*1 117 Richmond Semmes, v. Faith Van Clief Semmes Samuel Prewitt Jr. 22, 1959. June Record No. 4917.

Present, All the Justices. states the case. R. Aubrey Bowles, Armonde Paxson; (C. Bowles, Anderson, Jr. Clarke & Boyd, Herod; Marshall & Paxson, Smith, brief), for the appellant. S. Sr. and Battle, S. & Battle Battle, Minor, (Perkins,

John John Jr. brief), appellee. delivered the J., of the court. Snead, Faith Van Clief Semmes (now Faith Van Ault), Clief Appellant, from a decree rendered December 1957 awarded appeal the court denied her below motion to a decree whereby entered of her infant concerning daughter, Faith Semmes, father, Cameron whose had been granted Samuel Semmes, Prewitt to certain Jr., appellee, subject *2 privileges appellant. were Charlottesville, married at on litigants August Virginia,

12, At that time 22 was 18 and was age appellant appellee Faith, 26, old. Their on 1952 and was born March years daughter, no other 4, children 1953 were bom of this union. On August Semmes his wife executed a settlement and custody property In that agreement. among they agreed, things, appellee would have until child this custody arrangement or a court subsequently changed by agreement by competent It was further that the child remain would jurisdiction. agreed Thereafter, 1 each from 31 of August appellant year. filed her bill in the of Albemarle for a divorce Circuit Court appellant a et mensa On 1954 she was a divorce January granted County. tkoro was on the of desertion wherein the above agreement grounds ratified, decree was and confirmed decree. This approved by matrimonii into a decree a vinculo of divorce merged September were 1954 and other terms in the former decree perpetuated. husband, on Ault, married Bromwell Jr., present Appellant York in New 22, 1955 and since then has resided with him in accordance While Faith was City. visiting for his 1955 wrote asking agreement, appellee July appellant so that she a and the decree consent to agreement him. This would have full custody, subject was refused. request promptly she filed a which

On alleged petition August appellant “was and been the child emotionally, physically, bewildered, not and has disturbed enjoyed psychologically can a mother comforts, provide.” guidance security Faith should was convinced that that she She further alleged She would a care where she under her feeling security. regain both to hear evidence court parties, prayed “proceed Court, as the of said or agreement, looking perpetuation best interests to be to the determine its mature judgment, said child.” 19, 1955. There was filed to the

An amendment August petition dated the execution that since agreement, alleged had the circumstances of the August materially principals married; she that she She asserted changed. possessed happily “a wholesome and rounded for the domestic background child;” was not and lacked married rearing girl appellee educa- “for the living arrangements appropriate proper grooming, tion and child;” of a that he not training girl mentally, morally, her, or rear temperamentally psychologically equipped properly while in Faith had been associa- his committed to tions and environments not calculated interests. for her best in his answer and denied the material

Appellee, cross-petition, and asserted that was not a fit to have charges, of the child she had demonstrated her conduct that immoral, she is and unstable; that such well-fixed irresponsible characteristics were not altered the fact that had been remarried for of 7 months to the of her prior filing petition; care, that while Faith was under his she was happy, healthy well and that if emotional adjusted, suffering disturbance as claimed *3 it was due to physical by appellant, ap- influence on her since commenced on pellant’s period 1, 1955. He for her absolute and full prayed custody, subject June to the of to visit her for reasonable times privilege and at reasonable intervals while under his care and custody.

Extensive were taken and filed on behalf of both depositions ore terms and an which consumed four and one- litigants November, half was had in 1955. In the chancellor’s written days 11, 1956, observed, filed on he January among things, that the conduct of both the time of their litigants “during marriage was such as to recommend neither of them suitable to raise persons Ault, child;” an infant husband, appellant’s present appeared be in “a to substantial and rehable that there was general person;” of conduct on since her mar- improper appellant’s part Ault, to and that there was evidence that to be riage they “appear a normal life.” He found there was no evidence of leading any conduct the divorce; that the evidence improper by appellee showed his of fife to have he has been a way appeared changed “devoted and attentive” father to the child who was cared for by a nurse in a home him and an unmarried sister. occupied by

