COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Bumgardner Argued at Alexandria, Virginia
AMY JO CLARK ETTER MEMORANDUM OPINION * BY v. Record No. 0506-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK MAY 5, 1998 CRAIG ALAN ETTER
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Gerald B. Lee, Judge David H. Fletcher (Martin A. Gannon; Gannon, Cottrell & Ward, on briefs), for appellant.
David D. Masterman (Cheryl K. Graham; Condo & Masterman, on brief), for appellee.
On appeal from the trial court's decision awarding Craig
Alan Etter (father) sole custody of the parties' children, Amy Jo
Clark Etter (mother) contends the court erred in finding: (1)
that a material change in circumstances had occurred subsequent
to the parties' stipulated custody agreement; and (2) that the
change in circumstances justified a modification awarding sole
custody of the children to father. For the following reasons, we
affirm the judgment of the trial court.
I.
On May 16, 1995, mother and father entered a comprehensive
"Stipulation of Agreement" concerning the custody of their three
children. This agreement was incorporated into a Final Decree of
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Divorce on June 15, 1995. The agreement established joint legal
custody: "meaning on all matters of importance, including but not limited to the residence of the children, their education, medical treatments, and all other developmental issues, . . . [the parties] shall make joint decisions in the best interests of the children."
On August 12, 1996, father filed for modification based on
numerous allegations that mother had violated the terms of the
agreement by failing to consult him on required issues, that the
parties could not communicate, and that mother had interfered
with his visitation. He requested sole custody based on changed
circumstances. Mother filed a similar petition on November 12,
1996, requesting sole custody based on changed circumstances,
including the parties' inability to co-parent. On January 13,
1997, the trial court held a two day ore tenus hearing.
"'[W]e view the evidence and all reasonable inferences in
the light most favorable to the prevailing party below.'" Johnson v. Johnson, 26 Va. App. 135, 144, 493 S.E.2d 668, 672
(1997) (citation omitted). Viewed in this light, the evidence
adduced at the hearing established that the parents'
communication had deteriorated significantly from the time the
Stipulation of Agreement was entered. Rather than consulting
with each other, they communicated via fax, phone, letter, and
occasionally through the children. Further, mother made
decisions concerning the children without consulting father.
2 Most notably, she decided unilaterally to place Joseph, a child
who required special services, in a different school and
subsequently refused to discuss this issue with father, either
directly or through mediation. Additionally, the parties were
unable to conduct visitation transitions smoothly. When father
was scheduled to pick up the children for his summer visitation
in 1995, he obtained police intervention because mother refused
to give him the children or to talk with him over the phone or in
person. The parties also engaged in argument over the duration
of father's time with the children on Father's Day. At the conclusion of the hearing, the trial court found that
"joint custody has been a failure," because the parties "have not
cooperated, not communicated." The court further found that the
friction between the parents has "impacted the children." While
the trial court acknowledged that father was not "blame free,"
the court noted mother's repeated refusals to participate in
mediation or talk with father and her insistence on communicating
by message, fax or mail. The trial court reviewed each of the
statutory factors in Code § 20-124.3 and concluded: under factor number six, the propensity of each parent to actively support the children's relationship with the other parent and the ability to cooperate -- there is a key distinction between the two [parties]. I find that Ms. Clark is well intentioned [but] her judgment over the last eighteen months has severely impacted these children's relationship with the father in a way that is unacceptable. I find that . . . it is in the best interest of the children that the sole custody be awarded to the father.
3 II.
Mother contends the trial court erroneously found a change
in circumstances justifying a modification of the stipulated
custody agreement. We disagree.
The standard to be applied to modification of child custody
is well settled: "A trial court, in determining whether a change of custody should be made, must apply a two-pronged test: (1) whether there has been a [material] change in circumstances since the most recent custody award; and (2) whether a change in custody would be in the best interests of the child."
Wilson v. Wilson, 18 Va. App. 193, 195, 442 S.E.2d 694, 696
(1994) (quoting Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d
40, 41 (1986)). "'Whether a change of circumstances exists is a
factual finding that will not be disturbed on appeal if the
finding is supported by credible evidence.'" Ohlen v. Shively,
16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993) (citation
omitted). "[T]rial courts are vested with broad discretion in
making the decisions necessary to guard and to foster a child's
best interests." Farley v. Farley, 9 Va. App. 326, 328, 387
S.E.2d 794, 795 (1990) (citing Eichelberger v. Eichelberger, 2
Va. App. 409, 412, 345 S.E.2d 10, 12 (1986)). "Where a trial
court makes a determination which is adequately supported by the
record, the determination must be affirmed." Farley, 9 Va. App.
