Maria J. Lang v. Michael A. Lang

• Court: Court of Appeals of Virginia
• Decided: April 8, 1997
• Docket: 2193964
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

MARIA J. LANG MEMORANDUM OPINION * v. Record No. 2193-96-4 PER CURIAM APRIL 8, 1997 MICHAEL A. LANG

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY William G. Plummer, Judge Designate

(Drake T. Brodin, on brief), for appellant. (Dana James Carlson; Catherine M. Bowers; Duvall, Harrigan, Hale & Hassan, on brief), for appellee.

Maria J. Lang appeals the decision of the circuit court

denying her motion to allow her to move to Spain with the

parties' three minor children. The father, Michael A. Lang,

opposed the motion. Mother contends that the trial court erred

by (1) failing to consider the precedent of Simmons v. Simmons, 1

Va. App. 358, 339 S.E.2d 198 (1986), and Scinaldi v. Scinaldi, 2

Va. App. 571, 347 S.E.2d 149 (1986), and (2) failing to properly

weigh the evidence. 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.

Rule 5A:27.

"On appeal, we review the evidence in the light most

favorable to the prevailing party below. 'The trial court's * Pursuant to Code § 17-116.010 this opinion is not designated for publication. 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.'" Hughes v. Gentry, 18 Va. App.

318, 321-22, 443 S.E.2d 448, 451 (1994) (citations omitted). "It

is well settled in Virginia that the best interests of the

children controls . . . the issue of a custodial parent moving

the children to another state." Simmons, 1 Va. App. at 362, 339

S.E.2d at 200. As the party seeking to modify the existing visitation

arrangement, mother bore the burden to prove the modification was

in the children's best interests. Mother argued that, due to

unforeseen circumstances, her financial situation had worsened.

She also contended that a move to Spain would allow the children

to reunite with their maternal grandmother, to know extended

family members of both parents, and to benefit from a

multicultural and bilingual experience. Mother acknowledged that

father's visitation would decrease but argued that the children

could still maintain a close relationship with father.

Father argued that the children's lives would be disrupted

by the move and that he would be unable to maintain his close

beneficial relationship with them.

The trial judge ruled that the proposed move would be "a

major disruption" in the children's lives. The trial judge also

found the evidence of the claimed benefits to be insufficient,

particularly as to the educational opportunities available for

2 the children. The trial judge further found as follows:

[The father] has had a very loving and very

constructive relationship with his children

which has continued week to week. I mean,

every week there is some influence of the

father on the children and guidance given to

the children when he's not traveling. I

believe that that relationship with their

father continuing in that intense manner is

much more important than developing a

relationship with a whole extended family of

the mother in Spain who these children don't

really know. In addition, the evidence proved that mother had no exigency

requiring her to move and that she would not move to Spain

without the children. Upon that evidence, the trial judge found

that the denial of her motion "means that the children will have

the continuing benefit of the love and care of both parents,

which I think is paramount in their development and in their

favor."

Mother contends that the trial judge failed to consider

Simmons and Scinaldi. Although those cases are distinguishable,

we find no evidence that the trial judge failed to consider the

pertinent factors discussed in those cases. This Court in

Simmons noted the following: The relationship between parent and a

3 developing child, no matter how close, affectionate or demonstrative, naturally suffers as the distance between the two increases. As such, questions of custody and removal from the noncustodial parent's state of residency involve a balancing of interests. More often than not there are advantages and detriments on both sides of the issue. A trial court's role is to weigh those concerns and conscientiously seek the solution that serves the best interests of the children.

1 Va. App. at 364, 339 S.E.2d at 201-02. Furthermore, in

Scinaldi, this Court noted that there was no evidence the

relationship with the noncustodial parent could not be maintained

despite the move. 2 Va. App. at 575, 347 S.E.2d at 151. In those cases, the moves were from Virginia to Florida and

New York, respectively. In this instance, the proposed move was

to Spain. The evidence in this case proved that both parties had

played an active role in the children's lives and both were found

to be good parents. Mother's proposed move would prohibit father

from continuing his active role in the children's lives and would

reduce his visits and contacts with the children in exchange for

benefits found by the court to be speculative. See Carpenter v.

Carpenter, 220 Va. 299, 302, 257 S.E.2d 845, 847-48 (1979).

The record demonstrates that the trial judge considered the

evidence as it related to the children's best interests. See

Code § 20-124.3. The trial judge's decree "determining questions

of fact on conflicting evidence ore tenus has the weight of a

jury verdict, and will be permitted to stand unless plainly wrong

or without evidence to support it." Carpenter, 220 Va. at 302,

4 257 S.E.2d at 848. The decision is supported by evidence and is

not plainly wrong.

Accordingly, the trial judge's decision is summarily

affirmed.