Laura R. D. DeCapri v. Christopher D. DeCapri ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued at Richmond, Virginia
LAURA RENEE DELIBERATO DECAPRI
v. Record No. 0446-95-2 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
CHRISTOPHER DAMIEN DECAPRI JANUARY 23, 1996
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Thomas O. Bondurant, Jr. (Bondurant & Benson,
on brief), for appellant.
William C. Wood (Michael S. Ewing; Rawlings &
Wood, on brief), for appellee.
Laura DeCapri appeals from the trial court's order denying
her petition for sole custody of Brittany DeCapri. She contends
that the trial court erred in finding that Brittany's best
interests would not be served by granting the petition for sole
custody and allowing her to relocate to Cleveland, Ohio with
Brittany. We hold that the trial court did not err and affirm
its order.
Laura DeCapri and her former husband, Christopher DeCapri,
were divorced pursuant to a December 31, 1991 final decree of
divorce. The decree incorporated a settlement agreement that
gave Laura and Christopher DeCapri joint custody of their
daughter Brittany. The agreement provided that Laura DeCapri
would be the custodial parent and exercise primary control and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
supervision of Brittany.
On March 15, 1993, Laura DeCapri filed a petition requesting
sole custody of Brittany and permission to move Brittany to
Cleveland. After a hearing, the trial court entered an order
denying the petition on the ground that it would not be in
Brittany's best interests to relocate to Cleveland with her
mother.
Laura DeCapri, alleging a "substantial" change in
circumstances since the hearing on her March 1993 petition, filed
a second petition on October 27, 1994, again requesting sole
custody and permission to relocate Brittany to Cleveland. This
appeal arises from the trial court's order denying the October
27, 1994 petition.
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). Although the trial court did
not expressly find a material change in circumstances, the record
shows that Laura DeCapri had been admitted to a community college
in Cleveland subsequent to the court having denied her first
petition for a change in custody. Also, Christopher DeCapri has
remarried and fathered a child with his current spouse since the
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last custody determination. Therefore, credible evidence
supports a finding of a material change in circumstances. Id.
(stating that "[w]hether a change of circumstances exists is a
factual finding that will not be disturbed on appeal if the
finding is supported by credible evidence").
Laura DeCapri relies on Gray v. Gray, 228 Va. 696, 698-99,
324 S.E.2d 677, 678 (1985), Simmons v. Simmons, 1 Va. App. 358,
364, 339 S.E.2d 198, 201 (1986), and Scinaldi v. Scinaldi, 2 Va.
App. 571, 576-77, 347 S.E.2d 149, 152 (1986), in support of her
contention that the trial court erred by finding that it would
not be in Brittany's best interests to relocate with Laura
DeCapri to Cleveland. Reliance on these cases is misplaced.
Although in each case the court allowed the custodial parent to
relocate to a different state, in all three cases, the burden was
on the non-custodial parent to prove that it was in the
children's best interests to prevent the relocation by granting a
change in custody. Here, the parents have joint custody, and
Laura DeCapri is seeking a change in custody in order to move
Brittany to another state. We, therefore, find the facts of this
case similar to the facts in Carpenter v. Carpenter, 220 Va. 299,
257 S.E.2d 845 (1979), in which the Supreme Court affirmed the
trial court's decree denying the custodial parent consent to move
the children from the Commonwealth to New York.
"On appeal, we review the evidence in the light most
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favorable to the prevailing party below. ``The trial court's
decision, when based upon an ore tenus hearing, is entitled to
great weight and will not be disturbed unless plainly wrong or
without evidence to support it.'" Hughes v. Gentry, 18 Va. App.
318, 321-22, 443 S.E.2d 448, 451 (1994) (citations omitted).
Here, as the trial court noted, "[t]he parties went to great
lengths in establishing a joint custody arrangement," and
although Laura DeCapri is responsible for the primary custody and
care of Brittany, Christopher DeCapri has a very close
relationship with his daughter. Both parents have maintained "an
active role in the care, education and development of
[Brittany]." Carpenter, 220 Va. at 302, 257 S.E.2d at 847. For
instance, in addition to exercising his normal visitation rights
and talking with Brittany on the telephone every day, Christopher
DeCapri actively supervises Brittany's progress in school and
participates in her school activities.
Furthermore, Brittany appears to have a good relationship
with her father's new wife and child, and has friends in her
father's neighborhood in Richmond. Christopher DeCapri testified
that he wants "to go to the school plays, [and] help with school
stuff," and that it would be physically impossible "to do
everything [he is] doing now" if Brittany was in Cleveland. The
evidence proves, therefore, unlike the evidence in Scinaldi, that
the benefits of the relationship between Christopher DeCapri and
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Brittany cannot be substantially maintained if Brittany is moved
to Cleveland. Scinaldi, 2 Va. App. at 575, 347 S.E.2d at 151.
Laura DeCapri would like to return to college because she
"need[s] to be financially able to take care of [herself] and
Brittany in the event that something were to happen to Mr.
DeCapri, . . . or that he wasn't able to [maintain] two
families." Although Laura DeCapri concedes that she could pursue
her education in Richmond, she contends that relocating to
Cleveland would best serve Brittany's interests because her
family lives in Cleveland and she would be able to take better
care of Brittany if she had the financial and moral support of
her family. Despite the fact that eventually Laura DeCapri might
better be able to provide financially for Brittany if she could
pursue her education, the evidence does not show that her ability
to provide support is impaired by being in Richmond. Moreover,
Christopher DeCapri has complied with his support obligations,
and the record does not indicate that the financial support
provisions of the separation agreement are inadequate.
Furthermore, Christopher DeCapri testified that he is willing to
provide day care for Brittany in order for Laura DeCapri to
pursue her education.
By all indications, Brittany is a well-adjusted child who is
happy and doing well in school. See Carpenter, 220 Va. at 302,
257 S.E.2d at 847. The trial court's finding that Brittany's
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best interests would be best served by remaining in the Richmond
area is not "plainly wrong or without evidence to support it."
Accordingly, we hold that the trial court did not abuse its
discretion by refusing to grant Mrs. DeCapri sole custody and
allow her to relocate to Cleveland with Brittany, and we affirm
the order.
Affirmed.
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