COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
ELTON LEE MILLER, JR.
MEMORANDUM OPINION *
v. Record No. 2502-98-2 PER CURIAM
JUNE 15, 1999
DAPHYNE LYNN MILLER
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Richard J. Jamborsky, Judge Pro Tempore
(Gary V. Davis, on brief), for appellant.
(Arden Brannan Schell; Weiner, Weiner &
Weiner, on brief), for appellee.
Elton Lee Miller, Jr., appeals the decision of the circuit
court denying his motion for a change of custody. Father contends
that because Daphyne Lynn Miller (mother) lives with Victor
Malcolm, a man to whom she is not married, father should have
custody of the parties' two children. Specifically, father
contends that the trial court erred by (1) failing to consider the
factors set out in Brown v. Brown, 218 Va. 196, 237 S.E.2d 89
(1977); (2) considering a statement made by Dr. Phyllis Daen in
the home study without documentation as to Dr. Daen's expertise or
the basis of her opinion; (3) finding that the children developed
nicely while residing with mother; (4) finding that father did not
object to mother's relationship with Malcolm; and (5) failing to
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
articulate in its opinion how the statutory factors set out in
Code § 20-124.3 applied to the facts of this case. Upon reviewing
the record and briefs of the parties, we conclude that this appeal
is without merit. Accordingly, we summarily affirm the decision
of the trial court. See Rule 5A:27.
"In matters concerning custody and visitation, the welfare
and best interests of the child are the 'primary, paramount, and
controlling considerations.'" Kogon v. Ulerick, 12 Va. App.
595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). In
assessing whether a change in custody is warranted, a trial
court applies a two-pronged test: "(1) whether there has been a
change of circumstances since the most recent custody award; and
(2) whether such a change would be in the best interests of the
child." Hughes v. Gentry, 18 Va. App. 318, 321, 443 S.E.2d 448,
450 (1994) (citing Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d
917, 921 (1983)). As the party seeking a modification of the
child custody order, father bore "'the burden of proving, by a
preponderance of the evidence, a material change in
circumstances justifying a modification of the decree.'" Ohlen
v. Shively, 16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993)
(citation omitted). The trial court's determination of whether
a change of circumstances exists and its evaluation of the best
interests of the child will not be disturbed on appeal if the
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court's findings are supported by credible evidence. See
Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986).
Issues One and Three
Father contends that the trial court erred when it did not
find that the factors set out in Brown, 218 Va. 196, 237 S.E.2d
89, required a change of custody to him. We find no error.
In Brown, the Supreme Court of Virginia stated the
following:
The moral climate in which children are to
be raised is an important consideration for
the court in determining custody, and
adultery is a reflection of a mother's moral
values. An illicit relationship to which
minor children are exposed cannot be
condoned. Such a relationship must
necessarily be given the most careful
consideration in a custody proceeding.
Id. at 199, 237 S.E.2d at 91. However, Brown "did not establish
a per se rule" that a parent's cohabitation outside of marriage
precludes an award of custody. Sutherland v. Sutherland, 14 Va.
App. 42, 43, 414 S.E.2d 617, 618 (1992). "Brown reminds us that
in all custody cases the controlling consideration is always the
child's welfare and, in determining the best interest of the
child, the trial court must consider all the facts." Id. at
43-44, 414 S.E.2d at 618.
The evidence demonstrated that mother and Malcolm plan to
marry upon mother's divorce from Paul Russell. Mother testified
that she kept father fully informed and that her "first
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consideration was those boys and the surroundings in which they
were growing up in." Mother also testified that she and father
agreed that the boys would live with him until the end of the
school year, but that father told her the week after she closed
on her new house that he wanted custody.
As noted by the trial court, the situation here differed
significantly from the facts of Brown. In Brown, the evidence
indicated that the mother's ongoing relationship had a negative
effect on her young children. See Brown, 218 Va. at 200, 237
S.E.2d at 92. No similar evidence was presented in this case.
Whereas the Court in Brown found the mother to be unfit, the
trial court here noted that father "voices no Brown v. Brown
concerns" as the parties admitted that both parents were fit and
competent. While the trial court considered the fact that
mother lived with Malcolm, the trial court noted that in this
instance it was "inappropriate" to place much weight on those
concerns as "[b]oth parents have had live-in relationships prior
to marriage," a reference to the fact that the parties lived
together prior to their own marriage.
As the party seeking to change custody, father bore the
burden to prove a material change in circumstances and that the
change warranted the transfer of custody to him. Therefore,
there is no merit in father's contention that mother should have
been required to prove that the relocation to North Carolina
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would be beneficial to the children. See Keel, 225 Va. at 611,
303 S.E.2d at 921.
The trial court's findings are supported by the evidence.
We find no error in the trial court's analysis of this matter
under the standards set out in Brown.
Issue Two
Father contends that the trial court erred by considering
the statement reported by Dr. Phyllis Daen and included in the
home study that the boys wanted to stay in mother's custody. We
find father's contention to be without merit.
The parties stipulated to the admission of the home study.
Based upon consideration of the home study and other evidence,
the trial court made its decision. Other witnesses, including
father, testified that the boys indicated that they wanted to
return to mother's custody. We find no error in the trial
court's reliance on the stipulated home study report and the
information contained therein.
Issue Four
Father contends that the trial court erred when it found
that he did not object to mother's relationship with Malcolm.
Mother testified that she kept father fully informed concerning
her move to North Carolina and that she assured father "from the
beginning that I would make those boys very accessible to him.
He's their father." Mother also testified that father never
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objected to her move or to her relationship with Malcolm.
Father admitted that he did not object when mother relocated to
North Carolina with Malcolm and that he did not tell her that he
wanted to change their arrangement until he filed the motion to
change custody in March 1998. Father also admitted that the
boys believed "the entire time" that they would be returning to
their mother in North Carolina at the end of the school year.
Whether father initially objected was a factual question to
be determined by the trial court based upon the testimony of the
witnesses. "The credibility of the witnesses and the weight
accorded the evidence are matters solely for the fact finder who
has the opportunity to see and hear that evidence as it is
presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455
S.E.2d 730, 732 (1995). We will not reverse the trial court's
factual finding, which was based upon evidence received ore
tenus.
Issue Five
Finally, father contends that the trial court failed to
sufficiently articulate how it considered the statutory factors
set out in Code § 20-124.3 when reaching its custody decision.
Father concedes that the trial court is not required to quantify
the weight given to any particular factor.
The trial court's opinion letter demonstrates that the
trial court considered the necessary factors. The trial court
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noted that it "carefully considered those provisions of the
Virginia Code which are to be considered in custody decisions."
While the trial court did not specifically cite the provisions
of Code § 20-124.3, it incorporated specific statutory factors
into its discussion of the case, noting that the boys "developed
nicely and performed well" while mother was the primary care
giver; that the boys expressed the desire to return to mother's
care; that both parents were fit and competent; and that both
parents were willing to promote "ample and frequent contact"
with the non-custodial parent. The trial court found that the
parties agreed that the boys would return to mother's custody at
the completion of the 1997-98 school year.
The trial court expressly found that "the boys' best
interests will be served if their mother serves as primary
physical custodian." The record proves that the trial court
considered the statutory factors. Its decision is supported by
the evidence. Therefore, we find no grounds to reverse the
trial court's custody determination.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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