COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, Lorish and Senior Judge Annunziata UNPUBLISHED
Argued by videoconference
WILLIAM J. GULLEY MEMORANDUM OPINION* BY v. Record No. 0714-21-4 JUDGE LISA M. LORISH FEBRUARY 15, 2022 JENNIFER R. BRINKLEY, F/K/A JENNIFER R. GULLEY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Richard E. Gardiner, Judge
Susan M. Hicks (Rachel N. Hott; Hicks Crandall Juhl, P.C., on brief), for appellant.
Alex H. Xanttopoulos (Cambridge L. Baker; Roop Xanttopoulos Babounakis PLLC, on brief), for appellee.
William J. Gulley (“father”) petitioned the circuit court to change the custody agreement
he had with Jennifer R. Brinkley (“mother”). The court held a trial on father’s petition and
granted mother’s motion to strike, denying the father’s request to relocate. The court found that
father failed to meet the threshold of proving a material change in circumstances to allow for
reconsideration of the existing agreement, but also that even if he had, it was not in the best
interests of the children to disrupt the original arrangement. This appeal follows.
Father first argues the court erred by not considering the evidence in the light most
favorable to him at the motion to strike stage of the trial, and therefore applied the wrong legal
standard. But he procedurally defaulted this argument by failing to make it in front of the circuit
court. The core of father’s argument is that the court erred by holding that “a temporary
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. agreement to relocate cannot create a prima facie material change in circumstance.” The
temporary modification here was the parties’ agreement that father take the children to live with
him and his parents in Chesterfield County during the COVID-19 pandemic. This Court has
never articulated a precise test for whether a material change has occurred, and for good reason.
The standard is necessarily broad and fact-intensive. For the reasons below, we find no error in
the court’s conclusion that—on these particular facts—the temporary agreed change in custody
did not rise to a material change in circumstances.
Because we affirm on this ground, we do not consider father’s assignment of error that
the proposed new arrangement was not in the best interests of the children. Finally, we find no
error with the partial award of attorney fees in this case.
BACKGROUND
Father and mother finalized their divorce in December 2019. The final divorce order
incorporated their marital settlement agreement, which provided for joint legal custody of their
two children (then four and six years old) and shared equal physical custody using a 2-3-2-day
rotating schedule. Then, everyone lived in Northern Virginia, about five to ten minutes apart.
Northern Virginia is where the children were born and had spent their entire lives. Both parents
worked full-time and required daycare/preschool for the children. In March 2020, when the
children’s schools announced a two-week closure because of the worsening pandemic, father
proposed by text that he temporarily take the children with him to Chesterfield County, where he
would work remotely and live with his elderly parents who could care for the children. Mother
agreed.
A few days after arriving at his parents’ home, father emailed mother expecting that
“schools will be closed for much longer than 2 weeks” and suggesting that there was “a minimal
chance that we can sustain careers even having children 50% of the time during the week.”
-2- Given his “mother’s own personal experience of 35 years as a kindergarten teacher” and the
access there “to a huge yard, big wheels, multiple parks within walking distance that minimal to
no one ever frequent[s], etc.,” father proposed that the children stay with him there “in the short
term” and “until this is ‘over.’” He also conveyed his desire to “severely limit the amount of
people that they’re around” because his “dad is in the higher risk group.” A day later, mother
agreed to the arrangement and to “play it as it goes.”
Over the summer, as the pandemic continued and it became clear that schools in Northern
Virginia would not be returning to full-time in-person education, father proposed that “we’d
‘move’ here for the full school year” to keep giving their oldest son (who struggled with a
minimal attention span and some speech concerns) the benefit of his grandmother’s attention and
care as well as a likely earlier return to full-time in-person education. Mother agreed to the plan
based on their eldest son’s “best interest as it related to schooling [because she did not] want him
to be held back even more than he already had been with speech, advancement, etc.,” and
recognizing that “[c]learly he’s progressed quickly there with your mom instructing him/them
and [she has] noticed that.”
In February 2021, father filed a petition to modify custody seeking physical custody of
the minor children and revealing his intention to purchase a home in Chesterfield County and
remain there permanently. He followed that with a formal notice of intent to relocate (as
required by the martial settlement agreement) in March 2021. During this entire time, father
continued to reside with his children at the home of his parents, while maintaining his same
apartment in Northern Virginia. He remained employed through the same company based in
Northern Virginia, but with the continued ability to work remotely.
-3- A two-day trial on the petition to modify custody took place on May 17-18, 2021.1
Father presented evidence that mother had only visited the children periodically during the time
they were in Chesterfield County, yet had taken extensive international trips. He submitted into
evidence a calendar of mother’s travel created based on mother’s deposition. Father’s evidence
showed that mother had travelled about fifty-one days over ten months. He also presented
evidence that the children were doing well in school and had built close connections to their
grandparents.
