COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
MARIA J. LANG
MEMORANDUM OPINION *
v. Record No. 2193-96-4 PER CURIAM
APRIL 8, 1997
MICHAEL A. LANG
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
William G. Plummer, Judge Designate
(Drake T. Brodin, on brief), for appellant.
(Dana James Carlson; Catherine M. Bowers;
Duvall, Harrigan, Hale & Hassan, on brief),
for appellee.
Maria J. Lang appeals the decision of the circuit court
denying her motion to allow her to move to Spain with the
parties' three minor children. The father, Michael A. Lang,
opposed the motion. Mother contends that the trial court erred
by (1) failing to consider the precedent of Simmons v. Simmons, 1
Va. App. 358, 339 S.E.2d 198 (1986), and Scinaldi v. Scinaldi, 2
Va. App. 571, 347 S.E.2d 149 (1986), and (2) failing to properly
weigh the evidence. 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.
Rule 5A:27.
"On appeal, we review the evidence in the light most
favorable to the prevailing party below. 'The trial court's
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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.'" Hughes v. Gentry, 18 Va. App.
318, 321-22, 443 S.E.2d 448, 451 (1994) (citations omitted). "It
is well settled in Virginia that the best interests of the
children controls . . . the issue of a custodial parent moving
the children to another state." Simmons, 1 Va. App. at 362, 339
S.E.2d at 200.
As the party seeking to modify the existing visitation
arrangement, mother bore the burden to prove the modification was
in the children's best interests. Mother argued that, due to
unforeseen circumstances, her financial situation had worsened.
She also contended that a move to Spain would allow the children
to reunite with their maternal grandmother, to know extended
family members of both parents, and to benefit from a
multicultural and bilingual experience. Mother acknowledged that
father's visitation would decrease but argued that the children
could still maintain a close relationship with father.
Father argued that the children's lives would be disrupted
by the move and that he would be unable to maintain his close
beneficial relationship with them.
The trial judge ruled that the proposed move would be "a
major disruption" in the children's lives. The trial judge also
found the evidence of the claimed benefits to be insufficient,
particularly as to the educational opportunities available for
2
the children. The trial judge further found as follows:
[The father] has had a very loving and very
constructive relationship with his children
which has continued week to week. I mean,
every week there is some influence of the
father on the children and guidance given to
the children when he's not traveling. I
believe that that relationship with their
father continuing in that intense manner is
much more important than developing a
relationship with a whole extended family of
the mother in Spain who these children don't
really know.
In addition, the evidence proved that mother had no exigency
requiring her to move and that she would not move to Spain
without the children. Upon that evidence, the trial judge found
that the denial of her motion "means that the children will have
the continuing benefit of the love and care of both parents,
which I think is paramount in their development and in their
favor."
Mother contends that the trial judge failed to consider
Simmons and Scinaldi. Although those cases are distinguishable,
we find no evidence that the trial judge failed to consider the
pertinent factors discussed in those cases. This Court in
Simmons noted the following:
The relationship between parent and a
3
developing child, no matter how close,
affectionate or demonstrative, naturally
suffers as the distance between the two
increases. As such, questions of custody and
removal from the noncustodial parent's state
of residency involve a balancing of
interests. More often than not there are
advantages and detriments on both sides of
the issue. A trial court's role is to weigh
those concerns and conscientiously seek the
solution that serves the best interests of
the children.
1 Va. App. at 364, 339 S.E.2d at 201-02. Furthermore, in
Scinaldi, this Court noted that there was no evidence the
relationship with the noncustodial parent could not be maintained
despite the move. 2 Va. App. at 575, 347 S.E.2d at 151.
In those cases, the moves were from Virginia to Florida and
New York, respectively. In this instance, the proposed move was
to Spain. The evidence in this case proved that both parties had
played an active role in the children's lives and both were found
to be good parents. Mother's proposed move would prohibit father
from continuing his active role in the children's lives and would
reduce his visits and contacts with the children in exchange for
benefits found by the court to be speculative. See Carpenter v.
Carpenter, 220 Va. 299, 302, 257 S.E.2d 845, 847-48 (1979).
The record demonstrates that the trial judge considered the
evidence as it related to the children's best interests. See
Code § 20-124.3. The trial judge's decree "determining questions
of fact on conflicting evidence ore tenus has the weight of a
jury verdict, and will be permitted to stand unless plainly wrong
or without evidence to support it." Carpenter, 220 Va. at 302,
4
257 S.E.2d at 848. The decision is supported by evidence and is
not plainly wrong.
Accordingly, the trial judge's decision is summarily
affirmed.
Affirmed.
5
Maria J. Lang v. Michael A. Lang
Combined Opinion