The further stated: chancellor I am convinced that the “Although the effective cause of the mother was I if were separation, equally be no would reversion to convinced that there her former course conduct, of I should not award the of the child hesitate to custody to her. ex- The evidence before me indicates a course of immorality of before her the time to Mr. Semmes to tending marriage with Mr. Ault. I assume that months of cannot ten good conduct most which time Mrs. of Ault during pregnant sufficient to as show such a of character to complete change justify her care the infant child.” committing girl He concluded that the of child should remain with custody father, of that the mother all should not deprived visitation, and that the for the agreement period provided be reduced. 1956, On filed leave to offer motion for June

further and evidence to that there had been no show contemporary reversion her former course of conduct since November, 1955. motion decree entered This was overruled 1956 which based filed June decree reduced the visitation as fixed in custody *“* * It and confirmed former decrees. agreement provided: [T]hat, Court, to further order subject custody control of Faith Cameron Semmes be and fixed with awarded to Semmes, Samuel to the Faith Van Clief Prewitt Jr., right subject Semmes to said of Samuel Prewitt visit child while Semmes, times, intervals and at reasonable for reasonable Jr., upon last notice, reasonable the child visit her during three time for weeks of in each August excluding necessary year, # * re travel, litigants Jurisdiction future modifi tained for the the decree or enforcing purpose cation of its provisions.

On filed motion to modify part May of Faith and the decree relating award temporary periods subject provision *4 deem reason- and as the court of visitation might by appellee 28, 1956 that on December able. She had married alleged appellee Gardner, California, who was in Los Angeles, Virginia Scripps 20, and was on 1956 divorced from her husband granted 1952; and November of her bom two boys cüstody June woman, and and become a mature stable that she had (appellant) son, her infant and that has been successful she rearing competent Ault, whom Ault, born of her union to Bromwell Courtland further child’s affection. She Faith had alleged: strong developed “* * * a sufficient the reasonable time has warrant [TJhat elapsed life, habits, conclusion from their nature that such mode very home, her said and character of activities conduct general status, and associates and life attained will family permanent continue; that it is conclude therefrom that will reasonable to be no on the former course reversion part complainant to indicate conduct that have been deemed the Court may that not an fit custodian of was at one time complainant entirely child.” infant demurrer and his answer motion was overruled

Appellee’s was filed. In it he the material asserted denied duly allegations that the decree a modification of nothing alleged justify married 1956. He stated that he was happily presently and that influence of the Faith home life and enjoyed parental order; that she had become well and that highest adjusted be would detrimental to her welfare. sought York were taken behalf of in New on Depositions City on behalf resided. A three in Los where he appellee Angeles ore terms commenced on the motion to day its written 1957. The court filed second September October 29, 1957 in which counsel were advised prayer stated in There the chancellor was denied. part:

“The evidence at the recent although fairly presented the mother extensive be summed On behalf of rather briefly. up has that since her Mr. Ault there been shown no. return she to the of which conduct guilty. type formerly the child mother to It was is an further shown she exceptional is a normal born of her that the home life second marriage, welfare and other one, in church that she become active happy in her children, Faith would work involving can home have all the not supply, money advantages well Persons care, and a environment. quali- loving satisfactory for observa- fied to cases their in some opportunities except speak, was now that she limited, tion were somewhat expressed In an emotional mature, or and stable from standpoint. maturing, her former return to words, that there would assuming to care for suitable conduct, the mother would be entirely favorable. the environment would child, entirely home, far to the situation in the father’s now although “Looking *5 fewer testified, witnesses evidence, the which picture presented by I have reason is similar. The father has remarried reject, very and his wife woman, is an well educated present intelligent, two sons a former one of whom is near the by marriage, age child, Faith. is She also at a child Mr. Semmes. present expecting life home of these a normal also reveals description parties home, in which Faith all the receives care and happy loving which secure. advantages money may

“The inferences which are drawn for Mrs. Ault that counsel Mrs. Semmes is not a to rear a suitable present young are I Nor find that the misdeeds of do girl entirely unjustified. Mrs. brother, Semmes’ whom she has for or not seen years, traffic relevant, violation of sister, if constitute substantial threat the environment in which the child now lives. other words,

“In the evidence either shows that with parent home, child would a education, have suitable a a normal good environment, and suitable and healthy loving parents.

