Ezzat M. Zein v. Nora Zein Burgan ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
EZZAT M. ZEIN
MEMORANDUM OPINION *
v. Record No. 0679-98-4 PER CURIAM
MAY 4, 1999
NORA ZEIN BURGAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
(Ezzat M. Zein, pro se, on brief).
(Nora Zein Burgan, pro se, on brief).
Ezzat M. Zein appeals the decision of the circuit court
modifying his visitation with his children and deciding other
issues. Zein raises eleven questions on appeal, but only four
distinct issues. As summarized, Zein contends that the trial
court erred by (1) changing his visitation without sufficient
evidence that there was a material change in circumstances or
that it was in the best interests of the children; (2) failing
to find that Zein has custody of the children for 118 days a
year; (3) failing to impute sufficient income to his former
wife, Nora Zein Burgan; and (4) failing to award husband
attorney’s fees and court costs. Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
merit. Accordingly, we summarily affirm the decision of the
trial court. See Rule 5A:27.
Modification of Visitation
Zein contends that the trial court erred when it ruled that
Zein’s visitation with the children would end on Sunday evenings
rather than Monday mornings. We find no error in the trial
court’s decision.
“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). The
trial court is vested with broad discretion to make the
decisions necessary to safeguard and promote the child’s best
interests, and its decision will not be set aside unless plainly
wrong or without evidence to support it. See Farley v. Farley,
9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990). When
considering a modification of visitation, a trial court applies
a two-part test to determine “(1) whether there has been a
[material] change of circumstances since the most recent . . .
award; and (2) whether a change . . . would be in the best
interests of the child.” Visikides v. Derr, 3 Va. App. 69, 70,
348 S.E.2d 40, 41 (1986).
The trial court denied Burgan’s motion to modify legal
custody. However, based upon evidence heard during an ore tenus
hearing, including an in camera discussion with the parties’
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children, the trial court ruled that it would change the current
visitation schedule to have the children returned to the primary
custodian, Burgan, by 7:30 p.m. on Sunday nights.
I believe that that is an unnecessary
disruption for the children. They then have
to take clothes for Friday night, all day
Saturday, Sunday and for school on Monday.
And I realize the kids have clothes over at
[Zein’s]. But I don’t believe at this point
in time that it’s in the children’s best
interest to have to sleep over at dad’s on
those Sunday nights.
Under Code § 20-108, the trial court has authority to
modify visitation “on its own motion . . . as the circumstances
of the parents and the benefit of the children may require.”
The visitation schedule was established by order entered
December 9, 1994, more than four years earlier. Under the
current circumstances, the trial court found it to be in the
best interests of the children to modify visitation. Its
reasoning was sound, and focused on the children’s benefit. We
find no error in the trial court’s decision to modify
visitation.
Calculation of Child Support
Zein contends that the trial court erred in its calculation
of child support because it failed to follow the provisions for
shared custody. See Code § 20-108.2(G)(3). Under Ewing v.
Ewing, 21 Va. App. 34, 37, 461 S.E.2d 417, 418 (1995) (en banc),
a “day” is defined as “any continuous twenty-four hour period,”
and does not include periods when the child “‘is attending
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school, is placed in non-parent day care, or placed with a third
party.’” Despite Burgan’s testimony at trial that Zein had the
children for 118 days, the record demonstrates that Zein does
not have more than 110 days of custody, as “day” is defined
under the statute. Therefore, the trial court did not err in
its calculation of child support.
Imputation of Income
Zein also contends that the trial court erred by
calculating child support based upon Burgan’s testimony that she
earned only $11,000 in income. Burgan testified that she was
working full time, that her income came solely from Events
Unlimited, and that she continued to operate Samadi Sweets
without profit. The trial court believed Burgan’s testimony,
and relied upon her testimony to reduce the income imputed to
Zein. Evidence supports the trial court’s finding as to
Burgan’s income.
Attorney’s Fees and Costs
Finally, Zein contends that the trial court erred by
failing to award him attorney’s fees and costs. An award of
attorney’s fees is a matter submitted to the sound discretion of
the trial court and is reviewable on appeal only for an abuse of
discretion. See Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d
554, 558 (1987). The key to a proper award of counsel fees is
reasonableness under all the circumstances. See McGinnis v.
McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).
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The trial judge noted that “I have spent at least two or
three times as much time on this case as I have for any other case
that I presided over during my tenure on the bench.” In the final
order, the court required that
no further hearings are to be noticed by
either party. All proposed hearing notices
should be transmitted to the chambers of the
undersigned judge with a proposed notice
praecipe and cover letter, and that after
review by the Court, the hearing may be
noticed if permission is given by the Court.
Zein appeared pro se at the hearings below, and therefore
incurred no attorney’s fees in connection with the proceeding
from which this appeal is taken. Moreover, the trial court
directed both parties to limit future litigation. We find no
abuse of discretion in the trial court’s denial of attorney’s fees
or costs to Zein.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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