Opinion
Record No. 0193-94-4
Decided: August 2, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, F. Bruce Bach, Judge
Affirmed.
(Ann W. Mische; Byrd, Mische, Bevis, Bowen Joseph, on briefs), for appellant.
(Eugene S. Rosera, pro se, on brief).
Present: Judges Benton, Coleman, and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Crystal Rosera Sarno appeals the denial of her motion to change physical custody of her two minor children from their father Eugene S. Rosera. 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 court. Rule 5A:27.
The mother raises several issues on appeal: (1) whether the trial court employed the correct test in determining whether a change in custody was warranted; (2) whether the trial court considered all relevant evidence in reaching its decision not to change custody; and (3) whether the trial court correctly analyzed the evidence in relation to the children's best interests and the factors contained in Code Sec. 20-107.2.
On appeal, we view the evidence in the light most favorable to the father, who prevailed below, and we grant all reasonable inferences that flow from that evidence. Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988). "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." Id.
Change in Custody Test
"A trial court, in determining whether a change of custody should be made, must 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).
The trial court did not make an explicit finding that there had been a change of circumstances since the most recent custody award. However, the court referred to the father's recent remarriage and the addition of a stepfamily in the home, noting:
there may be a reason a year from now . . . if they-these kids have been through an awful lot of turmoil here lately. I'd like to see how they do over the next year. If it doesn't work out in that home, there is no reason that they can't be moved then.
But right now both kids apparently have done pretty well . . . are doing pretty well. I'm just not going to change them.
This finding recognizes a change in circumstances caused by the father's remarriage. Similarly, the court's decree explicitly stated that "this Order may be revise[d] in the future if the blending of the new ROSERA family proves problematic." Therefore, the evidence supports the court's implicit determination that the father's remarriage and the presence of a new stepfamily in his home was a change of circumstances sufficient to satisfy the first prong of the test.
The second prong of the test requires a determination whether a change in custody is in the best interests of the children. After hearing the evidence, the trial court made express findings concerning the children's progress and current circumstances. Therefore, the record demonstrates that the trial court employed the proper test to determine whether the parties' changed circumstances warranted a change of custody.
Best Interests of the Children
In any child custody decision, the lodestar for the court is the best interest of the child." Smith v. Pond, 5 Va. App. 161, 163, 360 S.E.2d 885, 886 (1987). "[O]n review the 'decision of the trial judge is peculiarly entitled to respect for he saw the parties, heard the witnesses testify and was in closer touch with the situation than the [appellate] Court, which is limited to a review of the written record.' " Sutherland v. Sutherland, 14 Va. App. 42, 44, 414 S.E.2d 617, 618 (citation omitted).
The trial court expressly found that "both parents are certainly fit and proper people to have custody of the children." The trial court then determined that, given equally qualified parents, it was in the children's best interest not to change custody, as "these kids have been through an awful lot of turmoil here lately." While avoiding a change of custody merely to maintain the status quo might not withstand scrutiny on appeal under other circumstances, we cannot say that the trial court erred in finding that these children's best interests would be served by avoiding additional instability at the present time.
Similarly, while the children expressed a preference to live with their mother and while the psychologist recommended that the children's primary residence should be with the mother, we cannot say the trial court erred in maintaining custody with the father. The trial court had the opportunity to review the psychologist's report and to hear all the witnesses' testimony. Indeed, the trial court found that the psychologist's report indicated "it was a close call" between the parents for physical custody. The trial court had the duty to evaluate all the evidence and was not required to accept the psychologist's recommendation as a whole.
"After a material change in circumstances has been established, a trial judge, in determining the best interests of a child, may properly consider the factors set forth in Code Sec. 20-107.2." Ohlen v. Shively, 16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993). Upon our consideration of the record we conclude that the trial court's decision, while not based on an express application of the factors in Code Sec. 20-107.2, is not inconsistent with those factors. Credible evidence before the court disclosed that both parents were capable and loving and that neither home situation was clearly superior in all respects to the other.
Therefore, we cannot say the trial court's decision to have the father retain physical custody, with increased visitation to the mother, was plainly wrong or without evidence to support it.
Accordingly, the decision of the trial court is affirmed.
Affirmed.