“This case, what an altera- considerations would being justify tion of the Court cannot present arrangement? Certainly, time to time hear evidence and make a determination that both suitable, homes are custodians, and both but parents proper is a balance in favor one other and a slight change should therefore be made. Such a would be not policy only legally unsound, but detrimental to the welfare of the child. practically

“The that a is facie mother custodian principle prima a child, settled, a child, female is well but young particularly it must borne in mind that the mother in this case has been shown two, to be an unsuitable custodian or at three most, years Whether the in her environment effected a ago. change permanent character, influences, in her or whether adverse change subsequent best, occur, are, are at sure to result in adverse effect matters of speculation opinion.

“Moreover, is, child hands according testimony, good and well She has been care most of father’s for adjusted. four a her is uncertain. At What effect will years. change neces- sides testified to the on both previous psychiatrists At the base, stable the harmful effects sity change. confidence, Allen, Dr. whose I have great present he not that a harmful stated that would would be change say it would involve risk. the mother has not borne the burden

“I am the that the welfare requires showing risks which hand, does involve two made. the other On be taken.” I do not feel should motion to decree of December appellant’s

By *6 re- decree and the was 15, 1956 was overruled the decree of June the court action of in all to which affirmed and continued respects, is whether issue Thus the paramount excepted. appellant objected be best served child would interests of the the evidence shows that the decree of a modification of the custody provisions and circumstances in conditions 1956 because of a change its entry. the child’s to be detrimental that it would concluded

We are concerned far as the as welfare serve litigants good purpose conduct of course of to review appellant regarding the time to of her to to marriage marriage up appellee prior to his to Ault, and the conduct of to marriage appellee prior to it divorce. Suffice to the time of their say up appellant execrable, horrible, was conduct bordering shocking chancellor’s We was also terrible. unbelievable. His agree the time that their behavior in his first statement “during them suitable neither of such as to recommend of their marriage child.” raise an infant to persons that the welfare the rule we have established “In Virginia, consideration infant is controlling primary, paramount, over the between in all controversies court custody parents matters are subordinate.” All other minor children. their (Citing E. 2d 270, 49 S. Va. Mullen, Mullen v. cases) was no evi- that there after in its first The court finding to since her conduct on dence appellant’s part improper life, stated: a normal be and that Ault leading they appeared cause the effective mother was that the I convinced am “Although would be that there convinced I if were equally separation, conduct, not hesitate I should course of to her former no reversion second In the child to her.” award opinion, custody course of her former returned to had not after finding “* * * would be no conduct, the court said: [Ajssuming be an mother would conduct, her former entirely return would be child, and the environment care suitable the doctrine that The chancellor favorable.” recognized entirely children of tender awarded generally years, especially girls, the mother in father where will be preference equally they well cared 270, 271; for. Mullen v. v. Brooks Mullen, supra, pp. Brooks, 200 Va. 106 S. E. 2d 611. It was not here applied because had been to be an unsuitable custodian two. proven or three and because he whether “the years previously questioned in her environment had effected a in her change permanent character, or influences, occur, whether adverse which are sure to * * result in an adverse effect He also stated it uncertain may what effect a would have on Faith. The chancellor concluded that had not borne burden of showing the best interests of the child and further required change he deem did not it advisable to take the risks involved in such a change.

We think the in not chancellor awarding justified However, the mother at that time. that some risks argued are father, involved at home in Los Besides her Angeles. appellee’s Faith now two and a half- living step-mother, step-brothers brother half-sister.

