COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Bumgardner Argued at Alexandria, Virginia
TERRY R. RYCHLIK MEMORANDUM OPINION * V. Record No. 0903-97-4 PER CURIAM FEBRUARY 3, 1998 JEANETTE RIFFE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Gerald Bruce Lee, Judge Stephen Andrew Armstrong for appellant.
Raymond D. Kline for appellee.
In this appeal Terry R. Rychlik (father) appeals the denial
of his petition for change of custody of his son. Father
contends that the trial court abused its discretion in continuing
custody of the child with Jeanette Riffe (mother) and restricting
father's presentation of proof at trial. We find no error and
affirm.
On December 12, 1994, the Juvenile and Domestic Relations
District Court for the County of Fairfax awarded custody of the
child to mother. Father subsequently filed a petition on July
25, 1996 in the juvenile and domestic relations district court,
alleging the child had been sexually abused by another child who
was cared for in the day care center the parties' child attended
and that the child suffered physical and mental abuse. He
petitioned the court for sole custody, or, in the alternative, * Pursuant to Code § 17-116.010 this opinion is not designated for publication. increased visitation and a change in day care provider. The day
care provider in question was the child's maternal grandmother.
The petitions were denied.
Father appealed to the circuit court which found that
father's allegations of abuse or neglect had "no evidentiary
basis," that "the best interests of the child are served by
maintaining the current custodial arrangement," and that "there
has been no change of circumstances which would, when analyzed in
conjunction with evaluation of what is in the best interests of
the child, justify a change of custody." Father filed a Motion
to Reconsider, which the court denied. In essence, father
presents two issues for this Court to address, viz, whether the
court abused its discretion in denying his petition for a change
of custody and whether father's right to a fair trial was denied.
I.
Modification of Child Custody Order
A decision on whether to modify a child custody order is
committed to the sound discretion of the trial court. Wilson v.
Wilson, 18 Va. App. 193, 195, 442 S.E.2d 694, 696 (1994) (citing
Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10,
11 (1986)). 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.
2 318, 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) (quoting Yohay v. Ryan, 4 Va. App. 559, 565-66,
359 S.E.2d 320, 324 (1987)). A 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. Walker v. Fagg, 11 Va. App. 581, 586, 400 S.E.2d 208, 211 (1991);
Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986)
(citing Moyer v. Moyer, 206 Va. 899, 904, 147 S.E.2d 148, 152
(1966)).
Father first contends that the trial court ignored the
evidence of sexual and physical abuse, consisting of testimony
that abrasions, present on the child's anus, were consistent with
digital penetration and that the child had bruises on his
buttocks, and bruises and insect bites on his legs. A statement
from the child regarding the alleged sexual abuse was also
admitted.
However, the evidence of sexual and physical abuse was
inconclusive and in conflict. The investigating police officer
testified that he had fully investigated the allegations of
3 sexual abuse and had not found enough evidence to proceed. Two
social workers testified that they had investigated the
allegations of physical abuse and neglect arising from the
bruises and bites, but dismissed the claims as unfounded. Mother
presented testimony that the bruises and insect bites were not
out of the ordinary for a child of such age. Finally, the court
heard evidence that, at the time of trial, mother had transferred
the child to a new day care provider. Viewing the evidence in
the light most favorable to the mother, as we are required to do,
see Wilson, 18 Va. App. at 194, 442 S.E.2d at 695 (citing Martin
v. Pittsylvania County Dep't of Soc. Servs., 3 Va. App. 15, 20,
348 S.E.2d 13, 16 (1986)), and giving deference to the trial
court's resolution of the conflicts in the evidence, see Bell
Atlantic Network Servs. v. Virginia Employment Comm'n, 16 Va.
App. 741, 746, 433 S.E.2d 30, 33 (1993), we find the trial court
did not abuse its discretion in finding that neither sexual nor
physical abuse had occurred.
