COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
KAREN RENEE TUCKER
MEMORANDUM OPINION *
v. Record No. 2014-97-3 PER CURIAM
MARCH 24, 1998
JAMES CARL TUCKER
FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
Duncan M. Byrd, Jr., Judge
(M. Teresa Harris, on brief), for appellant.
Appellant submitting on brief.
(Laura L. Dascher; Jeanne M. Hepler; Pasco &
Dascher, on brief), for appellee. Appellee
submitting on brief.
Karen Renee Tucker (mother) appeals the decision of the
circuit court awarding custody of the parties' son to James Carl
Tucker (father). Mother contends that the trial court erred by
(1) exercising jurisdiction after the matter had been transferred
to the juvenile and domestic relations district court; and (2)
awarding custody to father. We disagree and affirm the decision
of the trial court.
Jurisdiction
Mother contends that the circuit court lacked jurisdiction
to hear father's motion for custody. We disagree. In Crabtree
v. Crabtree, 17 Va. App. 81, 84, 435 S.E.2d 883, 886 (1993), we
held that the transfer of "matters pertaining to support . . .
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and custody" to a juvenile and domestic relations district court
pursuant to Code § 20-79(c) does not divest the circuit court of
its continuing jurisdiction to consider those issues. Under Code
§ 20-108,
a circuit court, after entry of a final
decree of divorce, has continuing
jurisdiction to change or modify its decree
as to matters affecting custody, support, and
visitation of minor children. Thus, although
a final divorce decree had been entered, when
the case was reinstated on the docket of the
circuit court, the case was "pending" for
consideration of those matters over which the
circuit court had continuing jurisdiction.
Crabtree, 17 Va. App. at 85, 435 S.E.2d at 886.
In January 1996, the juvenile and domestic relations
district court entered a consent decree awarding the parties
joint custody. Father filed his bill of complaint for divorce in
the circuit court in February 1996. The circuit court entered
the final decree on April 12, 1996 and remanded "all future
matters regarding child custody, visitation and support" to the
juvenile and domestic relations district court. In April 1997,
father filed a motion to reinstate the matter and to determine
custody. Upon the filing of father's motion, the circuit court
had authority to reinstate the case and to consider father's
custody motion.
Custody
"In matters concerning custody and visitation, the welfare
and best interests of the child are the 'primary, paramount, and
controlling consideration[s].'" Kogon v. Ulerick, 12 Va. App.
2
595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). The
trial court is vested with broad discretion to make the decisions
necessary to safeguard and promote the child's best interests,
and its decision will not be set aside unless plainly wrong or
without evidence to support it. See Farley v. Farley, 9 Va. App.
326, 327-28, 387 S.E.2d 794, 795 (1990). The parties conceded
that there was a material change in circumstances. Therefore,
the trial court was required to determine "whether a change in
custody would be in the best interests of the child." Visikides
v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986).
Because the child was beginning school, the trial court
noted that it was essential that one parent have primary physical
custody. The court found that father lived with his parents,
whose home had been the child's primary residence since birth;
that the preponderance of the evidence indicated that the child
had spent more time with father than with mother since September
1996; and that the child's current need for stability would best
be served by awarding primary physical custody to father. The
court's decision was based upon the child's best interests and
was supported by the evidence. Therefore, we find no indication
that the trial court abused its discretion.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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Benton, J., dissenting.
For the reasons stated in my dissent in Crabtree v.
Crabtree, 17 Va. App. 81, 89-92, 435 S.E.2d 883, 888-91 (1993)
(Benton, J., dissenting), I do not agree with the majority's
conclusion that the circuit court had jurisdiction to consider
the father's motion. I would hold that the circuit court judge
exceeded his power when he reinstated the case that had been
transferred to the juvenile and domestic relations district court
more than twenty-one days prior to the reinstatement order.
Because I would hold that the circuit court lacked jurisdiction,
I would not reach the merits of the mother's additional question.
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