COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bumgardner Argued by teleconference
LAURA C. PANNER MEMORANDUM OPINION * BY v. Record No. 1739-97-2 JUDGE LARRY G. ELDER APRIL 14, 1998 BENJAMIN D. SILLMON
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Timothy J. Hauler, Judge Edward D. Barnes (Charles E. Powers; Barnes & Batzli, P.C., on briefs), for appellant.
Lawrence D. Diehl (Susanne L. Shilling; Shilling & Associates, on brief), for appellee.
Laura C. Panner ("mother") appeals the trial court's order
granting the motion of Benjamin D. Sillmon ("father") to transfer
the physical custody of their daughter, Katie, to him. Father
requests an award of attorney fees and costs incurred to defend
this appeal. For the reasons that follow, we affirm and remand.
I.
STANDARD OF REVIEW AND BURDEN OF PROOF
We disagree with mother's contention that the trial court
failed to apply a de novo standard of review to the J&DR court's order granting father's motion and erroneously placed the burden
on her to prove that placing Katie in her physical custody was in
Katie's best interests. After reviewing the record, we hold that * Pursuant to Code § 17-116.010 this opinion is not designated for publication. the trial court was aware of and applied the correct standard of
review and burden of proof.
II.
DR. STOLBERG'S TESTIMONY
Assuming that mother's motion was timely, we hold that the
trial court did not err when it denied her motion to strike the
testimony of Dr. Arnold L. Stolberg from the record. The
evidence in the record regarding Dr. Stolberg's background
established that he was qualified to evaluate parenting skills
and to testify about the effects of divorce upon children. The
evidence regarding Dr. Stolberg's possible bias was relevant to
his credibility as a witness and the weight of his opinion, not
to the admissibility of his testimony. See Ford v. Ford, 200 Va.
674, 679, 107 S.E.2d 397, 401 (1959).
III.
EVIDENTIARY RULINGS
A.
DR. STOLBERG'S TESTIMONY REGARDING MEALS IN CONCORD, N.C.
Although expert testimony is inadmissible if it is
"speculative or founded upon assumptions that have an
insufficient factual basis," Tittsworth v. Robinson, 252 Va. 151, 154, 475 S.E.2d 261, 263 (1996), we hold that Dr. Stolberg's
testimony regarding the probable location of Katie's and father's
meals during future visitation in North Carolina was neither
speculative nor unsupported by the record. Dr. Stolberg's
2 understanding is supported by father's testimony regarding the
arrangements he would make when visiting Katie in North Carolina.
B.
FATHER'S TESTIMONY REGARDING THE PROCEEDINGS IN THE J&DR COURT
We hold that the trial court did not abuse its discretion
when it admitted father's testimony regarding the proceedings in
the J&DR court. Father testified about the approximate date that
he petitioned the J&DR court for a change in child custody and
the date of one of the parties' appearances before that court.
These factual issues were material to the trial court's
understanding of the case, and father's testimony tended to prove
them. C.
FATHER'S TESTIMONY REGARDING THE FREQUENCY OF VISITATION
We hold that the trial court did not err when it prevented
father from testifying regarding how frequently he believed
visitation with Katie should occur. Because father's testimony
on this subject was not likely to indicate his propensity to
support Katie's relationship with mother under the custody
arrangement eventually ordered by the trial court, it was not
relevant to Code § 20-124.3(6).
D. MOTHER'S TESTIMONY REGARDING
HER PROPENSITY TO COOPERATE WITH FATHER
We hold that Rule 5A:18 bars us from considering mother's
argument that the trial court erred when it prevented her from
3 responding to her counsel's question about her willingness to
cooperate with father to transport Katie in between Richmond and
Concord, North Carolina. The trial court sustained father's
objection to the question posed by mother's counsel on the ground
that the question was leading. Without attempting to rephrase
the question, mother's counsel moved on to another line of
inquiry. Because mother failed to argue to the trial court that
her response to this question was relevant, we will not consider
this argument for the first time on appeal. E. TRIAL JUDGE'S PRESENCE DURING
FATHER'S PROFFER OF MR. MELBERG'S TESTIMONY
We hold the Rule 5A:18 also bars us from considering
mother's argument that the trial court committed reversible error
by remaining in the courtroom while father's counsel proffered
the excluded testimony of Peder K. Melberg. Our review of the
record indicates that mother did not object to the trial court's
presence at the time of the proffer.
