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DEANE v. GARDNER




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the Virginia Court of Appeals.


DEANE

v.

GARDNER


COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Kelsey and Senior Judge Hodges

Record No. 0858-03-2

ROBERT DEANE

v.

ELLEN GARDNER, A/K/A

ELLEN DEANE

 

MEMORANDUM OPINION[1]
PER CURIAM

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
with

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
estopped

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.

BACKGROUND

The parties were married in 1982. The parties had three

children during the marriage: Jason, who was born in 1983,
Kacey,

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
also

filed a motion to amend custody and visitation, requesting
custody

of the children.

By order entered on May 31, 2002, the juvenile and domestic

relations district court (J&DR court) found no material
change in

circumstances had been proven and dismissed father’s motion to

modify custody and visitation with respect to Kacey and John.
The

parties agreed that Jason’s best interests would be served by

vesting his physical and legal custody with father, which the
J&DR

court ordered.

Father appealed the J&DR court’s decision concerning Kacey

and John to the trial court. Mother also filed a motion to
modify

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
with

the courts. In his supplemental report filed on November 22,

2002, he wrote that John desired a "50/50" custody
arrangement.

Kacey had earlier expressed a desire for a "50/50"
custody

arrangement, but later expressed a desire to live with father
for

ten days, then mother for four days, stating that she had a

"better relationship" with her father. The record
indicates that

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
custodial

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
"difficulties"

the children were experiencing "intrinsically stem[med] from the

inability of [the parents] to develop a parenting
partnership."

Grosse stated that both father and mother were "responsible
for

this."

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
as

"autocratic," and he stated that his relationship with
mother has

become more tense. Father testified that Kacey has been
"pulling

away" from her mother, especially since the issue of moving
to

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
care.

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
closing.

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
he

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
their

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
of

counsel in light of the factors set out in Code ? 20-124.3. The

trial court agreed with mother and concluded that the evidence
did

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
non-consecutive

weeks of vacation with the children, with father designating his

three weeks by April 1 of each year.

ANALYSIS

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
children.

See Hughes v. Gentry, 18 Va. App. 318, 321, 443 S.E.2d 448,
450-51

(1994). "This rule advances the obvious benefits of
providing

stability in the life of the child whose custody is the subject
of

the conflict between the parents." Id. at 322, 443 S.E.2d
at 451.

"Whether a change of circumstances exists is a factual
finding

that will not be disturbed on appeal if the finding is supported

by credible evidence." Visikides v. Derr, 3 Va. App. 69,
70, 348

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
material

change in circumstances occurred between the entry of the

September 2000 order and November 2002. The record shows that
the

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
tensions and

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
clinical

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
to

spend equal time with each parent. However, the preference of
the

children was but one factor for the trial court’s consideration,

was not dispositive of the issue, and did not rise to the level
of

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
motion.

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
take

the children on weekend trips. Father’s argument that mother was

estopped from requesting a change in visitation is without
merit.

"’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.
709,

721, 453 S.E.2d 580, 587 (1995) (citation omitted). Under the

circumstances of this case, we find no abuse of discretion by
the

trial court.

Furthermore, an award of guardian ad litem fees, like any

award of attorney’s fees, "is a matter for the exercise of
the

trial court’s sound discretion after consideration of the

circumstances and equities of the entire case." Davis v.
Davis, 8

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

affirmed.

Affirmed.

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.


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