Richard B.Schoonover v. Petula Lee Green Schoonover ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
RICHARD B. SCHOONOVER
MEMORANDUM OPINION *
v. Record No. 0554-99-3 PER CURIAM
SEPTEMBER 7, 1999
PETULA LEE GREEN SCHOONOVER
FROM THE CIRCUIT COURT OF FLOYD COUNTY
Ray W. Grubbs, Judge
(Harry F. Bosen, Jr.; Harry F. Bosen, Jr.,
P.C., on brief), for appellant.
(John S. Huntington, on brief), for appellee.
Richard B. Schoonover (father) appeals from the February 17,
1999 order of the circuit court changing custody of the parties'
two sons to Petula Lee Green Schoonover (mother). On appeal,
father contends that the trial court erred by finding (1) that
mother proved that there had been a material change in
circumstances since the last custody decision; and (2) that the
transfer of custody was in the children's best interests. 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.
As the party seeking to modify custody, mother bore the
burden to prove "(1) whether there has been a change of
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
circumstances since the most recent custody award; and (2) whether
such a change would be in the best interests of the child."
Hughes v. Gentry, 18 Va. App. 318, 321, 443 S.E.2d 448, 450-51
(1994) (citing Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921
(1983)). See Code § 20-108. The decision to modify a child
custody order is committed to the sound discretion of the trial
court. See Wilson v. Wilson, 18 Va. App. 193, 195, 442 S.E.2d
694, 695-96 (1994). "'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.'" Id. (quoting Eichelberger v. Eichelberger, 2
Va. App. 409, 412, 345 S.E.2d 10, 11 (1986)). The trial court's
determination of whether a change of circumstances exists and its
evaluation of the best interests of the child will not be
disturbed on appeal if the court's findings are supported by
credible evidence. See Walker v. Fagg, 11 Va. App. 581, 586, 400
S.E.2d 208, 211 (1991).
Material Change in Circumstances
Father contends that the trial court entered its most
recent custody order on September 24, 1998, and, therefore,
mother was obligated to prove that there had been a material
change in circumstances during the period between the September
and December hearings. We disagree. It is apparent from the
record that the trial court made no final custody determination
in its order of September 24, 1998. The trial court did not
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deny mother's motion to change custody. In the September order,
the trial court found that it would be in the children's best
interests to have father retain custody and to increase mother's
visitation. However, the trial court ordered father to arrange
for the educational testing and counseling of the children as
recommended by the licensed clinical psychologist. Significantly,
the trial court also scheduled an additional hearing in December
"regarding the children's education and counseling." The trial
court opened the December hearing by noting that "we're here for
review of the custody and visitation arrangement." During that
hearing, the court noted that it was being held
for the Court to review whether or not a
correct decision was made last time and to
see the interaction of the parents with the
children and how their progress was being
noted within the classroom and outside the
classroom. . . . I wanted the opportunity to
review the matter to answer some questions
that the Court had. That was the purpose,
really, of this proceeding.
Thus, the December hearing was an additional evidentiary
hearing on mother's pending motion. Mother was required to
present evidence that there had been a material change in
circumstances since the 1993 order under which father received
physical custody.
"Whether a change of circumstances exists is a factual
finding that will not be disturbed on appeal if the finding is
supported by credible evidence." Visikides v. Derr, 3 Va. App.
69, 70, 348 S.E.2d 40, 41 (1986). At the time mother filed her
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motion, the boys were five years older than they were when the
trial court entered the original custody order. In 1993, only
the older boy had begun elementary school. In 1998, both
children were experiencing difficulties in school. Therefore,
credible evidence supports the finding of the trial court that
there had been a material change in circumstances since the
previous custody order.
Best Interests of the Children
"In matters of a child's welfare, trial courts are vested
with broad discretion in making the decisions necessary to guard
and to foster a child's best interests." Farley v. Farley, 9
Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990). We find no
abuse of discretion in the trial court's finding that it was in
the best interests of the children to change custody.
At the December 1998 hearing, the parties presented evidence
concerning the children's progress in school. The evidence
demonstrated that father did not respond when teachers sent home
notes indicating that the older son was not turning in his
homework. Father did not respond to teachers' requests for
conferences. Despite the fact that the older boy received only Ds
and Cs on his first two report cards for fifth grade, father
waited until two weeks prior to the hearing to meet with the
teachers to discuss the boy's schoolwork. The trial court found
that father had "done nothing to support your son in the needs
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that have been expressed here insofar as his learning
advancement is concerned."
Mother presented evidence that she remained involved in the
boys' education despite the fact she did not have custody. She
met with the teachers and came to the school to have lunch with
the boys.
In addition, despite the trial court's expressed concerns
about the parents' refusal to cooperate with each other, father
refused to enroll in the Children of Divorce seminar when so
directed by the court. Mother completed the class.
Therefore, credible evidence supports the finding of the
trial court that it was in the best interests of the children to
change custody. Accordingly, the decision of the circuit court is
summarily affirmed.
Affirmed.
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