4 at 328, 387 S.E.2d at 796.
In deciding what custody arrangement is in the child's best
interests, the court must consider the following factors in Code
§ 20-124.3: 1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs; 2. The age and physical and mental condition of each parent; 3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child; 4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members; 5. The role which each parent has played and will play in the future, in the upbringing and care of the child; 6. The propensity of each parent to actively support the child's contact and relationship with the other parent, the relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in matters affecting the child; 7.
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Bumgardner Argued at Alexandria, Virginia
AMY JO CLARK ETTER MEMORANDUM OPINION * BY v. Record No. 0506-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK MAY 5, 1998 CRAIG ALAN ETTER
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Gerald B. Lee, Judge David H. Fletcher (Martin A. Gannon; Gannon, Cottrell & Ward, on briefs), for appellant.
David D. Masterman (Cheryl K. Graham; Condo & Masterman, on brief), for appellee.
On appeal from the trial court's decision awarding Craig
Alan Etter (father) sole custody of the parties' children, Amy Jo
Clark Etter (mother) contends the court erred in finding: (1)
that a material change in circumstances had occurred subsequent
to the parties' stipulated custody agreement; and (2) that the
change in circumstances justified a modification awarding sole
custody of the children to father. For the following reasons, we
affirm the judgment of the trial court.
I.
On May 16, 1995, mother and father entered a comprehensive
"Stipulation of Agreement" concerning the custody of their three
children. This agreement was incorporated into a Final Decree of
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Divorce on June 15, 1995. The agreement established joint legal
custody: "meaning on all matters of importance, including but not limited to the residence of the children, their education, medical treatments, and all other developmental issues, . . . [the parties] shall make joint decisions in the best interests of the children."
On August 12, 1996, father filed for modification based on
numerous allegations that mother had violated the terms of the
agreement by failing to consult him on required issues, that the
parties could not communicate, and that mother had interfered
with his visitation. He requested sole custody based on changed
circumstances. Mother filed a similar petition on November 12,
1996, requesting sole custody based on changed circumstances,
including the parties' inability to co-parent. On January 13,
1997, the trial court held a two day ore tenus hearing.
"'[W]e view the evidence and all reasonable inferences in
the light most favorable to the prevailing party below.'" Johnson v. Johnson, 26 Va. App. 135, 144, 493 S.E.2d 668, 672
(1997) (citation omitted). Viewed in this light, the evidence
adduced at the hearing established that the parents'
communication had deteriorated significantly from the time the
Stipulation of Agreement was entered. Rather than consulting
with each other, they communicated via fax, phone, letter, and
occasionally through the children. Further, mother made
decisions concerning the children without consulting father.
2 Most notably, she decided unilaterally to place Joseph, a child
who required special services, in a different school and
subsequently refused to discuss this issue with father, either
directly or through mediation. Additionally, the parties were
unable to conduct visitation transitions smoothly. When father
was scheduled to pick up the children for his summer visitation
in 1995, he obtained police intervention because mother refused
to give him the children or to talk with him over the phone or in
person. The parties also engaged in argument over the duration
of father's time with the children on Father's Day. At the conclusion of the hearing, the trial court found that
"joint custody has been a failure," because the parties "have not
cooperated, not communicated." The court further found that the
friction between the parents has "impacted the children." While
the trial court acknowledged that father was not "blame free,"
the court noted mother's repeated refusals to participate in
mediation or talk with father and her insistence on communicating
by message, fax or mail. The trial court reviewed each of the
statutory factors in Code § 20-124.3 and concluded: under factor number six, the propensity of each parent to actively support the children's relationship with the other parent and the ability to cooperate -- there is a key distinction between the two [parties]. I find that Ms. Clark is well intentioned [but] her judgment over the last eighteen months has severely impacted these children's relationship with the father in a way that is unacceptable. I find that . . . it is in the best interest of the children that the sole custody be awarded to the father.
