Susan M. Stephens v. Dale Edward Warren

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
SUSAN M. STEPHENS
MEMORANDUM OPINION * BY
v. Record No. 2218-95-4 JUDGE JAMES W. BENTON, JR.
NOVEMBER 19, 1996
DALE EDWARD WARREN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Rosemarie Annunziata, Judge
Carolyn T. Hogans (Dennis M. Hottell;
Dennis M. Hottell & Associates, on briefs),
for appellant.
J. Thomas Fromme, II (Sherman & Fromme, on
brief), for appellee.
In this custody dispute, the trial judge denied Susan M.
Stephens' motions to modify custody and child support and to
require psychological evaluations and a home study. Stephens
contends that the trial judge erred by (1) denying her request
for an independent psychological examination of the child, (2)
refusing to modify custody, (3) refusing to reduce her child
support obligation, and (4) ordering her to pay a portion of the
father's attorney's fees. Dale Edward Warren, the father, filed
a motion to dismiss the appeal on the ground that the mother
failed to file a complete transcript of the proceedings below.
Because the excerpts of the transcript that were filed contain
extensive findings by the trial judge, we consider those excerpts
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
and affirm the judgment.
I.
The record on appeal proves that at the time of the
parties' divorce in 1989, the final decree awarded custody of the
child to the father. In 1994, the mother filed motions seeking
an immediate modification of custody, a change in support, a
change in visitation, a psychological evaluation of the child,
and attorney's fees. The father denied the mother's allegations,
opposed the motions, and requested an award of his fees.
Following a hearing, the trial judge denied the mother's motion
for a psychological evaluation. The mother then withdrew her
motion for a home study and entered into a consent order with the
father giving the mother extended visitation during December
1994.
At a later evidentiary hearing, the evidence proved that
circumstances in the mother's life had changed since the 1989
divorce. She had remarried, given birth to another child,
assumed custody of her husband's niece, left her former
employment, and begun operating a day care center from her home.
The mother's income had decreased from approximately $3,235 per
month to approximately $1,080 per month.
The evidence also proved that the child, whose custody was
at issue, was emotionally stable and had adapted very well to his
parents' divorce. Based on her finding that the child had a
uniquely healthy mental state, the trial judge concluded that the
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father had strong parenting abilities. Specifically, the trial
judge found that the father actively supported the child's
relationship with his mother and effectively educated the child.
The father testified that he had a total debt of
approximately $15,000, and that a substantial part of the debt
was incurred during the parties' marriage. Based on the
evidence, the trial judge entered a final order denying a change
in custody, denying a modification of child support, and awarding
$5,000 in attorney's fees to the father. The mother appealed.
II.
"Whether to grant the motion [for a psychological evaluation
of the child] was within the discretion of the trial judge."
Carrico v. Blevins, 12 Va. App. 47, 51, 402 S.E.2d 235, 238
(1991). The mother argued that a psychological evaluation was
"necessary to fully apprise the Court of the current custodial
situation, and . . . would assist the Court in reaching a
determination on [the mother's] pending custody motion, and thus
[it would be] in [the child's] best interest." The trial judge
found that a psychological evaluation was not needed because
there were no "true, psychological issues" in the case. The
trial judge found that the mother had not presented "enough
[evidence] to suggest to me that the child is significantly
destabilized or even nearing destabilization in his present
circumstance."
Because the record contains no evidence that a psychological
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evaluation would provide particular assistance to the trial
judge, we hold that the trial judge did not abuse her discretion
in denying the motion.
III.
To justify a change in custody, a parent must prove two
elements: (1) that a material change in circumstances has
occurred, and (2) that a change in custody would be in the
child's best interests. Keel v. Keel, 225 Va. 606, 611, 303
S.E.2d 917, 921 (1983).
[D]espite changes in circumstances, there can
be no change in custody unless such change
will be in the best interests of the
children. The second prong, then, is clearly
the most important part of the two-part test.
It underscores the importance we place upon
securing the best interests of children whose
interests, in the final analysis, must be
protected by the courts.
Id. at 612, 303 S.E.2d at 921. The trial judge found that the
mother proved a material change in circumstances. However, the
trial judge denied the motion on the grounds that the mother
failed to prove that a modification of custody would be in the
child's best interests.
When ruling on the best interests of the child, a trial
judge must "make a rational comparison between the circumstances
of the two parents as those circumstances affect the children."
Id. at 613, 303 S.E.2d at 922. In making the comparison, the
trial judge must determine "which parent is best qualified to
provide the highest quality of care to the child and which home
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will provide the child the greatest opportunity to fulfill his or
her potential." Turner v. Turner, 3 Va. App. 31, 36, 348 S.E.2d
21, 23 (1986). On appeal, the trial judge's "decision will not
be set aside unless plainly wrong or without evidence to support
it." Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795
(1990).
