Cloutier v. Queen

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Overton
Argued at Alexandria, Virginia

LESLIE J. CLOUTIER
OPINION BY
v. Record No. 2018-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 8, 2001
THOMAS W. QUEEN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert W. Wooldridge, Jr., Judge

Richard C. Shadyac, Jr. (James C. Roberts;
Feldesman, Tucker, Leifer, Fidell & Bank,
LLP; Mays & Valentine, L.L.P., on briefs),
for appellant.

Joseph A. Condo (Condo & Masterman, P.C., on
brief), for appellee.

In this appeal, Leslie J. Cloutier (mother) contends the

trial court erred in its decision denying her request to

relocate. Finding no error, we affirm.

I. BACKGROUND

In accordance with familiar principles, we view the

evidence in the light most favorable to the prevailing party

below. See Brown v. Brown, 30 Va. App. 532, 534, 518 S.E.2d

336, 337 (1999). Mother and Thomas W. Queen (father) were

married December 10, 1988 and have two minor children. The

parties separated July 1, 1998 and reached an agreement
providing for joint legal custody of their children. The

agreement provided:

a. The parties shall have joint legal
custody of their minor children, ZACHARY
QUEEN, born August 11, 1992, and ALISON
QUEEN, born August 28, 1994, who shall
reside with the parties as set forth below:

b. Except as provided in subparagraph c,
below, the Husband shall have residential
time with the children on the following
four-week rotation:

Week One: From Thursday at or before
5:30 through Sunday at 5:30 p.m.

Week Two: From Thursday at or before
5:30 through Saturday at 9:30 a.m.

Week Three: From Thursday at or before
5:30 through Monday at 9:30 a.m.

Week Four: From Thursday at or before
5:30 through Saturday at 9:30 a.m.

c. On Fridays, the children shall reside
with the Wife from 9:00 a.m. to 5:30 p.m.,
unless the Husband is off work that day due
to emergency weather conditions, in which
case the children shall remain with him.

d. At all times not otherwise specified
above, the children shall reside with the
Wife.

The agreement also provided for vacation and holiday time with

both parents. A final decree of divorce was entered October 8,

1999 that incorporated the joint custody agreement. At the time

of divorce, both parties lived in Fairfax County, where they had

lived for most of their marriage.

- 2 -
 Mother married Scott Livingston (Livingston) on

November 20, 1999. Livingston, an attorney, lives and works in

Mount Lebanon, Pennsylvania. On January 18, 2000, mother filed

a "Motion for Relocation and to Modify Custodial Access" so she

could move with her children to Livingston's residence in

Pennsylvania. Father filed a cross-motion requesting that the

trial court deny mother's request to relocate and grant him

primary residential custody of his children.

On May 9 and 10, 2000, the trial court held a hearing on

the relocation request and the request to change primary custody

of the children. At the conclusion of the hearing, the

chancellor found that "it is in the best interests of these

children to grant [mother's] motion to allow her to move" to

Mount Lebanon. On May 26, 2000, father filed a motion to

reconsider the court's ruling. On June 28, 2000, via telephone

conference call, the chancellor denied father's motion to

reconsider. On June 30, 2000, the chancellor entered an order

disposing of all pending issues and granted mother's request to

relocate. On July 5, 2000, the chancellor vacated the decree of

June 30, 2000 and scheduled a July 7, 2000 hearing to reconsider

the matter. On July 6, 2000, mother, at the court's request,

filed a memorandum in opposition to father's motion to

reconsider. On July 7, 2000, the trial court, after further

hearing and argument, reversed its prior ruling, stating:

- 3 -
 When I ruled in May, I said it was
because I found that it was in the best
interest of these children to be allowed to
move.
But as I have given that more thought
than I would like to share with the parties
since then, I believe that I wrongly equated
what was in Ms. Cloutier's best interest
with what's in the children's best interest.
And I have no doubt that it's in her
best interest for the children to be allowed
to move, but I also have no doubt that it's
in the best interest of the children to
remain here under a parenting arrangement
that is akin to that which the parties have
established.

Thus, the trial court ordered that the status quo remain

unchanged and denied both the mother's motion to relocate and

the father's motion to transfer primary residential custody to

him.

