Opinion
Record No. 0393-94-4
Decided: August 30, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Stanley P. Klein, Judge
Affirmed.
Kenneth L. Crosson, on brief), for appellant.
(Judith M. Bragan, on brief), for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
James Steven Bell appeals the trial judge's decision increasing his child support payments to Barbara Goodman, the children's mother, and allowing the mother to retain physical custody of the parties' two minor children. Specifically, the father raises two issues: (1) whether the trial judge erred in finding a change in circumstances that justified a modification of the father's child support payments; and (2) whether the trial judge erred by allowing the mother to retain physical custody of the children in light of evidence that the mother's male friend stayed overnight while the children were present. 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 judge. Rule 5A:27.
I.
The trial judge may make changes in child support orders "as the circumstances of the parents and the benefit of the children may require." Code Sec. 20-108. The party seeking a change in child support has the burden of proving, by a preponderance of the evidence, that there has been a material change in circumstances and that such a change justifies modification of the amount of support. Barnhill v. Brooks, 15 Va. App. 696, 700, 427 S.E.2d 209, 212 (1993). If the trial judge determines the evidence justifies a modification of child support, the trial judge must apply the guidelines set forth in Code Sec. 20-108.2 when determining the amount of support payable. Taylor v. Taylor, 10 Va. App. 681, 684, 394 S.E.2d 864, 866 (1990).
The trial judge found that the evidence proved a material change in circumstances because of the mother's move. He found that the mother "is now in the position where, except for these periods of extended visitations, she is the one who has to take care of the children all the time, the attendant expense for taking care of the children all of the time, and that, in and of itself, the court finds, is sufficient change in circumstances." The evidence supports this determination. The mother had moved from Virginia to Florida and the split-week custody arrangement which the parties had followed after their divorce was no longer feasible. The mother had added expenses because the children were in her home more often.
The trial judge then determined the amount of child support presumptively correct under Code Sec. 20-108.2. "Once the presumptive amount is determined, the trial court may deviate from the presumptive amount if such deviation is justified by factors recognized in Code Sections 20-108.1 and 20-107.2." Alexander v. Alexander, 12 Va. App. 691, 695-96, 406 S.E.2d 666, 668 (1991). The trial judge articulated the statutory factors set out in Code Sections 20-108.1 and 20-107.2 which the judge considered warranted a deviation from the guideline amount. Thus, the trial judge awarded the mother monthly child support payments of $496, which was the amount payable pursuant to the Code Sec. 20-108.2 guidelines minus the amount by which the mother's child care expenses would be reduced during the children's summer visitation with the father.
While the mother's income had increased substantially more than the father's during the interim period, that fact does not bar modification of the father's child support payments when otherwise warranted under the circumstances. The trial judge incorporated into the support guideline calculations the mother's increased income. As a consequence, both the overall amount of support and the percentage of that support for which the mother was responsible were proportionately increased.
Credible evidence supports the trial judge's decision that there had been a sufficient change in the parties' circumstances to warrant a review of the child support. Accordingly, the trial judge's decision is affirmed.
II.
In determining whether a change of custody should be made, the trial judge was required to apply a two-pronged test: "(1) whether there has been a change in circumstances since the most recent custody award; and (2) whether a change in custody would be in the best interests of the child." Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986). "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." Id. "[T]he controlling consideration is always the child's welfare and, in determining the best interest of the child, the trial court must consider all the facts." Sutherland v. Sutherland, 14 Va. App. 42, 43-44, 414 S.E.2d 617, 618 (1992).
The mother admitted that she had a long term sexual relationship with a man to whom she was not married. On four different occasions while her children were present, the man stayed overnight at her home for a weekend or more. The children were aware the man was there and were aware that mother and the man slept together when he visited.
The trial judge determined that there was not "any change in circumstances that would cause me to change the legal custodial situation with these children. There is simply no evidence of that." The trial judge prohibited the man from staying overnight until the couple married, but did not prohibit displays of affection between mother and the man, or contact between the children and the man.
We cannot say the trial judge erred when he found that there was insufficient evidence of a change in circumstances to warrant a change in custody. Accordingly, the decision of the trial judge is affirmed.
Affirmed.