After determining that no change in circumstances had
occurred since the most recent custody order, the trial court
found that a change in custody was not in the best interests of
the child. Father contends on appeal that the court erred by
basing its determination of the best interests of the child on a
"tender years" presumption in favor of mother and that the error
violated his right to due process. It is well established that
the presumption that a child of tender years should be in the
4 care of his or her mother has been abolished in Virginia. See
Code § 31-15; Visikides, 3 Va. App. at 72, 348 S.E.2d at 42. We
find the trial court did not violate this principle. In arriving
at its conclusion, the trial court reviewed each of the statutory
factors for determining the best interests of the child as
outlined in Code § 20-124.3; indeed, we find the record "is
replete with findings as to the enumerated factors." Wilson, 18
Va. App. at 195, 442 S.E.2d at 696. Furthermore, it contains no
evidence whatsoever that the court relied on the tender years
doctrine, and father does not cite any. Finally, father argues that the court's custody ruling is
internally inconsistent, contending that the court entered a
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Bumgardner Argued at Alexandria, Virginia
TERRY R. RYCHLIK MEMORANDUM OPINION * V. Record No. 0903-97-4 PER CURIAM FEBRUARY 3, 1998 JEANETTE RIFFE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Gerald Bruce Lee, Judge Stephen Andrew Armstrong for appellant.
Raymond D. Kline for appellee.
In this appeal Terry R. Rychlik (father) appeals the denial
of his petition for change of custody of his son. Father
contends that the trial court abused its discretion in continuing
custody of the child with Jeanette Riffe (mother) and restricting
father's presentation of proof at trial. We find no error and
affirm.
On December 12, 1994, the Juvenile and Domestic Relations
District Court for the County of Fairfax awarded custody of the
child to mother. Father subsequently filed a petition on July
25, 1996 in the juvenile and domestic relations district court,
alleging the child had been sexually abused by another child who
was cared for in the day care center the parties' child attended
and that the child suffered physical and mental abuse. He
petitioned the court for sole custody, or, in the alternative, * Pursuant to Code § 17-116.010 this opinion is not designated for publication. increased visitation and a change in day care provider. The day
care provider in question was the child's maternal grandmother.
The petitions were denied.
Father appealed to the circuit court which found that
father's allegations of abuse or neglect had "no evidentiary
basis," that "the best interests of the child are served by
maintaining the current custodial arrangement," and that "there
has been no change of circumstances which would, when analyzed in
conjunction with evaluation of what is in the best interests of
the child, justify a change of custody." Father filed a Motion
to Reconsider, which the court denied. In essence, father
presents two issues for this Court to address, viz, whether the
court abused its discretion in denying his petition for a change
of custody and whether father's right to a fair trial was denied.
I.
Modification of Child Custody Order
A decision on whether to modify a child custody order is
committed to the sound discretion of the trial court. Wilson v.
Wilson, 18 Va. App. 193, 195, 442 S.E.2d 694, 696 (1994) (citing
Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10,
11 (1986)). 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.
2 318, 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) (quoting Yohay v. Ryan, 4 Va. App. 559, 565-66,
359 S.E.2d 320, 324 (1987)). A 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. Walker v. Fagg, 11 Va. App. 581, 586, 400 S.E.2d 208, 211 (1991);
Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986)
(citing Moyer v. Moyer, 206 Va. 899, 904, 147 S.E.2d 148, 152
(1966)).
Father first contends that the trial court ignored the
evidence of sexual and physical abuse, consisting of testimony
that abrasions, present on the child's anus, were consistent with
digital penetration and that the child had bruises on his
buttocks, and bruises and insect bites on his legs. A statement
from the child regarding the alleged sexual abuse was also
admitted.
However, the evidence of sexual and physical abuse was
inconclusive and in conflict. The investigating police officer
testified that he had fully investigated the allegations of
3 sexual abuse and had not found enough evidence to proceed. Two
social workers testified that they had investigated the
allegations of physical abuse and neglect arising from the
bruises and bites, but dismissed the claims as unfounded. Mother
presented testimony that the bruises and insect bites were not
out of the ordinary for a child of such age. Finally, the court
heard evidence that, at the time of trial, mother had transferred
the child to a new day care provider. Viewing the evidence in
the light most favorable to the mother, as we are required to do,
see Wilson, 18 Va. App. at 194, 442 S.E.2d at 695 (citing Martin
v. Pittsylvania County Dep't of Soc. Servs., 3 Va. App. 15, 20,
348 S.E.2d 13, 16 (1986)), and giving deference to the trial
court's resolution of the conflicts in the evidence, see Bell
Atlantic Network Servs. v. Virginia Employment Comm'n, 16 Va.
