COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
WILLIAM SESSOMS
MEMORANDUM OPINION * BY
v. Record No. 1227-98-2 JUDGE RUDOLPH BUMGARDNER, III
MAY 25, 1999
BARBARA ELIZABETH MYER
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Jay T. Swett, Judge
Annie Lee Jacobs (Tracey C. Hopper; Parker,
McElwain & Jacobs, P.C., on briefs), for
appellant.
Patricia M. Brady for appellee.
William Sessoms appeals a final decree of divorce awarding
Barbara Elizabeth Myer physical custody of their daughter, child
and spousal support, and attorney’s fees. He argues that the
trial court erred (1) in authorizing the wife to petition for a
custody review without needing to prove a change in
circumstances; (2) by ordering visitation not in accordance with
the recommendation of his experts; (3) in failing to impute
income to the wife; (4) in ruling that wife had a need for
support and attorney's fees; and (5) in calculating child and
spousal support. She appeals the decisions (6) directing her to
reside in the Charlottesville-Albemarle area for at least three
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
years and (7) admitting certain expert testimony not revealed
during discovery. We conclude that the trial court erred in
authorizing the wife to petition for review without having to
show a change of circumstances, in limiting the custody order to
three years, and in calculating the support. We conclude the
trial court did not err on the other issues.
The wife left her job in California where she earned
$31,200 as a television production assistant and moved to
Charlottesville where the parties married in 1994. The wife had
various lower paying jobs ranging from temporary secretarial
work to creative writing, but she never worked full-time after
their daughter was born in June 1996. The couple had serious
marital problems before the birth of their daughter, but in
January 1997 without any notice to her husband, the wife filed
for divorce, took their child, and left for Colorado. She had
never lived there, but most of her family was living there. She
resided with her father and was able to get a job from her
sister that allowed her to keep her daughter with her while she
worked.
Both parties wanted custody. The husband stressed that it
was very important that both parents have frequent and regular
contact with their child and that it was in her best interest to
see both parents on a reasonably frequent basis. He wanted to
visit her during the week and to have overnight visitation
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during the week and every other weekend. The wife wanted to
live in Colorado, work, and raise her daughter there.
The wife returned to Virginia for a pendente lite hearing
in February 1997. The trial court awarded the parties joint
legal custody, gave the wife physical custody, but ordered her
to remain in the Charlottesville area. The husband was awarded
visitation for several hours, five days a week and every other
weekend. In August 1997, the court increased husband’s
visitation by several hours each week.
The trial was held January 22, 1998 on all matters of
custody, visitation, child support, spousal support, and
attorney’s fees. The parties settled the equitable distribution
issues. After hearing extensive evidence including five
experts, the trial court awarded physical custody to the wife
provided she remained in the Charlottesville area. It limited
the restriction to three years and ruled that the wife could
petition for a change in the custody order without showing a
material change in circumstances. 1
1
The trial court stated:
that primary physical custody shall be with
the mother, providing she resides in the
Charlottesville/Albemarle area; this
restriction is to be in place for a period
of three years. After that time, if the
parties cannot reach an agreement as to
where Ms. Myer resides, Ms. Myer shall be
able to return to this Court to seek a
review of this Court’s ruling regarding
change of residence without needing to prove
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The husband contends the trial court erred when it allowed
the wife to seek review in three years without having to
establish a material change in circumstances. The wife contends
the trial court erred when it required her to reside in the
Charlottesville area. We affirm the decision of the trial court
awarding physical custody to the mother and restricting her to
the area. However, we conclude that the trial court erred in
limiting the custody order to three years and in authorizing the
wife to petition for modification without showing a change in
circumstances.
Courts are authorized to prohibit custodial parents from
removing a child from the state, see Carpenter v. Carpenter, 220
Va. 299, 302, 257 S.E.2d 845, 848 (1979), or to permit such
removal. See Gray v. Gray, 228 Va. 696, 698-99, 324 S.E.2d 677,
678 (1985). When the trial court bases its decree on the best
interest of the child, it will not be reversed unless plainly
wrong or without evidence to support it. See Scinaldi v.
Scinaldi, 2 Va. App. 571, 573, 347 S.E.2d 149, 150 (1986); Gray,
228 Va. at 698-99, 324 S.E.2d at 678; Carpenter, 220 Va. at 302,
257 S.E.2d at 848.
a material change in circumstances, but
rather, the sole issue shall be what is in
the best interests of the child.