Father called mother as a hostile witness and presented (uncontested) evidence that after
not having the children from March 13 to May 31, 2020, she had them for forty-two days over
the span of the next nine months. Mother testified that she could not visit more often or have
access to the children because father was concerned about exposing the children to COVID-19 or
transmission to his elderly parents. She agreed that the children benefited from their
grandmother’s tutoring and obtained good progress reports from school in Chesterfield County.
At the end of father’s presentation of evidence, mother moved to strike. The court looked
to the two factors a court must find to upset an otherwise final custody order: (1) the existence
of a material change in circumstances and (2) whether the custody modification was in the best
interests of the children. See Keel v. Keel, 225 Va. 606, 612 (1982). The court found that “given
the unusual facts of this case, [] I agree with mother’s counsel, that as a matter of law, this is not
a material change in circumstance.” Instead, “[i]t’s merely a temporary arrangement until the
pandemic is over and was never intended by either party, looking at the evidence that [the court
has] heard from the father thus far, never intended by either party to be a permanent arrangement
or even a change in circumstances within the meaning of that phrase.” The court then made an
1 We include here only the evidence relevant to the material change of circumstances analysis. -4- alternative finding that—even if there had been a material change—a custody modification and
permanent relocation to Chesterfield County would not be in the best interests of the children.
Father filed this timely appeal, assigning error to the circuit court’s decision on four
grounds: first, by applying the incorrect legal standard, which requires all evidence to be
considered in the light most favorable to the non-moving party; second, by finding that a
temporary agreement to relocate could not create a prima facie material change in circumstances;
third, by applying the incorrect standard for the best interests of the child analysis; and finally, by
awarding attorney fees under the incorrect legal standard.
ANALYSIS
A final custody order cannot be modified unless (1) there has been a material change of
circumstances since the prior decree, and (2) the change is in the best interests of the children.
Keel, 225 Va. at 612. After father petitioned to change the custody order here, the court heard
the evidence ore tenus.2 “When a court hears evidence at an ore tenus hearing, its decision is
entitled to great weight and will not be disturbed on appeal unless plainly wrong or without
evidence to support it.” Wheeler v. Wheeler, 42 Va. App. 282, 288 (2004) (internal quotation
omitted). This appeal challenges the court’s decision to grant mother’s motion to strike. “When
ruling on a motion to strike a plaintiff’s evidence, a trial court is required to accept as true all
evidence favorable to a plaintiff and any reasonable inferences that may be drawn from such
evidence.” Volpe v. City of Lexington, 281 Va. 630, 639 (2011). “On appeal, when this Court
reviews a trial court’s decision to strike a plaintiff’s evidence, we likewise view the evidence in
the light most favorable to the plaintiff.” Id. “Whether a change in circumstances exists is a
factual finding that will not be disturbed on appeal if the finding is supported by credible
evidence.” Ohlen v. Shively, 16 Va. App. 419, 423 (1993) (citation omitted).
2 Ore tenus simply means orally. Ore Tenus, Black’s Law Dictionary (11th ed. 2019). -5- I. The court used the correct legal standard in reviewing the motion to strike.
To begin with, father argues that the court applied the wrong legal standard to the motion
to strike. We agree with father that the correct standard requires a court to consider all of the
evidence as true and in the light most favorable to the non-moving party. Barnes v. Barnes, 64
Va. App. 22, 26 (2014). But father procedurally defaulted any argument that the court failed to
apply this standard by failing to make this argument below. Rule 5A:18 provides that “[n]o
ruling of the trial court . . . will be considered as a basis for reversal unless an objection was
stated with reasonable certainty at the time of the ruling, except for good cause shown or to
enable this Court to attain the ends of justice.” Failure to comply with this rule deprives this
Court of “active jurisdiction” to consider an issue on appeal. See Cilwa v. Commonwealth, 298
Va. 259, 266-67 (2019).
Mother properly raised this procedural bar in her brief. See Riddick v. Commonwealth,
72 Va. App. 132, 143 (2020) (“Because active jurisdiction goes not to the power of the court but
the exercise of its authority, the normal rules governing challenges to orders apply.”). And we
agree that father failed to preserve this issue before the circuit court. He neither objected to the
standard applied by the court during the hearing, nor made this argument in his motion to
reconsider. Father also failed to identify any basis in his opening brief for how the court applied
the incorrect standard, instead objecting to the court’s ruling on the merits given father’s
assertion that he presented “sufficient evidence on the issues of a material change in
circumstances.” Indeed, even at oral argument, father conceded that the court said it was
applying the correct standard. For these reasons, this assignment of error is waived.3
3 Father presented no argument in his opening brief, or at oral argument, for why his procedural default should be excused by the “good cause” or “ends of justice” exceptions in Rule 5A:18. And “we will not sua sponte raise them on his behalf.” Jones v. Commonwealth, 293 Va. 29, 39 n.5 (2017). -6- II. The court did not err in finding father failed to prove a material change in circumstances had occurred.