App. 741, 746, 433 S.E.2d 30, 33 (1993), we find the trial court
did not abuse its discretion in finding that neither sexual nor
physical abuse had occurred.
After determining that no change in circumstances had
occurred since the most recent custody order, the trial court
found that a change in custody was not in the best interests of
the child. Father contends on appeal that the court erred by
basing its determination of the best interests of the child on a
"tender years" presumption in favor of mother and that the error
violated his right to due process. It is well established that
the presumption that a child of tender years should be in the
4 care of his or her mother has been abolished in Virginia. See
Code § 31-15; Visikides, 3 Va. App. at 72, 348 S.E.2d at 42. We
find the trial court did not violate this principle. In arriving
at its conclusion, the trial court reviewed each of the statutory
factors for determining the best interests of the child as
outlined in Code § 20-124.3; indeed, we find the record "is
replete with findings as to the enumerated factors." Wilson, 18
Va. App. at 195, 442 S.E.2d at 696. Furthermore, it contains no
evidence whatsoever that the court relied on the tender years
doctrine, and father does not cite any. Finally, father argues that the court's custody ruling is
internally inconsistent, contending that the court entered a
ruling contrary to the trial court's own findings of fact that
the child suffered a personality change. The record fails to
support this contention. In its ruling from the bench, the court
simply noted that "the father observed certain changes in his
son's behavior in and around July 1996" which led the father to
contact Child Protective Services regarding the allegations of
sexual abuse. The court made no specific finding that the child,
in fact, suffered from a change of personality as father
contends.
Accordingly, we find that the court acted within its
discretion in determining that the best interests of the child
were not served by a change in custody.
II.
5 Presentation of Evidence
Father argues that the trial court abused its discretion by
scheduling the trial six months after the judgment of the
domestic relations court, and by only allotting three hours for
the trial. Issues related to control of a court's docket are
committed to the sound discretion of the court, and will not be
reversed on appeal unless there is a showing of an abuse of
discretion and prejudice to the party seeking a different trial
date. See Mills v. Mills, 232 Va. 94, 96, 348 S.E.2d 250, 252
(1986) (citing Autry v. Bryan, 224 Va. 451, 454, 297 S.E.2d 690,
692 (1982)). We find father's claims to be without merit.
Father neither explains how the trial court abused its
discretion in setting the trial date nor how he was prejudiced as
a result of the trial date he was given. "'We will not search
the record for errors in order to interpret [a party's]
contention and correct deficiencies in a brief.'" Gottlieb v.
Gottlieb, 19 Va. App. 77, 85-86, 448 S.E.2d 666, 671 (1994)
(quoting Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992)).
Father's argument that he was prejudiced when he was
confined to presenting his case in three hours is not supported
by the record. Although father argues that the three hour trial
prevented the court from considering his alternative claims, his
petition to change day care provider was clearly moot, as mother
had effected a satisfactory change of day care providers four
6 months prior to the trial. Furthermore, father failed to raise
the issue of increased visitation at trial and failed to address
it in his Motion to Reconsider. Father is thus barred from
raising the issue on appeal. Rule 5A:18. Finally, at the close
of his case, father's attorney stated, "That's all I have," and
did not indicate at trial in any way that he needed additional
time to present his case. In short, we find the trial court did
not abuse its discretion in limiting the presentation of evidence
to three hours. See Ohlen, 16 Va. App. at 422, 430 S.E.2d at 561
(finding no abuse of discretion in setting change of custody
proceeding for motions day despite time constraints).
For the reasons stated in this opinion, we affirm the
decision of the trial court.
Affirmed.