NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.
COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
Record No. 0858-03-2
ELLEN GARDNER, A/K/A
SEPTEBMER 9, 2003
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Michael C. Allen, Judge
(Richard L. Locke; Robert W. Partin; Locke &
Partin, PLC, on brief), for appellant.
No brief for appellee.
Robert Deane, father, and Ellen Gardner, mother, are divorced
and had three children during their marriage. Father appeals a
decision of the trial court denying his motion for a change in
custody of two of the parties’ children. Father contends on
appeal that the trial court erred in: (1) finding no material
change in circumstances; (2) not awarding custody to him;
(3) ignoring the express preferences of the children to live
him; (4) awarding mother attorney’s fees; (5) disproportionately
allocating the guardian ad litem fees; (6) granting mother a
change in visitation; and (7) not finding that mother was
from arguing there was no material change in circumstances. Upon
reviewing the record and father’s brief, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
decision of the trial court. See Rule 5A:27.
The parties were married in 1982. The parties had three
children during the marriage: Jason, who was born in 1983,
who was born in 1987, and John, who was born in 1990. The trial
court entered a final divorce decree on May 23, 2001, nunc pro
tunc to September 25, 2000, awarding primary physical custody of
the children to mother and visitation to father.
The record indicates that, after entry of the September 2000
custody order, the relationship between mother and two of the
children became strained, particularly when mother indicated she
wanted to move to Atlanta with the children. Father filed a
motion for an injunction to prohibit the move to Atlanta. He
filed a motion to amend custody and visitation, requesting
of the children.
By order entered on May 31, 2002, the juvenile and domestic
relations district court (J&DR court) found no material
circumstances had been proven and dismissed father’s motion to
modify custody and visitation with respect to Kacey and John.
parties agreed that Jason’s best interests would be served by
vesting his physical and legal custody with father, which the
Father appealed the J&DR court’s decision concerning Kacey
and John to the trial court. Mother also filed a motion to
visitation during the summer vacation time period. On November
25, 2002, the trial court held a hearing on the issues. At that
time, Kacey was fifteen years old and John was twelve years old.
The guardian ad litem was involved with the case from the
time of the original custody award. He filed several reports
the courts. In his supplemental report filed on November 22,
2002, he wrote that John desired a "50/50" custody
Kacey had earlier expressed a desire for a "50/50"
arrangement, but later expressed a desire to live with father
ten days, then mother for four days, stating that she had a
"better relationship" with her father. The record
both children do well in school.
In his report, the guardian ad litem also stated that he
asked father what changes warranted consideration of the
and visitation arrangements. Father cited mother’s visit to
Atlanta with the intent of possibly moving there and a
deterioration in communication between the parents.
The record also contains several letters from Richard Grosse,
a licensed clinical social worker, to the guardian ad litem.
Grosse had met with members of the family. In a letter dated
February 22, 2002, Grosse expressed concern about the parents’
"inability" "to work together." He wrote
that each parent claims
the other is uncooperative. Grosse opined that any
the children were experiencing "intrinsically stem[med] from the
inability of [the parents] to develop a parenting
Grosse stated that both father and mother were "responsible
Father testified at the hearing that since September 2000,
"things" "have deteriorated rather rapidly"
and that mother exerts
more "control" over the children. He described mother
"autocratic," and he stated that his relationship with
become more tense. Father testified that Kacey has been
away" from her mother, especially since the issue of moving
Atlanta arose because Kacey did not want to move. Father
testified that Kacey has anger toward her mother.
Father also stated that in November 2001, mother suddenly
left the area for three months, leaving the children in his
Father testified that mother did not tell him or the children
where she was going. However, mother did visit with the children
during this time period. The parties appear to dispute the facts
about this time period. The report of the guardian ad litem
indicates that, during this time, the parties sold the marital
residence where mother had been residing and mother’s future
housing arrangements were not secured at the time of the
She, therefore, asked father to keep the children until her
housing situation was remedied.
