K. Robin Laing v. Stephen Dade Walker ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Elder and Fitzpatrick
Argued at Salem, Virginia
K. ROBIN LAING
MEMORANDUM OPINION * BY
v. Record No. 1693-94-3 JUDGE LARRY G. ELDER
JULY 18, 1995
STEPHEN DADE WALKER
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Kenneth I. Devore, Judge
Melissa A. Hobbie (Phillips, Webb & Wallerstein,
P.C., on briefs), for appellant.
Donald B. Irons for appellee.
K. Robin Laing (Mother) appeals the trial court's final
custody decree, which awarded sole legal custody of two of the
parties' minor children to Stephen Dade Walker (Father). On
appeal, Mother contends that the trial court erred in failing to
apply the two-step analysis articulated in Keel v. Keel, 225 Va.
606, 303 S.E.2d 917 (1983), when it modified its earlier custody
order. Assuming the trial court properly applied the Keel
analysis, Mother asserts that Father presented insufficient
evidence to prove that there was a change in circumstances
necessitating a custody modification and presented insufficient
evidence that such modification was in the children's best
interests. Because the trial court committed no error, we affirm
the custody order.
After the parties divorced on October 10, 1991, they were
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appointed joint legal custodians of their three children, Kelly,
Dana, and Eric. Mother was granted primary physical custody of
the children, while Father was given liberal visitation rights.
On April 30, 1993, the parties agreed to maintain joint legal
custody of all three children but to grant Father primary
physical custody of Kelly.
Father filed a petition for custody of Dana and Eric on May
20, 1993, alleging that there had been "a material change of
circumstances" since April 30, 1993, necessitating modification
of custody. The record reveals, and Father conceded at oral
argument, that the sole changed circumstance involved Mother's
proposed move to Egypt. On August 20, 1993, Mother notified
Father and the trial court that she had canceled plans to move to
Egypt and that any further proceedings would be unnecessary.
Nevertheless, after hearing extensive testimony on July 27, 1994,
the trial court entered a final decree awarding Father sole legal
and physical custody of Dana and Eric, subject to Mother's
visitation rights. Mother appeals the trial court's order.
This Court reviews the evidence in the light most favorable
to the prevailing party below. Peple v. Peple, 5 Va. App. 414,
422, 364 S.E.2d 232, 237 (1988). "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." Venable v. Venable, 2 Va. App. 178,
186, 342 S.E.2d 646, 651 (1986).
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I.
APPLICATION OF KEEL v. KEEL
In determining whether a change in custody is warranted, the
trial court must apply a two-part test: (1) whether there has
been a change of circumstances following the most recent custody
award, and (2) whether a change of custody would be in the best
interests of the child. Keel, 225 Va. at 611, 303 S.E.2d at 921.
Based on the record, we cannot say that the trial court failed
to apply Keel's two-step analysis.
Although the trial court never explicitly stated the
procedure it was following, the record reveals that it was aware
that the "change in circumstances" prong of the Keel test was a
contested issue. For example, at the August 26, 1993 hearing on
temporary custody, Mother's counsel addressed the issue of the
"scope of this hearing," stating that "there has been no change
in circumstance since [the April 30, 1993] order." Additionally,
Mother objected in written form to the trial court's temporary
custody order, in which she wrote that "[F]ather failed to
establish a change in circumstances since the parties' April,
1993 Agreed Order," again alerting the trial court to this issue.
We follow our holding in Peple v. Peple, 5 Va. App. 414, 364
S.E.2d 232 (1988), another child custody case in which the mother
alleged that the trial court failed to apply the "change in
circumstance" standard. This Court held that, "[t]he record
. . . does not definitely reveal the procedural standard that the
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chancellor applied. However, he specifically concerned himself
with the proper procedural standard to apply, and from his
comments we conclude that he applied the 'change in circumstance'
test." 5 Va. App. at 418, 364 S.E.2d at 235. See also Hughes v.
Gentry, 18 Va. App. 318, 443 S.E.2d 448 (1994).
II.
CHANGE IN CIRCUMSTANCES
Second, we cannot say the trial court erred in determining
that changed circumstances warranted a re-examination of the
custody issue. As this Court recognizes, "whenever the evidence
suggests . . . that the relocation of the custodial parent may
not be in the child's best interests, the relocation of the
custodial parent constitutes a material change in circumstances."
Hughes, 18 Va. App. at 322, 443 S.E.2d at 451.
We conclude that Mother's decision not to relocate to Egypt,
after having made extensive plans to do so, constituted a changed
circumstance in and of itself. The record reveals that at the
July 15, 1993 hearing on temporary custody, Mother's counsel
stated that Mother and her new husband had each recently
completed their higher educations, that they had no source of
income in the United States, and that they had found sources of
income in Egypt. Mother herself stated that she had written
stories for Dana and Eric about Egypt that were designed to
prepare the children "to start to bond with [the] idea [of moving
to Egypt]." Mother stated that Dana and Eric were "both fully
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prepared to go to Egypt," and that Dana remarked, "Well, when are
we gonna go, when are we gonna go? What are we waiting for?"
On August 20, 1993, Mother abandoned all plans to move to
Egypt, instead deciding to remain in Blacksburg for at least one
more year. We conclude that this reversal in plans was a
circumstance that the trial court could and did validly take into
account in determining whether changed circumstances still
warranted a hearing to determine custody. As the Supreme Court
explained in Keel, the "change of circumstance" prong is a
"broad" test that includes "any myriad of changes that might
exist as to [the minor children]," including negative events in
the custodial parent's home and the creation of a stable home
environment. Keel, 225 Va. at 612, 303 S.E.2d at 921. Thus, the
issue of whether Mother and her new husband could provide
continuing stability for Dana and Eric became a critical issue,
not only at the time Mother announced her plans to move to Egypt,
but also after she canceled those plans.
III.
BEST INTERESTS OF THE CHILDREN
Third, we hold that there was credible evidence to support
the trial court's determination that the children's best
interests would be served by granting legal and physical custody
to Father. In determining best interests, a trial court is
required to consider the enumerated factors prescribed in Code
§ 20-107.2. The trial court does not abuse its discretion where
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there is some foundation for its action in the evidence
presented, even though it failed to describe or quantify the
weight given to each statutory factor. See Woolley v. Woolley, 3
Va. App. 337, 345, 349 S.E.2d 422, 426 (1986)(applying this rule
to factors for determining support).
The record shows the trial court heard extensive testimony
and received reports and letters from numerous witnesses, most of
which described nurturing and stimulating environments provided
by each parent. As we have stated:
In testing the credibility and weight to
be ascribed to the evidence, we must give
trial courts . . . the wide discretion to
which a living record, as distinguished from
a printed record, logically entitles them.
The living record contains many guideposts to
the truth which are not in the printed
record; not having seen them ourselves, we
should give great weight to the conclusions
of those who have seen and heard them.
Swanson v. Commonwealth, 8 Va. App. 376, 379, 382 S.E.2d 258, 259
(1989). In light of these factors, we cannot say that the trial
court abused its discretion.
For these reasons, we affirm the custody order.
Affirmed.
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