Father then alleges the court erred by finding a temporary agreement to relocate could not
“create a prima facie material change in circumstances.” The party seeking to change an
otherwise final custody arrangement must show a material change in circumstances before a
court can reconsider its prior order; otherwise, such reconsideration would be barred by
principles of res judicata. Sullivan v. Jones, 42 Va. App. 794, 803 (2004) (“Sullivan II”). This
bar for reconsideration protects judicial resources and promotes “stability and predictability
[which] usually benefit the child.” Id. at 806. Our Court has explained that “‘[c]hanged
circumstances’ is a broad concept and incorporates a broad range of positive and negative
developments in the lives of the children.” Parish v. Spaulding, 26 Va. App. 566, 573 (1998),
aff’d, 257 Va. 357 (1999). The requisite change of circumstances is “not limited to whether
negative events have arisen at the home of the custodial parent” and “is broad enough to include
changes involving the children themselves such as their maturity, their special educational needs,
and any of a myriad of changes that might exist as to them.” Keel, 225 Va. at 612. The standard
is also “broad enough to include positive changes in the circumstances of the noncustodial parent
such as remarriage and the creation of a stable home environment, increased ability to provide
emotional and financial support for the children, and other such changes.” Id.
While the standard is necessarily broad, it is a threshold that precedes a court’s separate
consideration of whether any change in a custodial arrangement is in the best interests of the
children. As a result, the material change in circumstances must be something other than a mere
demonstration that a new arrangement would be in the best interests of the children.
Father’s primary argument is that the court erred by finding, as a matter of law, that an
agreement to make a temporary change to a custody agreement could never constitute a material
change in circumstances. We do not need to decide whether such a blanket rule would be -7- justified, because the record is clear that the court considered the temporary agreement along
with the “unusual facts of this case” and “looking at the evidence [it had] heard from the father
thus far.” Of course, here, the evidence presented by father included the testimony of mother
(called as an adverse witness), such that the court had before it all relevant evidence concerning
whether a material change had occurred.4 As the court explained, there was also “no evidence”
that there “was any difficulty making” the prior joint physical custody agreement work. It was
only in this broader context that the court concluded that the temporary agreement to relocate in
this case did not constitute a material change in circumstances.5
Indeed, father’s evidence was that—under the agreed temporary relocation and change to
the physical custody allocation—the children had better lives in Chesterfield County. There was
simply no evidence for why the temporary change needed to be permanent, or said another way,
why the original shared custody arrangement in Northern Virginia (where there are at least
adequate schools and childcare options) was inadequate. Instead, the court properly considered
that father’s proposed change would eviscerate the existing joint physical custody agreement.
Father presented no evidence that he could not comply with the original agreement and return to
Northern Virginia, where he retained an apartment and employment, only that he was
uninterested in doing so. For this reason, father’s reliance on Sullivan II and Parish falls short.
We find significant that in both Sullivan II and Parish, the primary caregiver parent with
full physical custody moved to another state out of some necessity. Beginning with Sullivan v.
4 Father’s counsel conceded at argument that all relevant evidence was before the court by the close of father’s case. 5 While the court used the phrase “matter of law” in explaining that “I find as a matter of law that there has been no showing of a material change of circumstance,” we do not read this turn of phrase in isolation. Yarborough v. Commonwealth, 217 Va. 971, 978 (1977) (appellate courts do “not fix upon isolated statements of the trial judge taken out of the full context in which they were made, and use them as a predicate for holding the law has been misapplied”). -8- Knick, 38 Va. App. 773, 782 (2002) (“Sullivan I”), the mother originally sought to relocate
because she was “the parent in physical custody” of the child, “had become engaged, anticipated
marriage within a month and planned to relocate with her husband to South Carolina.” The trial
court approved the relocation, finding that she had shown a material change in circumstances and
that the move was in the best interests of the child. Id. On appeal, this Court agreed that there
was a material change in circumstances but found that the best interests of the child did not
warrant the move given the child’s strong relationship to the father and reversed the trial court on
that basis. Id. at 784-85.