IV.
MOTION TO STRIKE FATHER'S EVIDENCE
Mother contends that the trial court erred when it refused
to strike father's evidence at the conclusion of his
case-in-chief. However, because mother waived her right to stand
on her motion to strike father's evidence at the conclusion of
his case-in-chief by presenting evidence on her behalf following
this motion, we will consider her challenge to the sufficiency of
4 the evidence by examining the entire record. See Carter v.
Commonwealth, 223 Va. 528, 531, 290 S.E.2d 865, 866-67 (1982);
Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266
(1948).
V.
CHANGE IN CHILD CUSTODY
Mother contends that the trial court erred when it
transferred physical custody of Katie from her to father.
Because credible evidence supports the trial court's conclusions
as well as its factual findings and because the record does not
establish that its weighing of the statutory factors of Code
§ 20-124.3 was erroneous, we disagree. It is well established that a trial court should grant a
motion for a change in child custody only if the moving party
proves both (1) that a "change in circumstances" has occurred
since the most recent custody award and (2) that a change in
custody would be in the "best interests of the child." See Hughes v. Gentry, 18 Va. App. 318, 321, 443 S.E.2d 448, 450-51
(1994) (citing Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917,
921 (1983)). It is now established by statute that the second of
these two "prongs" -- the best interests of the child -- must be
the trial court's "primary consideration." Code § 20-124.1(B);
see also Keel, 225 Va. at 612, 303 S.E.2d at 921 (stating that
"the second prong . . . is clearly the most important part of the
two-part test").
5 On appeal, we consider the evidence in the light most
favorable to the party prevailing below. See Wilson v.
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bumgardner Argued by teleconference
LAURA C. PANNER MEMORANDUM OPINION * BY v. Record No. 1739-97-2 JUDGE LARRY G. ELDER APRIL 14, 1998 BENJAMIN D. SILLMON
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Timothy J. Hauler, Judge Edward D. Barnes (Charles E. Powers; Barnes & Batzli, P.C., on briefs), for appellant.
Lawrence D. Diehl (Susanne L. Shilling; Shilling & Associates, on brief), for appellee.
Laura C. Panner ("mother") appeals the trial court's order
granting the motion of Benjamin D. Sillmon ("father") to transfer
the physical custody of their daughter, Katie, to him. Father
requests an award of attorney fees and costs incurred to defend
this appeal. For the reasons that follow, we affirm and remand.
I.
STANDARD OF REVIEW AND BURDEN OF PROOF
We disagree with mother's contention that the trial court
failed to apply a de novo standard of review to the J&DR court's order granting father's motion and erroneously placed the burden
on her to prove that placing Katie in her physical custody was in
Katie's best interests. After reviewing the record, we hold that * Pursuant to Code § 17-116.010 this opinion is not designated for publication. the trial court was aware of and applied the correct standard of
review and burden of proof.
II.
DR. STOLBERG'S TESTIMONY
Assuming that mother's motion was timely, we hold that the
trial court did not err when it denied her motion to strike the
testimony of Dr. Arnold L. Stolberg from the record. The
evidence in the record regarding Dr. Stolberg's background
established that he was qualified to evaluate parenting skills
and to testify about the effects of divorce upon children. The
evidence regarding Dr. Stolberg's possible bias was relevant to
his credibility as a witness and the weight of his opinion, not
to the admissibility of his testimony. See Ford v. Ford, 200 Va.
674, 679, 107 S.E.2d 397, 401 (1959).
III.
EVIDENTIARY RULINGS
A.
DR. STOLBERG'S TESTIMONY REGARDING MEALS IN CONCORD, N.C.
Although expert testimony is inadmissible if it is
"speculative or founded upon assumptions that have an
insufficient factual basis," Tittsworth v. Robinson, 252 Va. 151, 154, 475 S.E.2d 261, 263 (1996), we hold that Dr. Stolberg's
testimony regarding the probable location of Katie's and father's
meals during future visitation in North Carolina was neither
speculative nor unsupported by the record. Dr. Stolberg's
2 understanding is supported by father's testimony regarding the
arrangements he would make when visiting Katie in North Carolina.