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The trial court found that both parents cared deeply for
the child and that neither parent wanted to keep the child from
the other parent. The trial court found husband’s evidence
regarding the importance of a strong relationship between father
and child during the early years credible and gave it great
weight. Consequently, the court ruled that it was in the
child’s best interest during the early years “to be able to be
with and see her father on a reasonably frequent basis.“
The evidence supported the conclusion of the trial court
that the child’s relationship with the father would not be
maintained at the same level if it permitted the mother to take
her to Colorado. The added difficulty of maintaining a
relationship between the child and the parent “should not be the
sole basis for restricting a custodial parent’s residence except
where the benefits of the relationship cannot be substantially
maintained if the child is moved away.” Scinaldi, 2 Va. App. at
575, 347 S.E.2d at 151. Here, the trial court did not abuse its
discretion because it was in the child’s best interest to order
the mother and child to stay in Virginia.
The trial court stressed that it based its decision on
custody and to restrict the mother to the area “primarily due to
the young age of the child.” While it may be inevitable that
circumstances will change in three years as the child reaches
school age, the court cannot make that determination
prospectively. It must first find a material change of
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circumstances before it modifies a custody decree. See Bostick
v. Bostick-Bennett, 23 Va. App. 527, 536, 478 S.E.2d 319, 323
(1996) (increased certainty regarding custodial parent's
impending move is not a change in circumstances); Turner v.
Turner, 3 Va. App. 31, 36, 348 S.E.2d 21, 23-24 (1986) (the
"paramount concern [is] the best interests of the child at a
given point in time, recognizing that it may become appropriate
to make a change in the future"). A custody decision is res
judicata of the issue unless there is a material change of
circumstances. See Hiner v. Hadeed, 15 Va. App. 575, 580, 425
S.E.2d 811, 814 (1993). We conclude that the trial court erred
by limiting the duration of the custody order, and we reverse
the decision to prospectively limit its restriction on the
wife’s residence to three years.
Similarly, we conclude that the trial court erred when it
relieved the wife of the burden of proving a change in
circumstances when she petitioned for review of the custody
decision. When modifying a decree that denied permission to
remove a child from the state, the trial court applies a
two-part test: a material change in circumstances since the
last custody award, and a determination that relocation is in
the child’s best interest. See Keel v. Keel, 225 Va. 606, 611,
303 S.E.2d 917, 921 (1983); Parish v. Spaulding, 26 Va. App.
566, 573, 496 S.E.2d 91, 94 (1998), aff'd, 257 Va. 357, ___
S.E.2d ___ (1999); Bostick, 23 Va. App. at 535, 478 S.E.2d at
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523. Here, the trial court lacked authority to alter the
two-part Keel test. A petition for modification of a custody
decree must include a showing of a change in circumstances.
The husband next assigns as error the refusal of the trial
court to follow the experts’ recommendation regarding
visitation. "[T]he best interests of the child are paramount"
in determining visitation of a non-custodial parent. Wilson v.
Wilson, 12 Va. App. 1251, 1254, 408 S.E.2d 576, 578 (1991)
(citation omitted). Determination of visitation rights is a
matter of judicial discretion. See Eichelberger v.
Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986).
When the trial court considers all the factors outlined in Code
§ 20-124.3, "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) (quoting Woolley v. Woolley, 3 Va.
App. 337, 345, 349 S.E.2d 422, 426 (1986)). "It is well
established that the trier of fact ascertains [an expert]
witness' credibility, determines the weight to be given their
testimony, and has the discretion to accept or reject any of the
witness' testimony." Street v. Street, 25 Va. App. 380, 387,
488 S.E.2d 665, 668 (1997) (en banc) (citation omitted).
While it may be ideal for a child to have daily contact
with both parents, this is not always practical when the parties
are divorced. The trial court considered all relevant factors,
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carefully weighed the extensive evidence from four experts, and
attempted to establish a stable routine for the child. It gave
the father liberal visitation rights. Though it did not grant
visitation every day, the father received weekend overnight
visitation, frequent visitation during the week, and some
overnight visitation during the week. The trial court acted
within its discretion when it declined to follow the precise
recommendations of the husband’s experts. It was not required
to adopt totally the views of expert witnesses, and the evidence
supported the visitation schedule established by the trial
court.
The husband argues that the trial court erred in refusing
to impute income to the wife when determining both spousal and
child support. Code §§ 20-107.1(1) and 20-108.1 set forth the
factors that the trial court is to consider in making spousal
and child support determinations. Support decisions rest within
the sound discretion of the trial court and will not be reversed
unless plainly wrong or unsupported by the evidence. See
Bennett v. Dep't of Social Servs., Div. of Child Support
Enforcement, 22 Va. App. 684, 691, 472 S.E.2d 668, 672 (1996);
Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876
(1994).
We view the evidence in the light most favorable to the
wife, the prevailing party below. See Cook v. Cook, 18 Va. App.
726, 731, 446 S.E.2d 894, 896 (1994). The evidence established
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that the mother’s last full-time job was in 1994 when she earned
an annual income of $31,200 in California as a television
production assistant. The husband’s vocational expert testified
that the wife could earn $30,000 to $40,000 based on her resume
and the opportunities available in the Charlottesville area.
