Opinion
Record No. 1634-93-2
April 5, 1994
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY ROBERT G. O'HARA, JR., JUDGE
(Donald E. Jeffrey, III; Hill Rainey, on brief), for appellant.
(Marcus D. Minton; M. Duncan Minton, Jr.; White, Hamilton, Wyche Shell, on brief), for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
James D. Lee (father) appeals the denial of his motion to change custody of his minor daughter from Susan D. Lee (mother) to himself. He raises two issues on appeal: (1) whether the trial court erred in finding insufficient evidence of changed circumstances to warrant changing custody of the minor child; and (2) whether the trial court erred in awarding the father approximately five weeks of visitation per year with the child.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
"Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it." Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988).
I.
In determining whether a change of custody should be made, trial courts are 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.
The father contended that the overseas transfer of the mother was a change in circumstances. Noting that the mother's transfer "involves what would be a change in a routine military duty assignment and basically nothing more," the trial court found that
[t]he evidence . . . is that it is to a regular and routine assignment, albeit to Germany and overseas; but there's nothing to lead the Court to believe that in any way that that assignment would have a negative or substantially detrimental effect on the child. It is indeed not a substantial change in circumstances that would warrant a reversal of custody.
This finding recognizes a change in circumstances. However, it concludes that the change does not warrant a change in custody. Credible evidence supports these findings.
Major Thomas Small testified that he and his family had recently returned from the same overseas military base, which had all standard facilities, including a new child care center. Major Small also testified that the mother's duties at the base would most likely require only regular daytime work hours. The father presented no evidence, other than his own impressions, to refute this testimony.
This Court will not disturb the trial court's determination that the mother's duty assignment overseas was a change in circumstances, but did not warrant changing custody of the minor child.
II.
The trial court's determination of the amount of visitation that was in the child's best interests "is reversible only upon a showing that the court abused its discretion." M.E.D. v. J.P.M., 3 Va. App. 391, 398, 350 S.E.2d 215, 220 (1986). The father requested six weeks summer visitation and two weeks Christmas visitation. The trial court awarded him thirty days of summer visitation and one week at Christmas. We cannot say that the trial court abused its discretion in setting this visitation schedule.
Accordingly, the decision of the trial court is affirmed.
Affirmed.