Parish v. Spaulding

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Annunziata and Bumgardner
Argued at Alexandria, Virginia

KEITH D. PARISH
OPINION BY
v. Record No. 0818-97-4 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 17, 1998
MARY BETH SPAULDING

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard B. Potter, Judge
Raymond B. Benzinger (Benzinger & Benzinger,
P.C., on brief), for appellant.

(Mary Beth Spaulding, pro se, on brief).

Keith D. Parish (father) appeals the decision of the circuit

court maintaining custody of Keith D. Parish, Jr. and Samantha N.

Parish (the children) with Mary Beth Spaulding (mother). Father

contends mother is precluded from seeking a modification of the

earlier decree regarding custody and the relocation of the

children on the basis of changed circumstances because she

unilaterally, and contrary to court orders, created the change of

circumstances. We disagree and affirm.

On December 15, 1995, when both mother and father lived in

Virginia, the circuit court entered an order awarding sole

custody of the children to mother and establishing visitation

rights for father. In the summer of 1996, mother submitted

several documents to the court which asked the court to note her

change of address, modify father's visitation rights, and allow

her to move to Indiana. Although the circuit court denied
mother's petitions for procedural reasons and never reached the

merits of the issues, mother moved to Indiana with her husband

and the children. Among numerous other motions, father filed a

motion for emergency change of custody.

I.

Change in Custody

In determining whether a change in custody is warranted, the

trial court applies a two-part test: (1) whether a change of

circumstances has occurred since the most recent custody award;

and (2) whether such a change would be in the best interests of

the child. Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921

(1983). In order "to modify a decree denying a custodial parent

permission to remove the child from the state, 1 a similar

standard must be applied; the court must find (1) a material

change in circumstance since the initial decree; and (2) that

relocation would be in the child's best interests." Bostick v.

Bostick-Bennett, 23 Va. App. 527, 535, 478 S.E.2d 319, 323 (1996)

(footnote added).

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"A court may forbid a custodial parent from removing a child
from the state without the court's permission, or it may permit
the child to be removed from the state." Scinaldi v. Scinaldi, 2
Va. App. 571, 573, 347 S.E.2d 149, 150 (1986) (citing, inter
alia, Carpenter v. Carpenter, 220 Va. 299, 302, 257 S.E.2d 845,
848 (1979)). The trial court addressed this question as one
factor in its determination of the best interests of the
children.

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 A.

Change in Circumstances Created by Voluntary Act

Father argues that, because mother created the change of

circumstances upon which she relies in support of her petition

for modification of visitation and relocation of the children,

the trial court erred in finding such change had occurred. In

addressing father's claim that mother cannot rely on a changed

circumstance which she created, we are guided by the principles

developed in earlier decisions. In Simmons v. Simmons, 1 Va.

App. 358, 362, 339 S.E.2d 198, 200 (1986), we upheld a trial

court's decision to allow a parent to move to Florida following a

determination that the move would be in the best interests of the

child. Although we did not specifically address the changed

circumstances requirement, we approved the court's examination of

the best interests of the child notwithstanding the fact that the

parent voluntarily chose to move. Our decision in Scinaldi v.

Scinaldi, 2 Va. App. 571, 572-73, 347 S.E.2d 149, 150 (1986), as

further clarified in Hughes v. Gentry, 18 Va. App. 318, 322, 443
S.E.2d 448, 451 (1994), supports our conclusion that a change in

the location of the children effected by the petitioning parent

does not bar the jurisdictional finding that a material change of

circumstances has taken place. In Scinaldi, 2 Va. App. at

576-77, 347 S.E.2d at 152, after the custodial parent moved from

Virginia, the non-custodial parent obtained an order directing

her to return the children to Virginia and enjoining her from

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moving the children. We reversed, holding that the trial court's

order was unsupported by the evidence. The "inescapable

inference of Scinaldi is that whenever the evidence suggests

. . . that the relocation of the custodial parent may not be in

the child's best interests, the relocation of the custodial

parent constitutes a material change in circumstances." Hughes,

18 Va. App. at 322, 443 S.E.2d at 451. It follows from these

decisions that the custodial parent's voluntary relocation of the

children does not bar that parent from thereafter seeking

modification of the trial court's order of custody; nor does the

custodial parent's action bar a motion seeking approval of the

relocation retroactively.
Furthermore, in a court's decision as to the propriety of

relocating the children or the modification of custody, "the

welfare of the children is of primary and paramount importance."

Simmons, 1 Va. App. at 361, 339 S.E.2d at 199. If the court

could not retroactively approve a move or order a change in

custody after an unapproved relocation has taken place, having

before it evidence that the relocation of the children or the

modification of custody would be in the best interests of the

children, the court would be required to act contrary to the best

interests of the children. We decline to establish such a rule.

In further support of his argument that mother is barred

from showing "a change of circumstances," father asserts the

doctrine of estoppel. Father did not raise this argument in the

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trial court and is barred from asserting it here. Rule 5A:18.

