Susan M. Stephens v. Dale Edward Warren

• Court: Court of Appeals of Virginia
• Decided: November 19, 1996
• Docket: 2218954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Benton and Elder Argued at Richmond, Virginia

SUSAN M. STEPHENS MEMORANDUM OPINION * BY v. Record No. 2218-95-4 JUDGE JAMES W. BENTON, JR. NOVEMBER 19, 1996 DALE EDWARD WARREN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Rosemarie Annunziata, Judge Carolyn T. Hogans (Dennis M. Hottell; Dennis M. Hottell & Associates, on briefs), for appellant.

J. Thomas Fromme, II (Sherman & Fromme, on brief), for appellee.

In this custody dispute, the trial judge denied Susan M.

Stephens' motions to modify custody and child support and to

require psychological evaluations and a home study. Stephens

contends that the trial judge erred by (1) denying her request

for an independent psychological examination of the child, (2)

refusing to modify custody, (3) refusing to reduce her child

support obligation, and (4) ordering her to pay a portion of the

father's attorney's fees. Dale Edward Warren, the father, filed

a motion to dismiss the appeal on the ground that the mother

failed to file a complete transcript of the proceedings below.

Because the excerpts of the transcript that were filed contain

extensive findings by the trial judge, we consider those excerpts

* Pursuant to Code § 17-116.010, this opinion is not designated for publication. and affirm the judgment.

I.

The record on appeal proves that at the time of the

parties' divorce in 1989, the final decree awarded custody of the

child to the father. In 1994, the mother filed motions seeking

an immediate modification of custody, a change in support, a

change in visitation, a psychological evaluation of the child,

and attorney's fees. The father denied the mother's allegations,

opposed the motions, and requested an award of his fees.

Following a hearing, the trial judge denied the mother's motion

for a psychological evaluation. The mother then withdrew her

motion for a home study and entered into a consent order with the

father giving the mother extended visitation during December

1994. At a later evidentiary hearing, the evidence proved that

circumstances in the mother's life had changed since the 1989

divorce. She had remarried, given birth to another child,

assumed custody of her husband's niece, left her former

employment, and begun operating a day care center from her home.

The mother's income had decreased from approximately $3,235 per

month to approximately $1,080 per month.

The evidence also proved that the child, whose custody was

at issue, was emotionally stable and had adapted very well to his

parents' divorce. Based on her finding that the child had a

uniquely healthy mental state, the trial judge concluded that the

- 2 - father had strong parenting abilities. Specifically, the trial

judge found that the father actively supported the child's

relationship with his mother and effectively educated the child.

The father testified that he had a total debt of

approximately $15,000, and that a substantial part of the debt

was incurred during the parties' marriage. Based on the

evidence, the trial judge entered a final order denying a change

in custody, denying a modification of child support, and awarding

$5,000 in attorney's fees to the father. The mother appealed. II.

"Whether to grant the motion [for a psychological evaluation

of the child] was within the discretion of the trial judge."

Carrico v. Blevins, 12 Va. App. 47, 51, 402 S.E.2d 235, 238

(1991). The mother argued that a psychological evaluation was

"necessary to fully apprise the Court of the current custodial

situation, and . . . would assist the Court in reaching a

determination on [the mother's] pending custody motion, and thus

[it would be] in [the child's] best interest." The trial judge

found that a psychological evaluation was not needed because

there were no "true, psychological issues" in the case. The

trial judge found that the mother had not presented "enough

[evidence] to suggest to me that the child is significantly

destabilized or even nearing destabilization in his present

circumstance."

Because the record contains no evidence that a psychological

- 3 - evaluation would provide particular assistance to the trial

judge, we hold that the trial judge did not abuse her discretion

in denying the motion.

III.

To justify a change in custody, a parent must prove two

elements: (1) that a material change in circumstances has

occurred, and (2) that a change in custody would be in the

child's best interests. Keel v. Keel, 225 Va. 606, 611, 303

S.E.2d 917, 921 (1983). [D]espite changes in circumstances, there can be no change in custody unless such change will be in the best interests of the children. The second prong, then, is clearly the most important part of the two-part test. It underscores the importance we place upon securing the best interests of children whose interests, in the final analysis, must be protected by the courts.

Id. at 612, 303 S.E.2d at 921. The trial judge found that the

mother proved a material change in circumstances. However, the

trial judge denied the motion on the grounds that the mother

failed to prove that a modification of custody would be in the

child's best interests.

When ruling on the best interests of the child, a trial

judge must "make a rational comparison between the circumstances

of the two parents as those circumstances affect the children."

Id. at 613, 303 S.E.2d at 922. In making the comparison, the

trial judge must determine "which parent is best qualified to

provide the highest quality of care to the child and which home

- 4 - will provide the child the greatest opportunity to fulfill his or

her potential." Turner v. Turner, 3 Va. App. 31, 36, 348 S.E.2d

21, 23 (1986). On appeal, the trial judge's "decision will not

be set aside unless plainly wrong or without evidence to support

it." Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795

(1990).

