Opinion
Record No. 1959-92-2
June 22, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND JAMES B. WILKINSON, JUDGE.
(Irving M. Blank; Cheri Hodges Warren; Wells, Paris, Blank Brown, on brief), for appellant.
(Robert G. Cabell, Jr., on brief), for appellee.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Lee Ann Schalow ("mother") appeals the trial court's order modifying a prior custody determination and granting custody of the parties' two children to Mark Page Schalow ("father"). Mother claims that the trial court erred in (1) concluding that a change in custody was in the best interests of the children; and (2) basing its decision on the wishes of the children.
The Schalows received a final decree of divorce in June, 1990. Since that time, mother and father have demonstrated a great deal of animosity toward each other, necessitating the trial court's intervention on numerous occasions. The conduct of both parties has been blameworthy in certain respects involving child support and visitation orders. The court conducted a criminal assault trial concerning physical conflict between father and mother's boyfriend, Orifice. At one point, the court ordered Orifice (now mother's husband) to stay away from her home.
Under Code § 20-108, the trial court may "revise and alter such decree concerning the care, custody and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require." In determining whether a change in custody is warranted, a trial court applies a two-part 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 children. Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983). The second prong of the test, the best interests of the children, is the most important.Visikides v. Derr, 3 Va. App. 69, 71, 348 S.E.2d 40, 41 (1986). On appeal, we review the evidence in the light most favorable to the prevailing party below. Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). "The trial court's decision, when based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to support it." Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986).
Mother does not contest the fact that a material change in circumstances has occurred since the last custody determination. Rather, she denies that the evidence establishes that a change of custody is in the best interests of the children. She asserts that the two parents are not equally fit to care for the children. Mother contends that father's record of financial support for the children is "not good." She claims that he has set poor examples of guidance and discipline for the children by giving them inappropriate gifts, arguing with his current wife in their presence, and leaving their daughter home alone when she was not mature enough for this responsibility.
Mother alleges that she is a responsible and caring parent who has provided a "warm, consistent, active and affectionate home life" for the children. She has been very involved with their schools, promotes health food, and encourages their participation in a wide range of extra-curricular activities.
The record establishes, however, that mother has frequently interfered with father's court-ordered visitation, that she was responsible for the parties' divorce by reason of adultery, that Orifice was at her house numerous times in violation of the trial court's order, and that Orifice engaged father in a fight in the presence of at least one of the children. Father, who has remarried, has appropriate physical facilities for the children. He has shown a consistent interest in the children, and has maintained regular visitation despite the fact that he lives in Virginia Beach and mother lives in Richmond. The record provides support for the court's decision that father will be a suitable custodial parent and that placing the children with the father is in their best interests. This conclusion is not plainly wrong or without evidence to support it. Venable, 2 Va. App. at 186, 342 S.E.2d at 651.
Mother alleges that the trial judge erred in relying on his interview with the children in reaching his decision. She contends that, at eight and ten years old, the children lack the maturity and wisdom to make such a decision.
The trial judge has been involved with the case for over two years. He has heard a great deal of evidence from many witnesses on the custody issue. He considered the testimony of a psychologist who has worked extensively with the children. The judge was not relying solely on the wishes of the children in deciding to transfer custody to father. See Turner v. Turner, 3 Va. App. 31, 37, 348 S.E.2d 21, 24 (1986) (trial court's reliance on wish of eight year old girl as a factor in making custody ruling was proper). We conclude that the trial court did not err in considering the wishes of the children in reaching its decision.
For the reasons stated, we affirm the decision of the trial court.
Affirmed.