Even assuming the issue of estoppel is properly before us, the

claim is without merit. Husband acknowledges that estoppel

requires a representation, reliance, a change of position, and

detriment, but the record contains no evidence which proves the

required elements. Accordingly, we find mother's actions do not

act as a bar to establishing a change in circumstances.

B.
Finding of Changed Circumstances

We hold that the trial court's finding of changed

circumstances was not plainly wrong or unsupported by the

evidence. "The trial court's decision, when based upon an ore

tenus hearing, is entitled to great weight and will not be

disturbed unless plainly wrong or without evidence to support

it." Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646,

651 (1986).

"Changed circumstances" is a broad concept and incorporates

a broad range of positive and negative developments in the lives

of the children. Keel, 225 Va. at 611-12, 303 S.E.2d at 921.

The purpose of the changed circumstances requirement is to avoid

the bar on relitigation that would otherwise be imposed by res

judicata. Hiner v. Hadeed, 15 Va. App. 575, 580, 425 S.E.2d 811,

814 (1993) ("In the absence of a material change in circumstance,

reconsideration . . . would be barred by principles of res

judicata."). The circuit court found "significant changes in the

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circumstances since the last order of this Court." This finding

is supported by the evidence, introduced by both parties, that

mother had moved to Indiana. See Hughes, 18 Va. App. at 322, 443

S.E.2d at 451.

C.

Best Interests of the Children

After making the threshold finding of a change of

circumstances with respect to both the custody and relocation

issues, the trial court determined that the best interests of the

children required that they remain in the sole custody of mother.

In support of its finding, the court stated:
1) that she is now and has always been the
primary care giver for the two children; 2)
she offers the most stable home for the two
children and the one that would offer the
best opportunities for the growth and
development of the children; 3) she has a
good relationship with the children, as well,
of course, as the new children by her second
marriage; 4) she does in fact have a
relationship and the children have a
relationship with the new children of the
second marriage; 5) she offers perhaps the
most normal environment in the sense of a
mother and a father being in the same
household, that is, an adult male and female
to raise the children; 6) this offers the
opportunity, as well, to end the
litigation . . . .

The court specifically found that the move to Indiana was in

the best interests of the children. In support of its finding,

the court stated:
First of all, the move to Indiana offered
economic stability in the sense that Ms.
Spaulding found herself in economic distress.
It offered an opportunity to live in Indiana

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 in a home that was rent-free, not unlike the
same situation Mr. Parish lives in here in
Virginia. Number 2, it offers economic
stability, in that [mother] was in fact
unemployed and [mother's] new husband lost
his job in Virginia and needed to move to
find full employment and so moved to Indiana.
It offered some economic stability based on
the fact that [father] in this case was not
paying child support as ordered by the Court.
Number four, in terms of an educational
opportunity, it offered [mother] an
opportunity, together with her new husband,
for additional schooling. Number 5, in terms
of educational opportunities for the
children, the transfer of the children was
made in the summertime so as not to interfere
with the schooling of the children and did
not, in fact, interfere with that schooling.
Number 6, it offered some emotional
stability to the children. Mr. Spaulding was
allowed to return and address the issues of
visitation and child support that he had
outstanding in Indiana. And that offered
some stability to their family environment.

On appeal from an order of child custody, we view the

evidence in the light most favorable to mother, the prevailing

party below. Wilson v. Wilson, 12 Va. App. 1251, 1254, 408

S.E.2d 576, 578 (1991) (citing Simmons, 1 Va. App. at 361, 339

S.E.2d at 199). The parties presented only their own testimony

on the issues; thus, the court's decision was necessarily based

primarily on its evaluation of the parties' credibility. It is

well settled that issues of credibility and the weight of the

evidence are within the unique province of the trier of fact.

This Court will not substitute its judgment for the trial court's

determination unless we find that the testimony relied upon by

the trial court is inherently incredible. Richardson v.

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Richardson, 242 Va. 242, 246, 409 S.E.2d 148, 151 (1991). The

mother's testimony was not inherently incredible and supports the

findings of the court.

Finally, we reject father's argument that, in determining

whether the relocation was in the best interests of the children,

the court erred in considering the best interests of mother

rather than the children. It is true that some of the factors

considered by the court, such as mother's educational

opportunities, relate more to mother's welfare than to the

specific welfare of the children. In Simmons, 1 Va. App. at 362,
339 S.E.2d at 200, however, we cited similar factors, including a

stable home life and solid financial situation, as reflecting on

the children's interest in a "stable and loving environment."

Viewing the evidence in its totality, we find no abuse of

discretion in the court's evaluation of the evidence and its

determination of the best interests of the children.

II.

Enforcement of Orders

Father argues the trial court denied him due process by

failing to enforce the juvenile court's order enjoining mother

from removing the children from the Commonwealth. He further

contends the juvenile and circuit courts' failure to enforce the

order effected an improper modification of the order. We

disagree with both claims.

