Elton Lee Miller, Jr. v. Daphyne Lynn Miller

• Court: Court of Appeals of Virginia
• Decided: June 15, 1999
• Docket: 2502982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

ELTON LEE MILLER, JR. MEMORANDUM OPINION * v. Record No. 2502-98-2 PER CURIAM JUNE 15, 1999 DAPHYNE LYNN MILLER

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Richard J. Jamborsky, Judge Pro Tempore

(Gary V. Davis, on brief), for appellant.

(Arden Brannan Schell; Weiner, Weiner & Weiner, on brief), for appellee.

Elton Lee Miller, Jr., appeals the decision of the circuit

court denying his motion for a change of custody. Father contends

that because Daphyne Lynn Miller (mother) lives with Victor

Malcolm, a man to whom she is not married, father should have

custody of the parties' two children. Specifically, father

contends that the trial court erred by (1) failing to consider the

factors set out in Brown v. Brown, 218 Va. 196, 237 S.E.2d 89

(1977); (2) considering a statement made by Dr. Phyllis Daen in

the home study without documentation as to Dr. Daen's expertise or

the basis of her opinion; (3) finding that the children developed

nicely while residing with mother; (4) finding that father did not

object to mother's relationship with Malcolm; and (5) failing to

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. articulate in its opinion how the statutory factors set out in

Code § 20-124.3 applied to the facts of this case. Upon reviewing

the record and briefs of the parties, we conclude that this appeal

is without merit. Accordingly, we summarily affirm the decision

of the trial court. See Rule 5A:27.

"In matters concerning custody and visitation, the welfare

and best interests of the child are the 'primary, paramount, and

controlling considerations.'" Kogon v. Ulerick, 12 Va. App.

595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). In

assessing whether a change in custody is warranted, a trial

court applies a two-pronged test: "(1) whether there has been a

change of circumstances since the most recent custody award; and

(2) whether such a change would be in the best interests of the

child." Hughes v. Gentry, 18 Va. App. 318, 321, 443 S.E.2d 448,

450 (1994) (citing Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d

917, 921 (1983)). As the party seeking a modification of the

child custody order, father bore "'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, 423, 430 S.E.2d 559, 561 (1993)

(citation omitted). The trial court's determination of whether

a change of circumstances exists and its evaluation of the best

interests of the child will not be disturbed on appeal if the

- 2 - court's findings are supported by credible evidence. See

Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986).

Issues One and Three

Father contends that the trial court erred when it did not

find that the factors set out in Brown, 218 Va. 196, 237 S.E.2d

89, required a change of custody to him. We find no error.

In Brown, the Supreme Court of Virginia stated the

following:

The moral climate in which children are to be raised is an important consideration for the court in determining custody, and adultery is a reflection of a mother's moral values. An illicit relationship to which minor children are exposed cannot be condoned. Such a relationship must necessarily be given the most careful consideration in a custody proceeding.

Id. at 199, 237 S.E.2d at 91. However, Brown "did not establish

a per se rule" that a parent's cohabitation outside of marriage

precludes an award of custody. Sutherland v. Sutherland, 14 Va.

App. 42, 43, 414 S.E.2d 617, 618 (1992). "Brown reminds us that

in all custody cases the controlling consideration is always the

child's welfare and, in determining the best interest of the

child, the trial court must consider all the facts." Id. at

43-44, 414 S.E.2d at 618.

The evidence demonstrated that mother and Malcolm plan to

marry upon mother's divorce from Paul Russell. Mother testified

that she kept father fully informed and that her "first

- 3 - consideration was those boys and the surroundings in which they

were growing up in." Mother also testified that she and father

agreed that the boys would live with him until the end of the

school year, but that father told her the week after she closed

on her new house that he wanted custody.

As noted by the trial court, the situation here differed

significantly from the facts of Brown. In Brown, the evidence

indicated that the mother's ongoing relationship had a negative

effect on her young children. See Brown, 218 Va. at 200, 237

S.E.2d at 92. No similar evidence was presented in this case.

Whereas the Court in Brown found the mother to be unfit, the

trial court here noted that father "voices no Brown v. Brown

concerns" as the parties admitted that both parents were fit and

competent. While the trial court considered the fact that

mother lived with Malcolm, the trial court noted that in this

instance it was "inappropriate" to place much weight on those

concerns as "[b]oth parents have had live-in relationships prior

to marriage," a reference to the fact that the parties lived

together prior to their own marriage.

As the party seeking to change custody, father bore the

burden to prove a material change in circumstances and that the

change warranted the transfer of custody to him. Therefore,

there is no merit in father's contention that mother should have

been required to prove that the relocation to North Carolina

- 4 - would be beneficial to the children. See Keel, 225 Va. at 611,

303 S.E.2d at 921.

The trial court's findings are supported by the evidence.

We find no error in the trial court's analysis of this matter

under the standards set out in Brown.

Issue Two

Father contends that the trial court erred by considering

the statement reported by Dr. Phyllis Daen and included in the

home study that the boys wanted to stay in mother's custody. We

find father's contention to be without merit.

The parties stipulated to the admission of the home study.

Based upon consideration of the home study and other evidence,

the trial court made its decision. Other witnesses, including

father, testified that the boys indicated that they wanted to

return to mother's custody. We find no error in the trial

court's reliance on the stipulated home study report and the

information contained therein.

Issue Four

Father contends that the trial court erred when it found

that he did not object to mother's relationship with Malcolm.

Mother testified that she kept father fully informed concerning

her move to North Carolina and that she assured father "from the

beginning that I would make those boys very accessible to him.

He's their father." Mother also testified that father never

- 5 - objected to her move or to her relationship with Malcolm.

Father admitted that he did not object when mother relocated to

North Carolina with Malcolm and that he did not tell her that he

wanted to change their arrangement until he filed the motion to

change custody in March 1998. Father also admitted that the

boys believed "the entire time" that they would be returning to

their mother in North Carolina at the end of the school year.

Whether father initially objected was a factual question to

be determined by the trial court based upon the testimony of the

witnesses. "The credibility of the witnesses and the weight

accorded the evidence are matters solely for the fact finder who

has the opportunity to see and hear that evidence as it is

presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455

S.E.2d 730, 732 (1995). We will not reverse the trial court's

factual finding, which was based upon evidence received ore

tenus.

Issue Five

Finally, father contends that the trial court failed to

sufficiently articulate how it considered the statutory factors

set out in Code § 20-124.3 when reaching its custody decision.

Father concedes that the trial court is not required to quantify

the weight given to any particular factor.

The trial court's opinion letter demonstrates that the

trial court considered the necessary factors. The trial court

- 6 - noted that it "carefully considered those provisions of the

Virginia Code which are to be considered in custody decisions."

While the trial court did not specifically cite the provisions

of Code § 20-124.3, it incorporated specific statutory factors

into its discussion of the case, noting that the boys "developed

nicely and performed well" while mother was the primary care

giver; that the boys expressed the desire to return to mother's

care; that both parents were fit and competent; and that both

parents were willing to promote "ample and frequent contact"

with the non-custodial parent. The trial court found that the

parties agreed that the boys would return to mother's custody at

the completion of the 1997-98 school year.

The trial court expressly found that "the boys' best

interests will be served if their mother serves as primary

physical custodian." The record proves that the trial court

considered the statutory factors. Its decision is supported by

the evidence. Therefore, we find no grounds to reverse the

trial court's custody determination.

Accordingly, the decision of the circuit court is summarily

affirmed. Affirmed.

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