3 II.
Mother contends the trial court erroneously found a change
in circumstances justifying a modification of the stipulated
custody agreement. We disagree.
The standard to be applied to modification of child custody
is well settled: "A trial court, in determining whether a change of custody should be made, must apply a two-pronged test: (1) whether there has been a [material] change in circumstances since the most recent custody award; and (2) whether a change in custody would be in the best interests of the child."
Wilson v. Wilson, 18 Va. App. 193, 195, 442 S.E.2d 694, 696
(1994) (quoting Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d
40, 41 (1986)). "'Whether a change of circumstances exists is a
factual finding that will not be disturbed on appeal if the
finding is supported by credible evidence.'" Ohlen v. Shively,
16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993) (citation
omitted). "[T]rial courts are vested with broad discretion in
making the decisions necessary to guard and to foster a child's
best interests." Farley v. Farley, 9 Va. App. 326, 328, 387
S.E.2d 794, 795 (1990) (citing Eichelberger v. Eichelberger, 2
Va. App. 409, 412, 345 S.E.2d 10, 12 (1986)). "Where a trial
court makes a determination which is adequately supported by the
record, the determination must be affirmed." Farley, 9 Va. App.
4 at 328, 387 S.E.2d at 796.
In deciding what custody arrangement is in the child's best
interests, the court must consider the following factors in Code
§ 20-124.3: 1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs; 2. The age and physical and mental condition of each parent; 3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child; 4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members; 5. The role which each parent has played and will play in the future, in the upbringing and care of the child; 6. The propensity of each parent to actively support the child's contact and relationship with the other parent, the relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in matters affecting the child; 7. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference; 8. Any history of family abuse as that term is defined in § 16.1-228; and 9. Such other factors as the court deems necessary and proper to the determination.
(Emphasis added).
In the instant case, the record provides ample credible
evidence that the custody circumstances had changed from the date
5 of the stipulation. The parties' inability to cooperate
sufficiently to co-parent clearly was not contemplated by the
agreement. The lack of effective communication and the inability
to adequately consult and make joint decisions regarding the
children undermined the earlier joint custody agreement. The
trial court's finding that the joint custody plan was "a failure"
was supported by credible evidence.
Additionally, mother conceded in her trial court pleadings
that the parties' inability to communicate or maintain a civil
relationship constituted a change in circumstances justifying a
change in custody. Therefore, we hold that the trial court did
not abuse its discretion in finding a change in circumstances
requiring modification of the custody agreement. Mother also argues that the trial court abused its
discretion because the award of sole custody to father was
unsupported by the evidence and contrary to the recommendation of
the expert custody evaluator. We disagree. The trial court need
not adopt the recommendation of the expert. See Street v.
Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en
banc) ("the fact finder is not required to accept the testimony
of an expert witness merely because he or she has qualified as an
expert"). The record demonstrates that the trial court
considered the behavior of both parents as well as the expert's
recommendation. Although not required to do so, the court
specified its reasons for rejecting the expert's recommendation
6 in favor of a more definitive solution. Furthermore, the record
establishes that mother's behavior regarding visitation and her
refusal to discuss schooling and other issues with father
supports the trial court's finding that she "does not exhibit [a]
spirit of cooperation." The record before us adequately supports
the trial court's determination that the children's best interest
was served by an award of sole custody to father.
Mother also contends the trial court erred in denying her
motion to reconsider in light of evidence of the oldest child's
desire to remain with mother and other proffered testimony. "In
the absence of a material change in circumstance, reconsideration
. . . would be barred by res judicata." Hiner v. Hadeed, 15 Va.
App. 575, 580, 425 S.E.2d 811, 814 (1993). The trial court
addressed the question of the children's wishes and declined to
find that any of the children were of the age, intelligence, and
experience to express a cognizable preference. As to the other
proffered testimony, the court found that mother had an
opportunity to present her case at the hearing. We hold that the
proffered testimony failed to demonstrate a material change in
circumstances subsequent to the trial court's custody order and
that the trial court did not abuse its discretion in denying
mother's motion to reconsider.
Father has requested an award of attorney's fees for this
appeal. We find that wife had reasonable grounds for appeal.
Therefore, husband's request for fees is denied. See Gayler v.
7 Gayler, 20 Va. App. 83, 87, 455 S.E.2d 278, 280 (1995). For the
foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.