appealed custody (Equal Protection), equitable distribution, consideration of the GAL report, and scope of travel restrictions.
Issues
| Issue | Plaintiff's Argument (Wiencko) | Defendant's Argument (Takayama) | Held |
|---|---|---|---|
| 1. Equal Protection — custody decision | Court awarded custody based on stereotypical view that men should be providers; penalized him for being a stay‑at‑home dad | Court based custody on statutory best‑interest factors, expert and GAL reports showing mother better suited | No Equal Protection violation; custody decision supported by §20‑124.3 analysis and record evidence |
| 2. Equitable distribution — use of separate property | Court relied on husband’s large separate retirement accounts to justify awarding marital retirement assets to wife | Trial court may consider overall fairness; husband’s separate property should be relevant | Error: trial court misapplied Code §20‑107.3 by considering husband’s separate property; remanded for redistribution |
| 3. Reliance on guardian ad litem report | GAL’s investigation was inadequate (did not re‑interview children); report biased and should not be given weight | GAL relied on prior interviews, Dr. Lewis’s child interviews, family contacts and documents; trial court has discretion | No abuse of discretion; GAL’s report permissibly considered in whole record and trial court did not adopt it wholesale |
| 4. Travel restriction scope | Trial court should have barred all international travel to prevent circumvention (fear wife could go elsewhere then to Japan) | Travel ban to Japan, plus requirement of father consent/court order, is reasonable given evidence that wife intends to remain in U.S. | No abuse of discretion; limiting ban to Japan (plus consent requirement) was a reasonable best‑interest accommodation |
Key Cases Cited
- Yarborough v. Commonwealth, 217 Va. 971, 234 S.E.2d 286 (presumption trial court applied law correctly)
- McCreery v. McCreery, 218 Va. 352, 237 S.E.2d 167 (as‑applied equal protection challenge in custody; requiring unambiguous showing of invidious sex discrimination)
- Bottoms v. Bottoms, 249 Va. 410, 457 S.E.2d 102 (trial courts should consider GAL recommendations)
- Lawlor v. Commonwealth, 285 Va. 187, 738 S.E.2d 847 (abuse of discretion standard for reviewing discretionary rulings)
- McIlwain v. McIlwain, 52 Va. App. 644, 666 S.E.2d 538 (appellate standard for reversing equitable distribution)
- Reid v. Reid, 7 Va. App. 553, 375 S.E.2d 533 (distinguishing cases that improperly base equitable distribution on earning capacity)