B.
FATHER'S TESTIMONY REGARDING THE PROCEEDINGS IN THE J&DR COURT
We hold that the trial court did not abuse its discretion
when it admitted father's testimony regarding the proceedings in
the J&DR court. Father testified about the approximate date that
he petitioned the J&DR court for a change in child custody and
the date of one of the parties' appearances before that court.
These factual issues were material to the trial court's
understanding of the case, and father's testimony tended to prove
them. C.
FATHER'S TESTIMONY REGARDING THE FREQUENCY OF VISITATION
We hold that the trial court did not err when it prevented
father from testifying regarding how frequently he believed
visitation with Katie should occur. Because father's testimony
on this subject was not likely to indicate his propensity to
support Katie's relationship with mother under the custody
arrangement eventually ordered by the trial court, it was not
relevant to Code § 20-124.3(6).
D. MOTHER'S TESTIMONY REGARDING
HER PROPENSITY TO COOPERATE WITH FATHER
We hold that Rule 5A:18 bars us from considering mother's
argument that the trial court erred when it prevented her from
3 responding to her counsel's question about her willingness to
cooperate with father to transport Katie in between Richmond and
Concord, North Carolina. The trial court sustained father's
objection to the question posed by mother's counsel on the ground
that the question was leading. Without attempting to rephrase
the question, mother's counsel moved on to another line of
inquiry. Because mother failed to argue to the trial court that
her response to this question was relevant, we will not consider
this argument for the first time on appeal. E. TRIAL JUDGE'S PRESENCE DURING
FATHER'S PROFFER OF MR. MELBERG'S TESTIMONY
We hold the Rule 5A:18 also bars us from considering
mother's argument that the trial court committed reversible error
by remaining in the courtroom while father's counsel proffered
the excluded testimony of Peder K. Melberg. Our review of the
record indicates that mother did not object to the trial court's
presence at the time of the proffer.
IV.
MOTION TO STRIKE FATHER'S EVIDENCE
Mother contends that the trial court erred when it refused
to strike father's evidence at the conclusion of his
case-in-chief. However, because mother waived her right to stand
on her motion to strike father's evidence at the conclusion of
his case-in-chief by presenting evidence on her behalf following
this motion, we will consider her challenge to the sufficiency of
4 the evidence by examining the entire record. See Carter v.
Commonwealth, 223 Va. 528, 531, 290 S.E.2d 865, 866-67 (1982);
Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266
(1948).
V.
CHANGE IN CHILD CUSTODY
Mother contends that the trial court erred when it
transferred physical custody of Katie from her to father.
Because credible evidence supports the trial court's conclusions
as well as its factual findings and because the record does not
establish that its weighing of the statutory factors of Code
§ 20-124.3 was erroneous, we disagree. It is well established that a trial court should grant a
motion for a change in child custody only if the moving party
proves both (1) that a "change in circumstances" has occurred
since the most recent custody award and (2) that a change in
custody would be in the "best interests of the child." See Hughes v. Gentry, 18 Va. App. 318, 321, 443 S.E.2d 448, 450-51
(1994) (citing Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917,
921 (1983)). It is now established by statute that the second of
these two "prongs" -- the best interests of the child -- must be
the trial court's "primary consideration." Code § 20-124.1(B);
see also Keel, 225 Va. at 612, 303 S.E.2d at 921 (stating that
"the second prong . . . is clearly the most important part of the
two-part test").
5 On appeal, we consider the evidence in the light most
favorable to the party prevailing below. See Wilson v. Wilson,
12 Va. App. 1251, 1254, 408 S.E.2d 576, 578 (1991). "The
judgment of a trial court sitting in equity, when based on
evidence heard ore tenus, will not be disturbed on appeal unless
plainly wrong or without evidence to support it." Peple v.
Peple, 5 Va. App. 414, 423, 364 S.E.2d 232, 237 (1988).
A. CHANGE IN CIRCUMSTANCES
We disagree with mother's contention that the trial court
erred when it concluded that a "change in circumstances" had
occurred since the entry of the prior custody order on March 6,
1995. The range of "changes" that satisfy the first prong of the
so-called "Keel test" is broad and may include either positive or
negative changes in the circumstances of either parent as well as
changes in the child stemming from his or her development. See
Keel, 225 Va. at 611-12, 303 S.E.2d at 921. "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." Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40,
41 (1986).