This expert, however, identified no jobs actually available to
the wife. The wife testified that she unsuccessfully sought
employment upon moving to the area but had only worked
intermittently since then. She testified there were no jobs
available in her field of television production. Except for
minimum-wage jobs, the evidence of job availability and pay was
conflicting. The wife did not feel it practical to earn minimum
wage and pay for day care when she could personally care for the
young child herself. The husband testified that he did not
“particularly like the option of day care . . . .”
The trial court did not abuse its discretion in refusing to
impute income to the wife. See Saleem v. Saleem, 26 Va. App.
384, 494 S.E.2d 883 (1998) (no error in refusing to impute where
custodial parent was asked to resign her prior employment);
Bennett, 22 Va. App. at 691-92, 472 S.E.2d at 672 (no error
where age of child and circumstances did not permit custodial
parent to be gainfully employed); Theismann v. Theismann, 22 Va.
App. 557, 573, 471 S.E.2d 809, 816-17 (1996). Not being
permitted to return to Colorado limited the employment and
earning potential of the wife while the child was very young.
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Both parties emphasized the importance to them of both the
father and mother having close contact during the early
development of their daughter. Given the age of the child, the
wife’s role as a full-time mother before the separation, and the
limitation placed on her so the child could enjoy a substantial
relationship with both parents, the trial court did not abuse
its discretion in refusing to impute income to the wife. See
Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 23 (1993)
(need evidence of recent past earnings). She was entitled to
continue the lifestyle to which she was accustomed during the
marriage. See Srinivasan v. Srinivasan, 10 Va. App. 728, 734,
396 S.E.2d 675, 679 (1990).
The husband next contends that the trial court erred in
awarding the wife spousal support and attorney’s fees and in
ordering him to pay more than his ability to pay. The trial
court ordered the husband to pay $850 in spousal support and
$680 in child support. He contends that the trial court erred
in finding he had the ability to pay. We disagree.
Evidence was presented on all statutory factors, including
the parties’ agreed upon equitable distribution payments and the
duration of the marriage. In addition to his salary of $63,000,
the husband had equity in his home, a retirement plan, and
$14,000 in an IRA account. The wife had spent her IRA and was
$4,500 in debt. The parties were not financially equal. The
wife made a financial and career sacrifice in moving to
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Charlottesville. It was a proper exercise of discretion to
award spousal support and attorney’s fees. The award of spousal
support and attorney’s fees is within the sound discretion of
the trial court and will not be reversed on appeal unless
injustice results. See Brooks v. Brooks, 27 Va. App. 314, 498
S.E.2d 461 (1998); Lightburn v. Lightburn, 22 Va. App. 612, 620,
472 S.E.2d 281, 285 (1996) (wife's sacrifice in moving is
appropriate consideration for spousal support determination).
The wife concedes that the trial court erred in failing to
account for the spousal support award before calculating child
support. See Code § 20-108.2(G)(1); Frazer v. Frazer, 23 Va.
App. 358, 477 S.E.2d 290 (1996). We remand this matter for
reconsideration of the child support award because any deviation
in the combined award is best determined by the trial court.
Finally, the wife contends that the trial court erred in
permitting the husband’s experts to testify because the
substance of their testimony was not disclosed in a timely
fashion, and the bases for their opinions were not fully
disclosed. We disagree.
The husband designated his experts on November 21, 1997,
but he did not provide the details of their testimony or the
bases of their opinions. At the pretrial hearing December 11,
1997, the trial court extended the deadline for completing
discovery to December 31, 1997. On January 5, 1998, the husband
provided the wife a designation of the testimony of two of the
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four experts. The trial court refused to exclude the experts
from testifying because it found the husband had substantially
complied with the discovery order. The trial court did exclude
their testimony concerning facts or opinions not stated in the
designation.
The wife presented no evidence that she made any effort to
depose or investigate the substance of their testimony during
the period of discovery. The trial court had the discretion to
modify the deadline for completing discovery. The fact that the
court sua sponte extended the date for compliance with
discovery, without more, is not an abuse of discretion. Absent
a showing of prejudice, there is no abuse of discretion with
respect to discovery issues. See Rakes v. Fulcher, 210 Va. 542,
546, 172 S.E.2d 751, 755 (1970).
The wife requests that this Court award her attorney’s fees
incurred during the appeal. Both parties appealed from
provisions of the final decree, and both prevailed on certain
issues. The appeals were not frivolous, and we find no other
reasons to justify ordering the husband to pay the wife’s
attorney’s fees incurred for this appeal. See O'Loughlin v.
O'Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).
The motion is denied.
For the foregoing reasons, we reverse the trial court's
order to the extent that it limited the duration of its decree
and relieved the wife of proving a change in circumstance when
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petitioning for a review. We remand for recalculation of the
support award, and we affirm all other rulings.
Affirmed in part, reversed
and remanded in part,
reversed and final judgment
in part.
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