On July 18, 2000, mother filed a motion to reconsider this

ruling. The trial court denied mother's motion on July 24, 2000

and entered a final order on August 11, 2000, which rescinded

and vacated the court's initial decision to grant mother's

motion for relocation, granted father's motion to reconsider and

ultimately denied mother's motion for relocation. Mother

appeals from the trial court's August 11, 2000 decree.

II. TRIAL COURT'S VACATION AND RECONSIDERATION
OF THE JUNE 30, 2000 DECREE

Mother contends that the chancellor erred by vacating the

initial June 30, 2000 decree and entering a later final order

reversing his original decision. She argues that the chancellor

- 4 -
lacked authority to modify the initial June 30, 2000 decree

absent a finding of "changed circumstances." We disagree.

Rule 1:1 provides that, "[a]ll final judgments, orders, and

decrees, irrespective of terms of court, shall remain under the

control of the trial court and subject to be modified, vacated,

or suspended for twenty-one days after the date of entry, and no

longer." (Emphasis added.) If the trial court does not enter

an order suspending or vacating the final order within

twenty-one days, the trial court thereafter is divested of

jurisdiction over the matter. See Vokes v. Vokes, 28 Va. App.

349, 357-58, 504 S.E.2d 865, 869 (1998). Rule 1:1 allows the

trial court to correct or change an order within the

twenty-one-day window whenever circumstances require it. This

is not a new custodial proceeding, requiring a threshold showing

of a material change in circumstances, but rather it is a

continuation of the underlying hearing and disposition. 1 See

Smith v. Smith, 18 Va. App. 427, 432, 444 S.E.2d 269, 273 (1994)

1
Appellant cites a number of federal cases which require
the court to find a material change of circumstances prior to
granting a motion to reconsider. However, there is no federal
equivalent to Rule 1:1 and, therefore, federal cases on
reconsideration are inapplicable.
Appellant also relies on Baxter v. Baxter, No. 0258-00-4,
2000 WL 1339505 (Va. Ct. App. Sept. 19, 2000). We note that
Baxter v. Baxter and the cases it cites are not on point.
Furthermore, an unpublished opinion of this Court is not "to be
cited or relied upon as precedent except for the purpose of
establishing res judicata, estoppel or the law of the case."
Grajales v. Commonwealth, 4 Va. App. 1, 2 n.2, 353 S.E.2d 789,
790 n.2 (1987).

- 5 -
(which required no change of circumstances to modify a final

decree if done within the twenty-one-day period allowed by Rule

1:1). To hold otherwise would as stated by the chancellor

require "an abdication of what I think I'm charged with doing as

a judge." The chancellor must have the ability to enter a

timely order embodying a correct resolution of the case.

In the instant case, the chancellor's original decree was

entered June 30, 2000 and vacated July 5, 2000. Therefore, the

chancellor timely vacated the decree in accordance with Rule

1:1. The decision whether to reconsider the decree within the

twenty-one-day time period lies within the sound discretion of

the chancellor. See Howe v. Howe, 30 Va. App. 207, 213, 516

S.E.2d 240, 243 (1999). Thus, the chancellor, after reflection,

determined that his initial decision was erroneous and timely

corrected it in the same proceeding. Therefore, we hold that

the chancellor did not abuse his discretion in vacating the

June 30, 2000 decree that allowed wife's relocation with the

parties' children. 2

2
Because we find that the chancellor did not abuse his
discretion in vacating his June 30, 2000 decree, our review is
limited to whether the evidence supports his ultimate decision
that the mother failed to meet her burden of proof that the move
would be in the best interest of the children.

- 6 -
 III. DENIAL OF DUE PROCESS

A. "LOCAL RULES"

Mother next contends she was denied due process when the

trial court reconsidered its original ruling without giving her

an opportunity to respond to father's motion to reconsider, thus

violating "local rules" set out in The Fairfax Circuit Court

Manual. The cited sections of the "local rules" provide that

"[n]o response to the Motion for Reconsideration should be filed

by the original prevailing party unless and until a response is

requested by the Judge," and "[i]f the Judge may reconsider the

original ruling, the Judge will request a response to solely the

issue or issues the Judge may reconsider." (Emphasis in

original.)

