Opinion
Record No. 1235-93-4
Decided: June 7, 1994
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY, Herman A. Whisenant, Jr., Judge
Affirmed.
E. E. Sanders, Jr., for appellant.
Robert M. Cooper, Jr., for appellee.
Present: Chief Judge Moon, Judges Willis and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The judgment of the trial court is affirmed.
Mr. Stoppa contends that the trial court erred by ordering a child custody scheme different from that set forth in the previous pendente lite order without a showing of a change in circumstances. He cites Keel v. Keel, 225 Va. 606, 303 S.E.2d 917 (1983), and Peple v. Peple, 5 Va. App. 414, 364 S.E.2d 232 (1988). Mr. Stoppa did not assert this argument before the trial court. He cannot raise it for the first time on appeal absent circumstances requiring us to consider it in pursuit of the ends of justice. Rule 5A:18. Our review of the record does not convince us that "a miscarriage of justice has clearly occurred." Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987).
A pendente lite order, as its name suggests, is a holding action pending final decision in the case. See Weizenbaum v. Weizenbaum, 12 Va. App. 899, 903, 407 S.E.2d 37, 39-40 (1991). It is not preclusive of the issues on trial. For that reason, it does not have the effect of a final adjudication.
We find no abuse of discretion in the trial court's award of split physical custody. It is well established that the best interests of the child are "of primary and paramount importance" in custody disputes. Smith v. Pond, 5 Va. App. 161, 163, 360 S.E.2d 885, 886 (1987).
In testing the credibility and weight to be ascribed to the evidence, we must give trial courts and juries the wide discretion to which a living record, as distinguished from a printed record, logically entitles them. The living record contains many guideposts to the truth which are not in the printed record; not having seen them ourselves, we should give great weight to the conclusions of those who have seen and heard them.
Swanson v. Commonwealth, 8 Va. App. 376, 379, 382 S.E.2d 258, 259 (1989).
The trial court specifically addressed the factors of Code Sec. 20-107.2. It identified the problems that it believed jeopardized the child's maintaining a healthy and harmonious relationship with each parent, and it ordered a scheme of custody that it concluded would best counteract those problems. We find no abuse of discretion in that decision.
The judgment of the trial court is affirmed.
Affirmed.