Sarah L. Humphries v. Charles M. Davis, II ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
SARAH L. HUMPHRIES
MEMORANDUM OPINION *
v. Record No. 0775-98-2 PER CURIAM
DECEMBER 8, 1998
CHARLES M. DAVIS, II
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
(T. Michael Blanks, Jr.; Barnes & Batzli, on
brief), for appellant.
(J. Randolph Smith; Gail H. Miller; Smith &
Miller, on brief), for appellee.
Sarah L. Humphries (mother) appeals the decision of the
circuit court finding that she failed to prove that there was a
material change in circumstances since the last custody
determination warranting a modification of custody. Charles M.
Davis, II (father) was awarded physical custody of the parties'
child by consent order entered September 8, 1995. On appeal,
mother contends that the trial court erred in (1) failing to find
a material change in circumstances; (2) applying the factors set
out in Code § 20-124.3 to the evidence; (3) applying the
statutory factors and the evidence to its finding of the best
interests of the child; and (4) violating the mandate of Code
§ 20-124.2(B) because the evidence showed that awarding physical
custody to mother would assure both parents frequent and
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
continuing contact with 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.
Rule 5A:18 bars consideration on appeal of an argument which
was not presented to the trial court. See Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991).
The order from which this appeal is taken was endorsed by
mother's counsel with the exception "Seen and objected to on the
basis there has been a material change in circumstances which
warrants a modification of custody." Mother's counsel raised the
essence of her issue four in summary argument before the trial
court. We cannot say from our review of the record on appeal
that mother raised either issue two or three with specificity
before the trial court. See Rule 5A:18. However, our resolution
of the threshold question set out as mother's first issue makes a
consideration of issues two and three moot.
As the party seeking to change custody, mother bore the
burden to prove "(1) whether there has been a change of
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)). In order to allow a change of custody, the
change in circumstances must be material. See Kaplan v. Kaplan,
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21 Va. App. 542, 548, 466 S.E.2d 111, 114 (1996). A decision on
whether 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, 696 (1994). 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).
In support of her motion to modify physical custody, mother
alleged three specific changes that warranted a review of
custody: (1) that her changed work schedule now allowed her to
work at home and to be available to care for the parties' child;
(2) that mother's marriage was even more established than at the
time of the prior custody hearing; and (3) that father's changed
residence was not as favorable to the child. The evidence was
submitted by deposition testimony, with a brief hearing before
the trial court. The trial court found that mother failed to
prove a material change in circumstances warranting a change in
custody. Credible evidence supports that finding.
Of the changes in circumstances raised by mother to warrant
a modification of custody, the one on which the most emphasis was
placed was mother's changed work schedule. At the time of the
prior hearing, mother was working out of the home on three
twelve-hour shifts. Mother's current work schedule is 10:00 a.m.
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until 2:30 p.m., and 9:00 p.m. until midnight, five days a week.
Mother noted that her current schedule eliminated the need for
day care for the parties' son. Mother admitted she was married
at the time of the previous hearing, but alleged that the length
of her marriage was a material change. Finally, mother alleged
that father's new home was in a neighborhood with few children,
while her neighborhood had many children.
The overwhelming evidence established that the parties' son
is a thriving, happy youngster who is loved by his parents and
step-parents and who reciprocates that love. There was evidence
that the child has a strong bond with his father and was eagerly
anticipating being a "big brother" to his new step-sibling.
While mother's changed work schedule was a change in
circumstances, we find no error in the trial court's conclusion
that mother failed to demonstrate that the change was material.
There was no evidence warranting a change in the current stable
physical custody arrangement under which the child was doing so
well. See Hughes, 18 Va. App. at 322, 443 S.E.2d at 451.
Mother contends, under her second and third issues, that the
trial court erred by failing to address the second prong of the
Keel test. Assuming arguendo that those issues were preserved
for appeal, we find them to be without merit. If a court does
not find evidence of a material change of circumstances,
consideration of the "best interests" prong of the Keel test is
barred by principles of res judicata. See Hiner v. Hadeed, 15
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Va. App. 575, 580, 425 S.E.2d 811, 814 (1993). In the absence of
evidence that there was a material change in circumstances, we
find no error in the court's failure to expressly apply the
evidence to a consideration of the child's best interests or the
statutory factors set out in Code § 20-124.3.
Noting that it "recognize[d] the importance of time spent
with both natural parents," the trial court increased mother's
scheduled visitation with the child. We find the trial court did
not violate the mandate of Code § 20-124.2(B) to "assure minor
children of frequent and continuing contact with both parents,
when appropriate . . . ."
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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