As a preliminary matter, Code § 8.01-4 provides that "local

rules" are limited to "those rules necessary to promote proper

order and decorum and the efficient and safe use of the

courthouse facilities and the clerks' offices." "Local rules"

cannot affect the substantive rights of the litigants. In line

with these strictures, the Foreword to the Fairfax Circuit Court

Manual specifically states that:

the procedures set out herein are not Rules
and cannot provide a basis for the
imposition of sanctions, nor are they
intended to create additional pitfalls for
unwary practitioners, especially those who
do not often practice before our Court.
Thus, the judges will retain discretion not
to enforce a procedure strictly if the judge

- 7 -
 believes it would be unjust to do so under
the circumstances of that specific case.

* * * * * * *

[They are] not Rules of the Court.

Furthermore, on July 6, 2000, mother filed a response to

father's motion to reconsider, and the chancellor acknowledged

that appellant "filed an opposition to [the] motion to

reconsider, which I received and have reviewed." Appellant was

also given an opportunity to make oral argument to the trial

court concerning the reconsideration. Thus, we find no lack of

due process in mother's ability to present and argue her case.

She was provided with and took advantage of the opportunity to

respond to the motion for reconsideration, and the suggested

procedures set out in the Fairfax Circuit Court Manual impaired

no substantive or procedural due process right.

B. REMEDY NOT REQUESTED BY THE PARTIES

Next, mother argues that the trial court erred by

"impos[ing] a custody schedule on the parties that neither

party" requested. 3 However, father, in his response to mother's

motion, "pray[ed] that the [motion] be denied" and mother, in

her answer and opposition to father's cross-motion, requested

3
Mother relies upon Potts v. Mathieson Alkali Works, 165
Va. 196, 181 S.E. 521 (1935), for this proposition. However,
unlike the instant case, Potts was a case at law not a case in
equity. Potts holds only that a party cannot request one remedy
in his or her pleadings and then at trial request a different
remedy based upon a claim that was not set forth in the
pleadings. Thus, Potts is inapplicable in the instant case.

- 8 -
that the trial court "deny the Defendant's Cross-Motion to

transfer primary custody of the children to the Defendant."

Thus, each party was aware and on notice that the other party

had requested that the court deny their respective motions.

Furthermore, Code § 20-108 provides:

[t]he court may, from time to time after
decreeing as provided in § 20-107.2, on
petition of either of the parents, or on its
own motion or upon petition of any probation
officer or superintendent of public welfare,
which petition shall set forth the reasons
for the relief sought, 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.

(Emphasis added.) "The burden is on the moving party to show a

right to the relief sought." Hughes v. Gentry, 18 Va. App. 318,

326, 443 S.E.2d 448, 453 (1994) (citing Holmes v. Holmes, 7 Va.

App. 472, 482, 375 S.E.2d 387, 393 (1988)). If the moving party

fails to meet his or her burden of proof, the trial court

maintains the discretion to deny a motion to modify custody.

See Bostick v. Bostick-Bennett, 23 Va. App. 527, 478 S.E.2d 319

(1996); Hughes, 18 Va. App. 318, 443 S.E.2d 448. The moving

party must establish that modification of custody is in the best

interests of the child. Bostick, 23 Va. App. at 535, 478 S.E.2d

at 323. In determining child custody issues, including

relocation, the trial court's paramount concern and the

determinative factor must remain the "best interests of the

- 9 -
child," regardless of what the parents desire. See Stockdale v.

Stockdale, 33 Va. App. 179, 183, 532 S.E.2d 332, 335 (2000); see

also Brown, 30 Va. App. 532, 518 S.E.2d 336; Piatt v. Piatt, 27

Va. App. 426, 499 S.E.2d 567 (1998); Simmons v. Simmons, 1 Va.

App. 358, 361, 339 S.E.2d 198, 199 (1986). If the trial court

finds that relocation is not in the "best interests of the

child," the trial court must deny the relocation request. See

Wilson v. Wilson, 12 Va. App. 1251, 1255, 408 S.E.2d 576, 579

(1991); Scinaldi v. Scinaldi, 2 Va. App. 571, 573, 347 S.E.2d

149, 150 (1986). If maintaining the status quo is in the "best

interests of the child," the court shall deny any requests to

change custody and order that the status quo be maintained. See

Brown, 30 Va. App. at 538, 518 S.E.2d at 339.