From the time her of to Ault until the in Septem- ber 1957 two and months had and there nowas years eight expired reversion her former course of conduct. For that improvement should she be commended and She has been an encouraged. excep- the to Ault. She tional mother to her son born of happy marriage has become active in the church and welfare organizations involving a children. If a mother is and suitable close ties with person, are for the interests of the child. her child best unquestionably Mullen v. said: Mullen, In 273 we supra, pp. the or the of

“The of dividing alternating advisability there are certain dis- considered. While child has been seriously division, are and in such advantages important advantages homes. the of two It the child benefits. separate experience gives love, advice, and of both her the The child is entitled to training contact, associations, father and her mother. friendly Frequent her welfare if will future relations with both of parents protect the of die. It one of recognition gives parents Andrews See as who obligations parents.” performed parents v. E. 2d 747. 104 S. 200 Va. Geyer, of at child, who was of this the welfare age We think years a reinstatement the the time of required September for as was with of provided decrees, divorce confirmed making custody agreement interfere not to in order might necessary any adjustment determine Future events will the child’s school term. regular or reduction cut-off, whether the child’s welfare enlarge- requires should be full ment in visitation or whether privileges accorded of visitation or without awarded privileges 20-108, §in Code The court is authority provided appellee. 1950, which reads: as from time time after

“The court decreeing provided may, or on section, of either parents, preceding petition officer probation its own motion or of superin- upon petition forth the reasons welfare, shall set tendent of public petition decree alter such for the relief revise and concerning sought, a new and make care, maintenance of the children custody, same, of as the circumstances decree parents concerning the benefit of the children require.” action

We find error in the court’s no reversible excluding exerted on the evidence certain influences likely pertaining certain of child while in the rejection appellee. class of Ault and the offered to show the qualifications at York was have in New children and associates Faith would admitted evidence found on the most harmless error as court suitable, that his home he was a reliable substantial person; was no There environment and that normal and prevailed. healthy admit error in reflecting diary refusing appellant’s personal 11, 1956. details of her life since the court’s daily modified to stated, For the reasons the decree appealed child with visitation period extent ap- enlarging for case is remanded affirmed. The modified is as so pellant here with the views decree consistent expressed. entry costs he will recover his substantially having prevailed, Appellee § 14-178, Code as in this court provided *8 remanded. and

Modified J., and Spratley, dissenting part. concurring part the of that unable to majority I find portion agree myself Decem- its decree of court to directs the trial which of the without ber contemporary presentation that has attained a status of conduct showing appellant permanently of the visitation of her child. I justifying enlargement would affirm the decree toto, to the leaving appellant opportunity to in the future her claim to an extension of the Code present period. Section 20-108'. In so we would be and doing following precedent the facts found the chancellor. heeding The final decree correct, of the trial court is to and presumed the burden is on the to show it is Furthermore, that wrong. the decree is us unless it or without binding upon plainly wrong evidence to it. conflict, The evidence is in but that support accepted the chancellor his Collins v. Collins, conclusions. amply supports 183 Va. 408, 32 S. E. 657; 2d v. 200 Va. Phillips Kiraly, S. E. 2d 855; Nix v. Va. Nix, 186 41 S. E. 2d 345.

There was no from the decree the the of appeal awarding child to The at the final appellee. only question presented was whether in the conduct the of any permanent change modification the decree of entered on justified that The had an to chancellor day. exceptional opportunity pass the evidence the be attached thereto. to The upon weight ques- tion whether mother or father should have the of the child has been before the chancellor since 1955. The record in the case consists of more than 750 of most of printed pages testimony, ore tenus in two to seven and heard periods amounting half days. chancellor, him, in the exercise

The of discretion allowed gave situation, is, full consideration to controlling paramount in a exercise a the welfare of the child. He was wiser position this Court. In the exercise than members of of discretion risk he found himself to take the of discretion unwilling injury that, nature, extent, him in consideration of the child. I agree misconduct of a matter and duration appellant, reformation was whether or not permanent. speculation to me far more than the child seems risk of important injury mother. It is clear from the wishes natural perfectly fair, he will consideration full, chancellor give future enlargement petition decree, last since the A and half elapsed year period. under the statute to show has full mother opportunity of her child. aas status partial custody proper person present method avoid safe nature A specula- permits proceeding one. error, tion prejudices *9 set out the The cases cited in the controlling majority opinion in each of them casual examination will disclose principles, here, different from those set of facts respect wholly especially involved. status of one or the other of the parents