We hold that the evidence was sufficient to support the
trial court's finding that a change of circumstances occurred
since the most recent custody award. The record proved that both
parties had remarried since March 1995 and that Katie was about
6 to begin schooling that would require her to remain in one
geographic location on days that school was in session. In March
1996, mother moved with Katie to Concord, North Carolina, which
is over 250 miles away from Richmond. Because of Katie's
impending entry into kindergarten and the distance between
Concord and Richmond, mother's move to North Carolina rendered
the existing arrangement of custody and visitation impracticable.
Moreover, Dr. Stolberg testified that, by reducing father's
daily involvement in Katie's life, this move would have an
adverse impact upon Katie's development. Based on this evidence,
we cannot say that the trial court's finding of a change in
circumstances was erroneous. See Hughes, 18 Va. App. at 322, 443
S.E.2d at 451.
BEST INTERESTS OF CHILD
We also disagree with mother that the evidence was
insufficient to support the trial court's finding that changing
Katie's physical custody was in Katie's best interests or that
the trial court misapplied the factors of Code § 20-124.3.
When determining which custody arrangement is in the best
interests of a child, the trial court is required to consider the
evidence presented as it relates to the factors listed in Code
§ 20-124.3. See Code § 20-124.3. The trial court is not
required to quantify or elaborate what weight or consideration it
has given to each of the factors enumerated in Code § 20-124.3 or
7 to weigh each factor equally. See Sargent v. Sargent, 20 Va.
App. 694, 702, 460 S.E.2d 596, 599 (1995). However, the trial
court's findings must have some foundation based on the evidence
in the record, and if the trial court's findings lack evidentiary
support, its determination of child custody is an abuse of
discretion. Cf. Trivett v. Trivett, 7 Va. App. 148, 153-54, 371
S.E.2d 560, 563 (1988); Woolley v. Woolley, 3 Va. App. 337, 345,
349 S.E.2d 422, 426 (1986). We hold that the trial court's determination that
transferring Katie's physical custody from mother to father was
in Katie's best interests was neither unsupported by the evidence
nor an abuse of discretion. The trial court stated that it
considered all of the statutory factors of Code § 20-124.3,
except for Katie's preference, which it excluded because of
Katie's young age. The trial court also made numerous findings
regarding these factors, all of which are supported by the
evidence.
The evidence presented by both parties regarding their care
of Katie supports the trial court's findings that both parties
are fit to properly care for Katie, have sought to maximize her
opportunities for social, educational, and religious development,
and have created loving and nurturing environments for her in
their respective homes. This evidence also supports the trial
court's finding that Katie was "doing well with dad" during her
visitation with him prior to the hearing. Mother's testimony
8 that she has been Katie's primary caretaker since her birth and
father's testimony regarding his participation in Katie's care
during her early childhood supports the trial court's finding
that each parent contributed to Katie's early care and
development. The trial court's finding that father's assault of
Raymond Davis, mother's father, on the day the parties separated
was an aberration is supported by Mr. Davis' testimony that
father was never physically abusive to him or mother either
before or after that incident. The trial court's finding that
Katie's potential development will be maximized by her continued
exposure to her extended family in Virginia is supported by Dr.
Stolberg's testimony on this point. As the trier of fact, the
trial court was entitled to determine the weight and credibility
of Dr. Stolberg's testimony. See Ford, 200 Va. at 679, 107
S.E.2d at 401. The evidence regarding Katie's activities and
friendships in Richmond, her choice of schools, and her health
care supports the trial court's finding that "collateral
resources . . . located in the local Richmond area" will also
benefit her development.
VI.
ATTORNEY FEES AND COSTS
Based on the circumstances of this appeal, we grant father's
request for an award of attorney fees and costs incurred in this
proceeding. We remand this case to the trial court for an
assessment of a reasonable fee. See O'Loughlin v. O'Loughlin, 23
9 Va. App. 690, 479 S.E.2d 98 (1996).
For the foregoing reasons, we affirm the trial court's order
and remand for a determination of father's attorney fees and
costs related to this appeal.
Affirmed and remanded.