John R. Zampolin v. Mary Elizabeth Barnum Hicks ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
JOHN R. ZAMPOLIN
MEMORANDUM OPINION *
v. Record No. 1647-99-2 PER CURIAM
DECEMBER 28, 1999
MARY ELIZABETH BARNUM HICKS
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
(David B. Hargett; Morrissey & Hershner, PLC,
on brief), for appellant.
(Susan C. Armstrong; Melissa J. Roberts;
Mays & Valentine, L.L.P., on brief), for
appellee.
John R. Zampolin appeals the decision of the circuit court
granting the petition of Mary Elizabeth Barnum Hicks to modify
visitation. Zampolin raises the following issues: (1) whether
the circuit court had jurisdiction when a Petition for Custody was
filed by Zampolin in the juvenile and domestic relations district
court before Hicks filed a Petition for Reinstatement in the
circuit court; (2) whether the trial court erred by refusing to
receive and properly consider the son's testimony as to his
preference; and (3) whether the trial court abused its discretion
in evaluating the evidence and determining the best interests of
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the child. Upon reviewing the record and briefs of the parties,
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. See Rule 5A:27.
Jurisdiction
The circuit court awarded Hicks legal and physical custody
of the parties' son and referred this matter to the juvenile
court. On March 14, 1996, the circuit court reinstated the
case, denied Hicks' Motion to Modify Decree, and struck the
matter from the docket without referring it to the juvenile
court. On July 21, 1997, the circuit court granted Zampolin's
motion to reinstate the matter, later denied Zampolin's motion
to modify custody, visitation and child support, and struck the
matter from the docket without referring it to the juvenile
court. When Hicks filed a Petition to Show Cause in the circuit
court on November 6, 1997, alleging support arrearages, the
circuit court referred that issue to the juvenile court.
On April 8, 1999, Zampolin filed in the juvenile court a
motion to amend custody, and Hicks filed in the circuit court
her petition to modify visitation. The circuit court granted
Hicks' petition to reinstate the case on the circuit court's
docket.
We find no error in the circuit court's exercise of
jurisdiction. The record clearly establishes that custody and
visitation matters were not transferred to the juvenile court
after being reinstated in the circuit court. The order entered
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October 10, 1997 struck the case from the docket after denying
Zampolin's petition to modify custody, visitation, and child
support. It did not create concurrent jurisdiction with the
juvenile court. Cf. Crabtree v. Crabtree, 17 Va. App. 81, 84,
435 S.E.2d 883, 886 (1993) (holding that a transfer from a
circuit court to a juvenile court pursuant to Code § 20-79(c)
"conveys concurrent jurisdiction on the [juvenile court] to hear
those matters, but . . . does not divest the circuit court of
its continuing jurisdiction to consider those issues, should it
exercise its discretion to do so"). Moreover, in the absence of
a transfer, the juvenile court lacked jurisdiction to hear this
matter. Therefore, the circuit court retained jurisdiction to
reinstate the matter. Zampolin's contention that Hicks engaged
in "forum shopping" is without merit.
Consideration of the Child's Preference
Zampolin contends that the circuit court erred by failing
to consider the preference of the parties' son, Jack, contrary
to the requirement of Code § 20-124.3(7). We find this
contention to be without merit.
By order entered June 18, 1999, the circuit court granted
Hicks' motion to modify visitation due to her upcoming
relocation to Georgia with her current husband. Code
§ 20-124.3(7) provides:
In determining best interests of a child for
purposes of determining custody or
visitation arrangements including any
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pendente lite orders pursuant to § 20-103,
the court shall consider the following:
* * * * * * *
7. The reasonable preference of the child,
if the court deems the child to be of
reasonable intelligence, understanding, age
and experience to express such a preference
. . . .
The circuit court spoke with the child in camera, noting
that "I don't want him to think there's some repercussion from
whatever he tells me." Neither party objected to the trial
judge's in camera discussion. We find no abuse of discretion in
this procedure, which was clearly designed to allow the court to
hear from the child without imposing upon him the unconscionable
task of expressing a preference in front of his parents or their
representatives.
After meeting with Jack, the trial court noted that he was
"an impressive young man" and that "it was a pleasure to talk
with him." In its written order, the trial court acknowledged
that "[Jack's] preference is that he not leave Richmond. This
is expressed more in the normal apprehension of the unknown than
a preference for one parent over the other." Therefore, the
trial court considered the preference expressed by the child, as
well as its basis. We will not reverse the trial court's
evaluation of testimony heard ore tenus.
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Best Interests of the Child
As the party seeking to modify visitation, Hicks bore the
burden to prove that a change of circumstances occurred and that
such a change in visitation would be in the best interests of
the child. See Code § 20-108. See also Parish v. Spaulding,
257 Va. 357, 513 S.E.2d 391 (1999); Hughes v. Gentry, 18 Va.
App. 318, 321, 443 S.E.2d 448, 450-51 (1994). "In matters
concerning custody and visitation, the welfare and best
interests of the child are the 'primary, paramount, and
controlling considerations.'" Kogon v. Ulerick, 12 Va. App.
595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). Trial
courts are vested with broad discretion in making the decisions
necessary to guard and to foster a child's best interests. See
Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795
(1990). It was uncontested that there was a change in
circumstances due to Hicks' pending relocation to Georgia with
her new husband. "'The court, in the exercise of its sound
discretion, may alter or change custody or the terms of
visitation when subsequent events render such action appropriate
for the child's welfare.'" Wilson v. Wilson, 18 Va. App. 193,
195, 442 S.E.2d 694, 695-96 (1994) (quoting Eichelberger v.
Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986)).
The trial court's evaluation of the best interests of the child
will not be disturbed on appeal if the court's findings are
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supported by credible evidence. See Walker v. Fagg, 11 Va. App.
581, 586, 400 S.E.2d 208, 211 (1991).
Zampolin contends that the circuit court failed to properly
weigh the evidence and failed to consider the best interests of
the child before granting Hicks' motion to modify visitation.
The trial court heard the evidence, including the testimony of
the parties and their witnesses. In making its decision, the
trial court expressly considered the statutory factors set out
in Code § 20-124.3. The court noted that it found "no factor
weighing in favor of or against either parent, except as
specifically discussed here." The court then noted that,
[f]rom the earliest times, [Zampolin's]
hostility toward [Hicks] has prevented any
significant cooperation with the mother.
His testimony at the hearing was heavily
weighted toward tearing down [Hicks] as
opposed to emphasizing his strengths. For
years he has kept copious notes and diaries
recording instances which he believes will
show the mother in a negative light. . . .
His record keeping is not reflective of
someone attempting to work with the other
parent for their child's good, but rather a
disposition to build a case for an advantage
over [Hicks] and to cast her in a negative
light. At the hearing, [Zampolin] made no
meaningful proposal or plan to enable the
son to maintain a relationship with his
mother should he gain custody. When asked
that question, it was apparent that he had
given the subject no consideration
whatsoever.
Based upon the evidence, including the testimony of the parties,
and after considering the statutory factors, the trial court
granted Hicks' motion to modify visitation. The circuit court's
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decision was based upon its evaluation of the testimony heard
ore tenus and its determination of the child's best interests.
The trial court also considered but rejected Zampolin's Motion
for Reconsideration, in which Zampolin raised at length the
arguments on which he based this portion of his appeal.
Credible evidence supports the trial court's factual
determinations. We find no grounds to reverse the trial court's
exercise of its discretion authority.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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