Richard B.Schoonover v. Petula Lee Green Schoonover

• Court: Court of Appeals of Virginia
• Decided: September 7, 1999
• Docket: 0554993
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Frank

RICHARD B. SCHOONOVER MEMORANDUM OPINION * v. Record No. 0554-99-3 PER CURIAM SEPTEMBER 7, 1999 PETULA LEE GREEN SCHOONOVER

FROM THE CIRCUIT COURT OF FLOYD COUNTY Ray W. Grubbs, Judge

(Harry F. Bosen, Jr.; Harry F. Bosen, Jr., P.C., on brief), for appellant.

(John S. Huntington, on brief), for appellee.

Richard B. Schoonover (father) appeals from the February 17,

1999 order of the circuit court changing custody of the parties'

two sons to Petula Lee Green Schoonover (mother). On appeal,

father contends that the trial court erred by finding (1) that

mother proved that there had been a material change in

circumstances since the last custody decision; and (2) that the

transfer of custody was in the children's best interests. 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.

As the party seeking to modify custody, mother bore the

burden to prove "(1) whether there has been a change of

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 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, 450-51

(1994) (citing Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921

(1983)). See Code § 20-108. The decision to modify a child

custody order is committed to the sound discretion of the trial

court. See Wilson v. Wilson, 18 Va. App. 193, 195, 442 S.E.2d

694, 695-96 (1994). "'The court, in the exercise of its sound

discretion, may alter or change custody or the terms of visitation

when subsequent events render such action appropriate for the

child's welfare.'" Id. (quoting Eichelberger v. Eichelberger, 2

Va. App. 409, 412, 345 S.E.2d 10, 11 (1986)). 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 court's findings are supported by

credible evidence. See Walker v. Fagg, 11 Va. App. 581, 586, 400

S.E.2d 208, 211 (1991).

Material Change in Circumstances

Father contends that the trial court entered its most

recent custody order on September 24, 1998, and, therefore,

mother was obligated to prove that there had been a material

change in circumstances during the period between the September

and December hearings. We disagree. It is apparent from the

record that the trial court made no final custody determination

in its order of September 24, 1998. The trial court did not

- 2 - deny mother's motion to change custody. In the September order,

the trial court found that it would be in the children's best

interests to have father retain custody and to increase mother's

visitation. However, the trial court ordered father to arrange

for the educational testing and counseling of the children as

recommended by the licensed clinical psychologist. Significantly,

the trial court also scheduled an additional hearing in December

"regarding the children's education and counseling." The trial

court opened the December hearing by noting that "we're here for

review of the custody and visitation arrangement." During that

hearing, the court noted that it was being held

for the Court to review whether or not a correct decision was made last time and to see the interaction of the parents with the children and how their progress was being noted within the classroom and outside the classroom. . . . I wanted the opportunity to review the matter to answer some questions that the Court had. That was the purpose, really, of this proceeding.

Thus, the December hearing was an additional evidentiary

hearing on mother's pending motion. Mother was required to

present evidence that there had been a material change in

circumstances since the 1993 order under which father received

physical custody.

"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). At the time mother filed her

- 3 - motion, the boys were five years older than they were when the

trial court entered the original custody order. In 1993, only

the older boy had begun elementary school. In 1998, both

children were experiencing difficulties in school. Therefore,

credible evidence supports the finding of the trial court that

there had been a material change in circumstances since the

previous custody order.

Best Interests of the Children

"In matters of a child's welfare, trial 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, 327-28, 387 S.E.2d 794, 795 (1990). We find no

abuse of discretion in the trial court's finding that it was in

the best interests of the children to change custody.

At the December 1998 hearing, the parties presented evidence

concerning the children's progress in school. The evidence

demonstrated that father did not respond when teachers sent home

notes indicating that the older son was not turning in his

homework. Father did not respond to teachers' requests for

conferences. Despite the fact that the older boy received only Ds

and Cs on his first two report cards for fifth grade, father

waited until two weeks prior to the hearing to meet with the

teachers to discuss the boy's schoolwork. The trial court found

that father had "done nothing to support your son in the needs

- 4 - that have been expressed here insofar as his learning

advancement is concerned."

Mother presented evidence that she remained involved in the

boys' education despite the fact she did not have custody. She

met with the teachers and came to the school to have lunch with

the boys.

In addition, despite the trial court's expressed concerns

about the parents' refusal to cooperate with each other, father

refused to enroll in the Children of Divorce seminar when so

directed by the court. Mother completed the class.

Therefore, credible evidence supports the finding of the

trial court that it was in the best interests of the children to

change custody. Accordingly, the decision of the circuit court is

summarily affirmed.

Affirmed.

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