Father testified that he believes it would be best for the
children that he have primary physical custody of them because
communicates well with the children, he supports the children
emotionally, he has a flexible work schedule allowing him to
attend certain school events, and he provides a safe and secure
environment where they do not have to worry about what they say.
He stated that he has a close bond with the children. He
recognizes the children need both parents to be involved in
lives, which is what he desires. Father also expressed a desire
to have flexibility in the visitation schedule, with each parent
having a few weeks with the children during the summer.
The trial court met in camera with Kacey.
At the conclusion of father’s evidence, mother moved to
strike the evidence on the ground that father failed to show a
material change in circumstances and that it was in the best
interests of the children to change the custody arrangement. The
guardian ad litem deferred to the motion to strike. The trial
court stated that it considered the evidence presented, the
supplemental report of the guardian ad litem, and the arguments
counsel in light of the factors set out in Code ? 20-124.3. The
trial court agreed with mother and concluded that the evidence
not establish a material change in circumstances requiring a
modification in custody. The trial court modified the summer
visitation schedule so that each parent had three
weeks of vacation with the children, with father designating his
three weeks by April 1 of each year.
As the party seeking to modify custody, father bore the
burden to prove: (1) there had been a material change of
circumstances since the most recent custody award and (2) that a
change in custody would be in the best interests of the
See Hughes v. Gentry, 18 Va. App. 318, 321, 443 S.E.2d 448,
(1994). "This rule advances the obvious benefits of
stability in the life of the child whose custody is the subject
the conflict between the parents." Id. at 322, 443 S.E.2d
"Whether a change of circumstances exists is a factual
that will not be disturbed on appeal if the finding is supported
by credible evidence." Visikides v. Derr, 3 Va. App. 69,
S.E.2d 40, 41 (1986).
We review the evidence in the light most favorable to mother
as the prevailing party below. Turner v. Turner, 3 Va. App. 31,
34, 348 S.E.2d 21, 22 (1986). So viewed, we cannot conclude that
the trial court erred in finding father failed to prove a
change in circumstances occurred between the entry of the
September 2000 order and November 2002. The record shows that
parents have difficulties working together on issues related to
the children and, as the trial court stated, the children have
become "immersed in the litigation." Many of the
poor communications cited by father as reasons to change custody
could be resolved if the parents developed a "cooperative
parenting partnership" as suggested by the licensed
social worker. The record shows that mother and Kacey have had
some difficulties in their relationship and Kacey expressed a
desire to spend more time with father. John expressed a desire
spend equal time with each parent. However, the preference of
children was but one factor for the trial court’s consideration,
was not dispositive of the issue, and did not rise to the level
supporting a change of custody. Indeed, the record indicates the
children are doing well in school while in mother’s custody.
Therefore, the trial court did not err in denying father’s
Furthermore, the trial court did not abuse its discretion in
making a change in the visitation schedule. The trial court
stated that the change improved the scheduling for both parents.
Moreover, in modifying the visitation schedule, the trial court
granted father’s request that he not be required to return the
children until Monday mornings in the summer so that he could
the children on weekend trips. Father’s argument that mother was
estopped from requesting a change in visitation is without
"’An award of attorney fees is a matter submitted to the
trial court’s sound discretion and is reviewable on appeal only
for an abuse of discretion.’" L.C.S. v. S.A.S., 19 Va. App.
721, 453 S.E.2d 580, 587 (1995) (citation omitted). Under the
circumstances of this case, we find no abuse of discretion by
Furthermore, an award of guardian ad litem fees, like any
award of attorney’s fees, "is a matter for the exercise of
trial court’s sound discretion after consideration of the
circumstances and equities of the entire case." Davis v.
Va. App. 12, 17, 377 S.E.2d 640, 643 (1989). We cannot say that
the trial court abused its discretion in requiring father to pay
eighty percent of the guardian ad litem fees.
Accordingly, the decision of the circuit court is summarily
Code ? 17.1-413, this opinion is not
designated for publication.