The mother argues that the trial judge inappropriately

emphasized the stability of the child in his current environment

and, in effect, required that she prove the change was "needed."

The Supreme Court has ruled that "although a settled environment

may have its benefits, it is simply another factor to be

considered in determining the best interests of the children

[and] . . . cannot be used to preclude examination of other

pertinent factors." Keel, 225 Va. at 611, 303 S.E.2d at 920.

The record reveals that although the trial judge did

emphasize that the child "is unusually stable and well-adjusted

and comfortable," the judge did not allow that factor to preclude

an analysis of other relevant considerations. For example, the

judge focused at length on the father's unique parenting

abilities. The evidence proved that the father actively promoted

the child's relationship with his mother and her new husband.

The trial judge also found that the father excelled at educating

the child in subtle ways and instilled valuable personal and life

skills. The trial judge found that the father was highly

motivated to be a good parent.

- 5 - The trial judge appropriately applied a comparative approach

and found that, despite the improvements in the mother's

lifestyle, the father was still most likely to provide the best

environment for the child. Although the judge did not discredit

the mother's parenting skills, the judge did attribute the

child's unique stability and happiness to the father's abilities.

Moreover, the trial judge found that the child was

performing well at school. The judge also expressed concern that

a change in the child's school would not be in his best interest.

Because the trial judge's findings addressed the overall best

interests of the child and were not plainly wrong, we affirm the

decision. IV.

After the trial judge denied the motion for change in

custody, the mother sought a reduction in the amount of child

support she was paying. The mother argues that the trial judge

erred by refusing to reduce her child support obligation and by

failing to make the findings required by Code § 20-108.1. We

disagree.

When seeking a modification of child support, the moving

party must prove that a material change in circumstances occurred

and that the change justifies altering the support amount. See

Kaplan v. Kaplan, 21 Va. App. 542, 547, 466 S.E.2d 111, 113

(1996). A trial judge's decision that is based upon evidence at

an ore tenus hearing "will not be disturbed on appeal unless it

- 6 - is plainly wrong or without evidence in the record to support

it." Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383

S.E.2d 28, 30 (1989).

The evidence revealed that the mother voluntarily terminated

a job where she earned $3,235 per month and began to operate a

day care center where she earned approximately $1,080 per month.

The trial judge's refusal to modify the child support award is

supported by the evidence that the mother's change in employment

was voluntary. Thus, the income reduction was not a material

change in circumstance that justified a reduction. See Antonelli

v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991).

The only grounds upon which the trial judge could have found

a material change, therefore, were the additional expenses the

mother incurred in caring for her new child and her husband's

niece. Because the mother calculated the expenses of the

children by including expenses that had not changed due to the

children, however, the mother's evidence failed to demonstrate

exactly how much her expenses had increased due to the children.

Nevertheless, the trial judge did consider the fact that her

expenses had increased but declined to modify the support award.

The trial judge ruled that in light of the father's

financial situation, the changes in the mother's life were not

material and did not warrant a modification of the support award.

The evidence proved that the father continued to have

substantial unpaid debt, most of which was incurred during the

- 7 - marriage. Because the evidence supports that ruling, it is not

plainly wrong.

The mother also argues that the trial judge erred by failing

to make findings as to the presumptive guideline amount and the

deviation from that amount. In view of the mother's involuntary

change in employment and the trial judge's finding of no material

change in circumstances, the trial judge was not required to make

the findings otherwise required by the Code. Crabtree v. Crabtree, 17 Va. App. 81, 88-89, 435 S.E.2d 883, 888 (1993).

V.

"The key to a proper award of counsel fees is reasonableness

under all of the circumstances revealed by the record."

Ellington v. Ellington, 8 Va. App. 48, 58, 378 S.E.2d 626, 631

(1989). "An award of attorney fees is discretionary with the

[trial judge] after considering the circumstances and equities of

the entire case and is reviewable only for an abuse of

discretion." Gamer v. Gamer, 16 Va. App. 335, 346, 429 S.E.2d

618, 626 (1993).

The trial judge ruled that although there was a viable

visitation dispute, "[t]hat doesn't mean that you bring a custody

case every time you have a visitation issue." The trial judge

found that the mother's decision to seek a change of custody was

not reasonable. In addition, the evidence proved that the

husband was carrying a substantial debt remaining from the

marriage. Based on these circumstances, the judge ruled that she

- 8 - was "going to consider the fact that neither of these parties has

a lot of money, but I am going to award $5,000." In light of the

financial circumstances of the parties and the trial judge's

finding that the motions were not warranted, we hold that the

trial judge's decision to award the father a partial sum of

attorney's fees does not constitute an abuse of discretion.

For these reasons, we affirm the judgment.

Affirmed.

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