The mother argues that the trial judge inappropriately
emphasized the stability of the child in his current environment
and, in effect, required that she prove the change was "needed."
The Supreme Court has ruled that "although a settled environment
may have its benefits, it is simply another factor to be
considered in determining the best interests of the children
[and] . . . cannot be used to preclude examination of other
pertinent factors." Keel, 225 Va. at 611, 303 S.E.2d at 920.
The record reveals that although the trial judge did
emphasize that the child "is unusually stable and well-adjusted
and comfortable," the judge did not allow that factor to preclude
an analysis of other relevant considerations. For example, the
judge focused at length on the father's unique parenting
abilities. The evidence proved that the father actively promoted
the child's relationship with his mother and her new husband.
The trial judge also found that the father excelled at educating
the child in subtle ways and instilled valuable personal and life
skills. The trial judge found that the father was highly
motivated to be a good parent.
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The trial judge appropriately applied a comparative approach
and found that, despite the improvements in the mother's
lifestyle, the father was still most likely to provide the best
environment for the child. Although the judge did not discredit
the mother's parenting skills, the judge did attribute the
child's unique stability and happiness to the father's abilities.
Moreover, the trial judge found that the child was
performing well at school. The judge also expressed concern that
a change in the child's school would not be in his best interest.
Because the trial judge's findings addressed the overall best
interests of the child and were not plainly wrong, we affirm the
decision.
IV.
After the trial judge denied the motion for change in
custody, the mother sought a reduction in the amount of child
support she was paying. The mother argues that the trial judge
erred by refusing to reduce her child support obligation and by
failing to make the findings required by Code § 20-108.1. We
disagree.
When seeking a modification of child support, the moving
party must prove that a material change in circumstances occurred
and that the change justifies altering the support amount. See
Kaplan v. Kaplan, 21 Va. App. 542, 547, 466 S.E.2d 111, 113
(1996). A trial judge's decision that is based upon evidence at
an ore tenus hearing "will not be disturbed on appeal unless it
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is plainly wrong or without evidence in the record to support
it." Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383
S.E.2d 28, 30 (1989).
The evidence revealed that the mother voluntarily terminated
a job where she earned $3,235 per month and began to operate a
day care center where she earned approximately $1,080 per month.
The trial judge's refusal to modify the child support award is
supported by the evidence that the mother's change in employment
was voluntary. Thus, the income reduction was not a material
change in circumstance that justified a reduction. See Antonelli
v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991).
The only grounds upon which the trial judge could have found
a material change, therefore, were the additional expenses the
mother incurred in caring for her new child and her husband's
niece. Because the mother calculated the expenses of the
children by including expenses that had not changed due to the
children, however, the mother's evidence failed to demonstrate
exactly how much her expenses had increased due to the children.
Nevertheless, the trial judge did consider the fact that her
expenses had increased but declined to modify the support award.
The trial judge ruled that in light of the father's
financial situation, the changes in the mother's life were not
material and did not warrant a modification of the support award.
The evidence proved that the father continued to have
substantial unpaid debt, most of which was incurred during the
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marriage. Because the evidence supports that ruling, it is not
plainly wrong.
The mother also argues that the trial judge erred by failing
to make findings as to the presumptive guideline amount and the
deviation from that amount. In view of the mother's involuntary
change in employment and the trial judge's finding of no material
change in circumstances, the trial judge was not required to make
the findings otherwise required by the Code. Crabtree v.
Crabtree, 17 Va. App. 81, 88-89, 435 S.E.2d 883, 888 (1993).
V.
"The key to a proper award of counsel fees is reasonableness
under all of the circumstances revealed by the record."
Ellington v. Ellington, 8 Va. App. 48, 58, 378 S.E.2d 626, 631
(1989). "An award of attorney fees is discretionary with the
[trial judge] after considering the circumstances and equities of
the entire case and is reviewable only for an abuse of
discretion." Gamer v. Gamer, 16 Va. App. 335, 346, 429 S.E.2d
618, 626 (1993).
The trial judge ruled that although there was a viable
visitation dispute, "[t]hat doesn't mean that you bring a custody
case every time you have a visitation issue." The trial judge
found that the mother's decision to seek a change of custody was
not reasonable. In addition, the evidence proved that the
husband was carrying a substantial debt remaining from the
marriage. Based on these circumstances, the judge ruled that she
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was "going to consider the fact that neither of these parties has
a lot of money, but I am going to award $5,000." In light of the
financial circumstances of the parties and the trial judge's
finding that the motions were not warranted, we hold that the
trial judge's decision to award the father a partial sum of
attorney's fees does not constitute an abuse of discretion.
For these reasons, we affirm the judgment.
Affirmed.
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