John S. Lewis v. Kathleen A. Callahan ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
JOHN S. LEWIS
MEMORANDUM OPINION *
v. Record No. 1915-96-4 PER CURIAM
FEBRUARY 18, 1997
KATHLEEN A. CALLAHAN
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard B. Potter, Judge
(Robert B. Machen, on briefs), for appellant.
(Margaret B. Craig; Surovell, Jackson, Colten &
Dugan, on brief), for appellee.
John S. Lewis appeals the decision of the circuit court
denying his motions to change custody and reduce or eliminate
child support. The trial court ruled that Lewis had failed to
demonstrate a basis to transfer sole custody of the parties'
child, Joshua, from Kathleen A. Callahan. Lewis presents fifteen
questions on appeal, and argues that the court failed to consider
the factors set out in Code § 20-124.3 in determining the child'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.
Rule 5A:27.
Change of Custody
"In matters concerning custody and visitation, the welfare
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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). In
considering a petition to change child custody, a trial court
applies a two-part test to determine "(1) whether there has been
a [material] change of circumstances since the most recent
custody award; and (2) whether a change in custody 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 is required to consider the factors set out
in Code § 20-124.3 when making custody and visitation decisions
in the child's best interests. Lewis' issues one through eleven
and fifteen challenge the trial court's decision that Callahan
retain sole custody. As the party seeking reversal of the trial
court's decision, Lewis bears the burden to demonstrate error by
record proof. Johnson v. Commonwealth, 12 Va. App. 391, 396, 404
S.E.2d 384, 387 (1991).
Issues 1 and 2. Lewis contends the court abused its
discretion in allowing Callahan to retain sole custody because it
was not in Joshua's best interest to stay in day care before and
after school. Lewis alleged that, because he worked at home, he
could care for Joshua.
The trial court noted that the evidence indicated that
Joshua's "experience in day care has been a good one and a
positive one. So, I don't think there is anything detrimental in
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day care in this case." Furthermore, noting that Lewis' efforts
to restore his income to previous levels would take him away from
home, the court determined that the issue of day care was not
sufficient ground to change custody. We find no abuse of
discretion in the court's determination.
Issue 3. Lewis argues that day care prevented Joshua from
interacting with his teenage half-siblings each day. As noted
above, the trial court found the issue of day care was an
insufficient basis for modifying custody.
Issues 4, 6, 8, 10 and 11. Lewis contends that the trial
court abused its discretion by failing to consider evidence of
the parties' respective willingness to cooperate with each other.
See Code § 20-124.3(6). In support of his contention, Lewis
argues that he demonstrated his ability to cooperate through his
good relationship with his first ex-wife and her family. Lewis
called his first ex-wife and former mother-in-law as witnesses.
They testified that they had good relationships with Lewis and
endorsed Lewis' abilities as a father.
Lewis claimed that Callahan refused to cooperate with him,
made false allegations of abuse by the half-siblings, and would
not allow additional visitation and contacts unless ordered to do
so by the court. In its ruling, the court expressly addressed
the parties' ability to cooperate with each other. Having seen
the witnesses and heard their testimony, the court concluded that
"there has been some miscommunications in the past," that
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"[t]here has been some animosity and some mistakes in
communication . . . by both parents in this case," and that "both
of them have overreacted at certain times." Thus, contrary to
Lewis' contention, the trial court concluded that both parents
had been less than fully cooperative.
"The court is the judge of the credibility of the witnesses,
and its findings are of great weight on appeal." Klein v. Klein,
11 Va. App. 155, 161, 396 S.E.2d 866, 869 (1990). The court
considered the statutory factor and made its ruling based upon
the evidence presented and its assessment of the witnesses'
credibility. Lewis has not demonstrated that the trial court
abused its discretion in its weighing of this factor.
Issue 5. Lewis contends, without reference to the record,
that Callahan refused to allow him to have telephone contact with
Joshua. "We will not search the record for errors in order to
interpret the appellant's contention and correct deficiencies in
a brief." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d
237, 238 (1992). Lewis has failed to demonstrate reversible
error relating to this issue.
Issue 7. Lewis testified about an incident in which
Callahan threatened him with court action if he visited Joshua's
day care without her knowledge. He contends that the incident
demonstrates her inability to cooperate in matters affecting the
child. As noted above, the trial court considered the parties'
respective cooperation, and we find no abuse of discretion in the
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trial court's determination.
Issue 9. Lewis contends, without citation to authority or
the record, that Callahan was unable to instill family values in
Joshua. The court found that Callahan had been a good and
responsible mother. We do not address this contention further.
Buchanan, 14 Va. App. at 56, 415 S.E.2d at 238.
Issue 15. Finally, Lewis contends that the trial court
abused its discretion by failing to consider the adverse health
consequences to Joshua of being in the sole custody of Callahan.
The trial court found Joshua to be in generally good physical
health.
In terms of his physical health, he has had
respiratory infections. There is no expert
evidence presented as to the cause of those
infections, other than to say they appear to
be normal infections, seasonal infections
during the winter months, including no expert
testimony as to the impact of smoking by
[Callahan] on Joshua.
Obviously, smoking would have impact on
somebody with respiratory problems. But
other than [Lewis'] opinion, I do not have
any evidence as to any impact of that
smoking. And, in any event, she has
testified that she gave up smoking in
February of 1996, so it is a moot issue as
far as I am concerned today.
Therefore, there is insufficient evidence to support Lewis'
contention on appeal.
Child Support
"Once a child support award has been entered, only a showing
of a material change in circumstances will justify modification
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of the support award. The moving party has the burden of proving
a material change by a preponderance of the evidence." Crabtree
v. Crabtree, 17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993).
In Issue 12, Lewis contends the trial court failed to
consider the expenses paid by him for his two other children when
determining child support for Joshua. The record demonstrates
that the court considered those expenses and reduced Lewis'
support payment. The court specifically noted that "while
[Lewis] seeks a reduction in child support for Joshua, it can be
noted that he seeks no support relief for [the half-siblings]."
We find no abuse of discretion on the part of the trial court.
In Issue 13, Lewis contends that the court failed to
consider his ability to provide day care when making the support
award. See Code § 20-108.2(F). The court considered, but
rejected, Lewis' ability to provide day care, noting that as
Lewis returned to his full earning capacity, he would likely be
available less freely. Lewis has not demonstrated reversible
error on the part of the trial court.
Ex Parte Motion
Lewis contends, without citation to the record or to
authority, that the trial court erred by reviewing an "ex parte
motion to dismiss." The certificate of service in the record
demonstrates that Lewis was served with the motion by both
facsimile and hand delivery. Moreover, there is no indication in
the record that Lewis raised any objection to this motion or its
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subsequent denial by the court. Therefore, we do not consider
this contention further.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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