In the instant case, the chancellor determined that neither

mother's request to remove the children from their current

environment nor father's proposal to grant him primary physical

custody was in the best interest of the children. The

chancellor was required to fashion an appropriate remedy that

comported with the best interest of the children, even if not

specifically requested by the mother or father. Thus, once the

issue of the appropriate custody or visitation plan for the

children was before the court, the court was not required to

adopt either parent's suggested remedy. The need to fashion

complete justice on the facts presented is the role of the

chancellor. A chancellor is required to make a custody

- 10 -
determination based solely upon the best interests of the

children. To limit a chancellor's remedy to only the custody

arrangement requested by one of the parents would unduly

restrict his or her options and allow a parent to circumvent the

statutory obligation of the chancellor to determine custody

based only upon the "best interests of the child."

IV. DENIAL OF MOTION TO RELOCATE CHILDREN

Mother next contends she met her burden of proof and the

trial court erred in denying her motion to relocate to

Pennsylvania with her children. When the court hears evidence

at an ore tenus hearing, its decision "'is entitled to great

weight and will not be disturbed [on appeal] unless plainly

wrong or without evidence to support it.'" Piatt, 27 Va. App.

at 432, 499 S.E.2d at 570 (quoting Venable v. Venable, 2 Va.

App. 178, 186, 342 S.E.2d 646, 651 (1986)). On appeal, we view

the evidence in the light most favorable to the prevailing party

below. See Brown, 30 Va. App. at 534, 518 S.E.2d at 337.

Therefore, the issue to be addressed is whether the evidence

supports the chancellor's August 11, 2000 order.

A. CHANCELLOR'S FAILURE TO REFER TO THE
STATUTORY FACTORS IN THE ORDER

Mother alleges that the trial court failed to consider the

statutory factors, as required by Code § 20-124.3, because in

reconsidering the case the chancellor "did not even mention, let

alone consider, the required statutory factors." Therefore,

- 11 -
mother alleges that the trial court erred. The record clearly

establishes that the chancellor considered all the evidence

presented by the parties and witnesses, appropriately analyzed

the statutory requirements, and referred to his consideration of

them during the proceedings.

The trial court must "give primary consideration to the

best interests of the child." Code § 20-124.2(B). Custody

determinations must be based upon the child's best interest as

viewed under the circumstances existing at the time of the

decision. See Wilson, 12 Va. App. at 1255, 408 S.E.2d at 579.

Failure to consider all the factors set out in Code § 20-124.3

is reversible error. See Piatt, 27 Va. App. at 434, 499 S.E.2d

at 571. However "[a]s long as the trial court examines the

factors, it is not 'required to quantify or elaborate exactly

what weight or consideration it has given to each of the

statutory factors.'" Sargent v. Sargent, 20 Va. App. 694, 702,

460 S.E.2d 596, 599 (1995) (emphasis added) (quoting Woolley v.

Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986)).

In the instant case, the trial court stated in its original

ruling on May 10, "I have fully considered all of the factors

contained in section 20-124.3 of the Code of Virginia,

particularly focusing on paragraphs 1 through 6 and paragraph 9,

which is the any other factors paragraph. I don't think 7 and 8

are applicable." During his further review of the case, he

re-evaluated the relationship of the evidence to the factors.

- 12 -
On July 7, 2000, after hearing arguments to reconsider, the

chancellor stated,

[i]t will come as no surprise to any of you
that this checkered chronology [of the case]
stems from the fact that I have wrestled
with my decision in this case from that May
date as I have wrestled with no other case
that I can remember for quite a while.

* * * * * * *

I think I'm able to distinguish between
the consternation that arises when, on the
one hand, I have to make a difficult
decision that's significantly going to
affect people's families. The tough calls,
as Mr. Shadyac calls them.
And on the other hand, when I make a
decision that, on continued reflection, I
become convinced was the wrong one.
And having reconsidered this matter, I
find that it is not in the best interest of
these children to be allowed to move from
McLean to Mount Pleasant [sic],
Pennsylvania, and I grant Mr. Queen's motion
to reconsider and I deny Ms. Cloutier's
motion for leave to move them.
I am convinced that it is in the best
interest of these children to maintain the
nature and extent of a relationship with
both of their parents. That can only be
achieved through the physical proximity that
the parties went to great lengths to
establish.
And contrary to my earlier ruling, I do
not believe that Mr. Queen and his children
can maintain the type and the quality of a
relationship that I think is in the best
interests of these children if that move
took place, that what they would gain from
the move would be outweighed by what they
would lose.