On December 15, 1995, the circuit court entered an order

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awarding sole custody of the children to mother, establishing

visitation for father, and requiring "any party intending to

change residence giving the other party and the Court at least 30

days' [sic] advance written notice of any intended change of

address, including postal zip code." On June 12, 1996, mother,

the sole custodian of the children, filed a notice of change of

address, although the notice did not list her new address. On

July 2, 1996, mother appeared before the circuit court, asking

the court to modify the visitation order and approve her move to

Indiana. The court ruled that it did not have jurisdiction to

hear mother's petition, in part because an appeal was pending in

this Court. On July 2, mother filed another notice of change of

address, which listed two "probable addresses." Although the

circuit court never ruled that mother could leave the

Commonwealth, she nevertheless moved to Indiana with her husband

and the children. Father filed a series of motions to enforce

the visitation provisions of the December 15, 1995 decree.
Father does not claim that the juvenile and circuit courts

erred in ruling on the merits of his claims, but only that the

courts denied him due process by failing to enforce earlier

orders. Due process requires that, before a court may deprive a

party of a property or liberty interest, the party must receive

notice and the opportunity to be heard. Williams v. Virginia

Elec. & Power Co., 18 Va. App. 569, 576-77 and n.5, 445 S.E.2d

693, 698 and n.5 (1994). Father received both notice of matters

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brought before the trial court and the opportunity to be heard at

length, both on his own requests for relief and those of the

mother. Accordingly, we find that the courts did not deny

father's right to due process.

Furthermore, a court's decision of whether and how to

enforce an order is reviewed only for an abuse of discretion.

Wells v. Wells, 12 Va. App. 31, 36, 401 S.E.2d 893, 894 (1991).

Our review of the record reveals that the courts were responsive

to each of father's requests for relief and that father's claims
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are without merit. Accordingly, we find the courts did not

abuse their discretion by failing to enforce their orders.

Finally, we reject father's argument that a court's failure

to enforce its orders improperly effected a modification of its

order while on appeal. He cites no authority for the espoused

proposition and we find none.
2
On July 19, 1996, father moved for an emergency restraining
order, which was granted by the juvenile court on July 26. On
July 26, 1996, father moved for an order requiring mother to
state the location and phone number of the children; the court
required mother to do so on August 16, 1996. On September 9,
1996, father filed an emergency petition for a change in custody;
the circuit court denied father's petition for change of custody
on the basis that mother was not given proper notice and that the
custody issue was before the Court of Appeals on September 27.
On September 20, 1996, the court issued a Rule to Show Cause for
violation of the December 15, 1995 order. The court subsequently
determined that mother was not in violation of the order and
dismissed the Rule. On October 24, 1996, and November 15, 1996,
father moved for an order requiring cooperation with the
visitation provisions of the December 15, 1995 order; the court
ordered mother to do so on November 27, 1996. On December 18,
1996, father moved for an order to show cause against mother. On
January 14, 1997, the court stated that it would not award any
sanctions against mother.

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 III.

Denial of Motion to Withdraw

After father appealed the child support award entered by the

juvenile court to the circuit court, the circuit court entered an

order requiring the parties to set an early date to address the

modification of the child custody, support, and visitation

issues. Father argues that the trial court erred in denying his

motion to withdraw his appeal regarding child support.
In denying father's motion to withdraw his appeal, the trial

court cited as reasons for its decision, judicial economy,

prejudice to mother, and the parties' nine cases in the circuit

court over the last three years. In a subsequent hearing on the

record, the court explained that the nine circuit court cases

filed by the parties, as well as two appeals to this Court and

numerous juvenile court cases, had separated the issues, and that

"it's time for these matters to really come to a head." On its

own motion, the court consolidated the pending circuit court

cases for a hearing on January 9, 1997.

Father argues that the effect of the court's denial of his

motion to withdraw was that he was allowed neither time to

conduct sufficient discovery nor a continuance to prepare his

case. We find no abuse of discretion in the court's denial of

father's motion to withdraw his appeal and to bring this epic

case to a close. As the court observed, the numerous separate

cases resulted in a fragmentation of the issues and an incomplete

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adjudication of the matters before the court. By denying

father's motion to withdraw his appeal, the court was able to

consolidate the pending cases and adjudicate all pending issues.

Furthermore, father fails to demonstrate how he was prejudiced

by the court's order to proceed with the case in circuit court.

He claims prejudice on the ground that he needed mother's updated

financial information to prepare for trial. The record does not

reveal, however, that father filed a discovery request for

financial information or any other document requesting such

information. Moreover, he fails to demonstrate how the court's

decision impacted or restricted his cross-examination of mother

and fails to cite any other evidence in the record that shows he

could not properly prepare for trial. Finally, he makes no claim

of error regarding the amount of support awarded by the circuit

court.
Accordingly, for the reasons stated in this opinion, we

affirm.

Affirmed.

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