But in the intervening time, relying on the lower court’s order permitting the relocation,
the mother moved to South Carolina with the child and repetitioned the court to approve the
same relying on the fact that the child had now resettled in South Carolina for nearly a year and
was doing well. Sullivan II, 42 Va. App. at 800-01. The trial court again held that the relocation
was in the best interests of the child. Id. at 802. On appeal a second time, this Court agreed that
the trial court had properly weighed the evidence presented by the mother, including the child’s
integration into the community in South Carolina, her continuing attachment to her mother who
had always been her primary caretaker and now had more time to be involved in her life, the
child’s relationship with her half-siblings, and the overall “attractive environment in which she
lives.” Id. at 807-09. In other words, the positive effects from a relocation were relevant to the
best interests of the child analysis, but not whether a material change had occurred.6
Parish is similarly inapposite. The mother, and primary caregiver, in that case made a
motion to relocate to Indiana that the trial court denied on procedural grounds. Parish, 26
Va. App. at 570. She moved anyway, and then made another motion seeking after-the-fact
6 This Court had already affirmed in Sullivan I that mother’s remarriage alone, as the primary caregiver, was a material change. -9- approval of the relocation. Id. She had remarried, and her new husband lost his job in Virginia
but found a job in Indiana. Id. at 574. She also presented evidence that her husband’s extended
family in Indiana would offer them assistance and rent-free housing. Id. This Court agreed with
the trial court that a material change in circumstances had occurred and found no error with the
court’s retroactive approval of the relocation. Id. at 575.
Here, father was living in his parents’ home temporarily, still maintaining his residence in
Northern Virginia. There was no evidence of remarriage, or new sibling relationships to
consider, and no need to relocate to provide for the children financially.7 And no evidence that
mother could not keep up her end of the joint custody bargain. Although mother travelled
internationally and did not see the children as often while living two hours away, father’s
evidence presents no reason the existing joint custody arrangement would not work again if
father returned to Northern Virginia. This is particularly so given father’s (understandable)
concerns about exposing the children, and his aging father, to COVID-19. Finally, the court
reasoned that the restrictions related to COVID-19 were beginning to be lifted everywhere,
removing any “necessity” of remaining in Chesterfield County.
We cannot say that the circuit court erred in its factual findings or conclusion that father
failed to prove a material change in circumstances. On these facts, in the light most favorable to
father, the parties’ temporary agreement alone was insufficient to demonstrate a material change.
We do not reach the question of whether a temporary agreement to change a custodial
7 Cf. Scinaldi v. Scinaldi, 2 Va. App. 571, 574 (1986) (holding that the mother’s move to New York was in the children’s best interests as she was about to lose her home and her job, without addressing whether there was a material change of circumstances); Wheeler, 42 Va. App. at 286 (finding that the mother’s worsening economic condition, which made her unable to afford rent and forced her to rely on charity and gifts, was a change of circumstances); Garner v. Ruckman, No. 0344-11-4 (Va. Ct. App. Nov. 29, 2011) (finding that the mother’s move with the child was a change of circumstances, considering that she moved to live with a relative after her income was reduced, the father failed to pay child support, she was facing eviction, and she had no reliable vehicle). - 10 - arrangement could ever constitute prima facie evidence of a material change in circumstances
because the court’s determination here was appropriately tied to the particular facts of this case.8
Because we find no error with the court’s conclusion on the material circumstances prong, we do
not consider the court’s alternative conclusion that relocation was not in the best interests of the
children.
III. The circuit court used the correct legal standard to award some attorney fees to mother.
Finally, father argues that the circuit court applied the incorrect legal standard to award
some attorney fees to mother because it ignored that father “had a bona fide belief that the
relocation was in the best interests of the children.” Father also argues that mother engaged in
acts which boosted the costs of litigation, including hiring an expert witness who stated he had
reviewed father’s deposition when the transcripts were not yet available.
“An award of attorney’s fees is a matter submitted to the trial court’s sound discretion
and is reviewable on appeal only for an abuse of discretion.” D’Ambrosio v. D’Ambrosio, 45
Va. App. 323, 344 (2005) (citing Graves v. Graves, 4 Va. App. 326, 333 (1987)). “[T]he key to
a proper award of counsel fees [is] reasonableness under all of the circumstances revealed by the
record.” McGinnis v. McGinnis, 1 Va. App. 272, 277 (1985).
Nothing suggests the circuit court applied the incorrect legal standard here. The court
explicitly stated, “[I]t’s a matter of equity and justice, and I will consider the request in light of
that standard and of course in light of whether the fees are reasonable. [Mother] doesn’t
automatically get $80,000 in fees just because [s]he’s prevailing.” The court reviewed attorney
fee statements from both parties, considered the merits of each claim, the equities at hand, and
8 While there are strong policy reasons to encourage parties to work together and make temporary changes to their custody arrangements when it is in the best interests of the children, without fear that the agreement will be used against them in the future, there are no doubt potential factual scenarios where an agreed temporary deviation from a custodial agreement could constitute a material change in circumstances. - 11 - the reasonableness of the fees. It awarded mother $37,000 in attorney fees, a little less than half
of mother’s overall fees. Finding no evidence that the court applied an incorrect standard, we
affirm the award of attorney fees.
CONCLUSION
We affirm the judgment below. Affirmed.
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