* * * * * * *

When I ruled in May, I said it was
because I found that it was in the best

- 13 -
 interest of these children to be allowed to
move.
But as I have given that more thought
than I would like to share with the parties
since then, I believe that I wrongly equated
what was in Ms. Cloutier's best interest
with what's in the children's best interest.
And I have no doubt that it's in her
best interest for the children to be allowed
to move, but I also have no doubt that it's
in the best interest of the children to
remain here under a parenting arrangement
that is akin to that which the parties have
established.

* * * * * * *

. . . [F]or me not to [deny the request
to relocate] would be an abdication of what
I think I'm charged with doing as a judge,
and that's determining the best interest of
these children and ruling accordingly.

In reviewing the record as a whole, it is clear that the

chancellor conscientiously considered the required factors

during the course of these proceedings.

B. BEST INTEREST OF THE CHILDREN

Mother further argues the trial court erred in failing to

find that the best interests of the children would be served by

permitting her to move them to Pennsylvania. 4 The party

requesting permission to remove the child from the state bears

the burden of proof. See Bostick, 23 Va. App. at 535, 478

S.E.2d at 323. "It is well settled in Virginia that the best

4
Mother also contends that the trial court erred in its
factual findings regarding Livingston's ability to move to
Virginia and mother's ability to be a stay at home mom in
Virginia. However the chancellor "didn't find [mother's
testimony] persuasive."

- 14 -
interests of the children controls the issue of a change of

custody or the issue of a custodial parent moving the children

to another state." Simmons, 1 Va. App. at 362, 339 S.E.2d at

200; see also Bostick, 23 Va. App. at 535, 478 S.E.2d at 323.

In reaching a decision on the "best interests of the child," the

court is guided by Code § 20-124.3. 5 See Stockdale, 33 Va. App.

at 181-82, 532 S.E.2d at 334.

5
Code § 20-124.3 provides:

In determining best interests of a child for
purposes of determining custody . . . the
court shall consider the following:
1. The age and physical and mental
condition of the child, giving due
consideration to the child's changing
developmental needs;
2. The age and physical and mental
condition of each parent;
3. The relationship existing between each
parent and each child, giving due
consideration to the positive involvement
with the child's life, the ability to
accurately assess and meet the needs of the
child;
4. The needs of the child, giving due
consideration to other important
relationships of the child, including but
not limited to siblings, peers and extended
family members;
5. The role which each parent has played
and will play in the future, in the
upbringing and care of the child;
6. The propensity of each parent to
actively support the child's contact and
relationship with the other parent, the
relative willingness and demonstrated
ability of each parent to maintain a close
and continuing relationship with the child,
and the ability of each parent to cooperate
in and resolve disputes regarding matters
affecting the child;

- 15 -
 Mother presented evidence showing positive results from her

anticipated move to Pennsylvania. Her children would have the

advantage of a new nuclear family, including Livingston and his

children. She testified, inter alia, that the children wanted

to move and live with Livingston, she had been and continues to

be their "primary caregiver," and her retirement after

relocating would allow her to attend to her children all day.

She also testified that she would support father's visitation

and offered to transport the children to him. Mother produced

evidence that Mount Lebanon was a good community and provided

excellent schools. This evidence supports her desire to

relocate; however, on appeal, we view the evidence in the light

most favorable to the prevailing party below. See Brown, 30 Va.

App. at 534, 518 S.E.2d at 337.

Thus, while these were factors to be weighed and considered

by the court, the record also disclosed other evidence relevant

7. The reasonable preference of the child,
if the court deems the child to be of
reasonable intelligence, understanding, age
and experience to express such a preference;
8. Any history of family abuse as that term
is defined in § 16.1-228; and
9. Such other factors as the court deems
necessary and proper to the determination.
The judge shall communicate to the
parties the basis of the decision either
orally or in writing.

Code § 20-124.3 has been amended since the May 9-10, 2000
hearing. The amendments make no substantive changes relevant to
this present appeal.

- 16 -
to the issue before the chancellor. The evidence established

that the joint custody arrangement currently in effect had

worked well. Father was involved with the children and their

activities. He attended school, extracurricular and sports

functions, helped the children with their homework and met their

needs when he was their caretaker. The children expressed a

desire to spend more time with him. They were doing well

socially and academically. Mother testified that their teachers

commented that the children "don't seem like they're from a

divorced family. They're happy. They're well-adjusted." In

sum, the evidence established that father was also an active

participant in the children's lives on a daily basis and their

current environment was a positive one.

