John Brooke, Jr. v. Terry Young Willis ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Bray and Annunziata
JOHN BROOKE, JR.
v. Record No. 1874-94-3 MEMORANDUM OPINION *
PER CURIAM
TERRY YOUNG WILLIS JULY 18, 1995
FROM THE CIRCUIT COURT OF
THE CITY OF SALEM
G. O. Clemens, Judge
(John Brooke, Jr., pro se, on brief).
No brief for appellee.
John Brooke (father) appeals the decision of the circuit
court denying his request for sole custody of his daughter. Upon
reviewing the record and father's opening brief, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. Rule 5A:27. 1
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
In father's Statement of the Questions Presented and in his
Opening Brief, father seeks the following relief in addition to
his request for sole custody of his absent daughter:
(1) that a felony warrant be issued for mother;
(2) that this Court order an entry into the
"N.C.I.C.";
(3) that the Federal Bureau of Investigation be asked
to assist father finding mother and the parties' child;
(4) that father and the parties' child each be awarded
$100,000,000 in compensatory damages from the
Commonwealth of Virginia, for physical and economic
harm caused by mother and the Virginia courts and
government; and
As the party seeking a change in custody, father had "'the
burden of proving, by a preponderance of the evidence, a material
change in circumstances justifying a modification of the
decree.'" Ohlen v. Shively, 16 Va. App. 419, 424, 430 S.E.559,
561 (1993) (citation omitted). "However, even if there has been
a change in circumstances, 'there can be no change in custody
unless such change will be in the best interests of the
children.'" Visikides v. Derr, 3 Va. App. 69, 71, 348 S.E.2d 40,
41 (1986) (citation omitted).
In matters of custody . . . the court's
paramount concern is always the best
interests of the child. . . . 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. A trial court's
determination of matters within its
discretion is reversible on appeal only for
an abuse of that discretion, and a trial
court's decision will not be set aside unless
plainly wrong or without evidence to support
it.
Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795
(1990).
The record indicates that the circuit court has an
outstanding capias for the arrest of Terry Young Willis (mother),
(5) that this Court enter an order stating father
"[h]as not violated any family law court order of any
state and [h]as not committed any crime in regards to
any family court order of any state."
We either lack jurisdiction to entertain these issues, see Code
§ 17-116.05, or, where we have jurisdiction, we cannot say that
the trial court erred in denying the relief sought by father.
2
who has custody of the parties' ten-year-old child. The trial
court, however, denied father's request for an order of sole
custody stating, in part:
I'm not so sure that I'm not . . . that I or
another judge, whoever it might be, listening
to the whole scenario of things would not
feel like that [mother's] actions maybe do
not make her a fit mother or a fit parent.
On the other hand, even if that were the
situation, I'm not sure that you would be
given sole custody. This child has not lived
with you ever at all. This child knows you
as an absentee father who is trying really
hard to see her, but the . . . the . . . you
know, the reports I have are that the time
that you did have visitations, they may have
gone well from your stand point, but it was
not an indication that she would be
comfortable living with you on a sole basis.
So what I'm saying to you is that I
don't . . . I don't think it's in the best
interest of the child to give you joint . . .
give you sole custody. I do not think that
this child would be best served by being in
your sole custody.
The order from which father appeals notes that father failed
to present sufficient evidence warranting entry of an order
granting father sole custody. The record demonstrates that the
trial court made its decision based upon the child's best
interests. Therefore, as we cannot say the trial court's
decision to deny father's request for sole custody is clearly
wrong or an abuse of discretion, we affirm the trial court's
decision.
Affirmed.
3