If relocated, the children would move to Mount Lebanon,

Pennsylvania, approximately a four-hour drive from father. The

trial court determined that both mother and father were "very

good parents." "I have a mother and a father who are sharing

time and commitments in a way that should be applauded and that

has worked." The chancellor further explained:

I find that it is not in the best interest
of these children to be allowed to move from
McLean to Mount Pleasant [sic],
Pennsylvania, and I grant Mr. Queen's motion
to reconsider and I deny Ms. Cloutier's
motion for leave to move them.
I am convinced that it is in the best
interest of these children to maintain the
nature and extent of a relationship with
both of their natural parents. That can
only be achieved through the physical

- 17 -
 proximity and through the sort of custodial
arrangement that the parties went to great
lengths to establish.
And contrary to my earlier ruling, I do
not believe that Mr. Queen and his children
can maintain the type and the quality of a
relationship that I think is in the best
interests of these children if that move
took place, that what they could gain from
the move would be outweighed by what they
would lose.

* * * * * * *

I also have no doubt that it's in the
best interest of the children to remain here
under a parenting arrangement that is akin
to that which the parties have established.

The chancellor also stated that mother's arguments, that

the children like Livingston and Livingston's children, were not

relevant to his determination of the best interest of mother and

father's children. Thus, the chancellor concluded that father's

relationship with the children would be "substantially impaired"

by allowing mother to move them to Pennsylvania. See Stockdale,

33 Va. App. at 184, 532 S.E.2d at 335; Scinaldi, 2 Va. App. at

575, 347 S.E.2d at 151. After viewing all the evidence and

weighing the factors, the trial court concluded that mother

failed to meet her burden to prove that the best interest of the

children would be served by moving them to Pennsylvania. Based

upon the record before us, we hold that the chancellor's ruling

is not plainly wrong or without evidence to support it.

- 18 -
 Lastly, mother contends the trial court erred by not

considering the interests of the mother, the custodial parent, 6

in determining whether to grant the relocation request. 7 Mother

relies upon New Jersey case law for a "unity of interests"

analysis which mother urges this Court to adopt. She argues

that as a matter of law the interests of the children cannot be

divorced from those of their primary caregiver and, therefore,

whatever benefits mother will also benefit the children.

In Virginia, the law is clear that the "best interests of

the children controls the issue of a change of custody or the

issue of a custodial parent moving the children to another

state." Simmons, 1 Va. App. at 362, 339 S.E.2d at 200; see also

Stockdale, 33 Va. App. at 183, 532 S.E.2d at 335; Bostick, 23

Va. App. at 535, 478 S.E.2d at 323. The court may consider a

benefit to the parent from relocation only if the move

independently benefits the children. We decline to adopt a

"unity of interests" approach. 8

6
Although mother delineates herself the "custodial parent,"
both mother and father share joint custody of the children.
This is not a case involving a custodial parent and a
non-custodial parent with visitation rights.
7
We note that prior to the expiration of the twenty-one
days, mother put her home on the market and changed her work
status in reliance on the earlier decision. Although this
created a substantial hardship, which the trial judge
acknowledged, his final decision was based on the best interests
of the children.
8
Mother also alleges that the trial court punished her by
relying solely upon her statement that if her motion to relocate

- 19 -
 V. CONCLUSION

For the reasons set forth above, we affirm the judgment of

the trial court.

Affirmed.

was denied she would stay in Virginia. As previously noted, the
trial court's decision to deny mother's motion was based upon
the trial court's finding that it was not in the best interest
of the children to move from their current environment where
they were flourishing. Furthermore, the chancellor's reference
to mother's statement that she would remain in Virginia, if not
allowed to relocate, was not a part of his ruling. Only after
the judge announced his ruling did mother's attorney inquire:

MR SHADYAC: [] just so I understand the
Court's ruling, there's no change in
custody, there's no change in custodial
access. What you're contemplating is a
continuation of what existed prior --
THE COURT: That's what Ms. Cloutier said.
She wasn't going to move.
MR. SHADYAC: There was a cross petition
also, your Honor, for him to have custody.
THE COURT: I'm denying his cross petition.

Thus, the record does not establish that the trial court
relied solely upon mother's statement that she would not
relocate if her motion was denied.

- 20 -