COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
JAMES RICHARD BOYLES
v. Record No. 2050-95-1 MEMORANDUM OPINION *
PER CURIAM
SELINA M. BOYLES APRIL 30, 1996
FROM THE CIRCUIT COURT OF
THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
(James R. Boyles, pro se, on brief).
No brief for appellee.
James R. Boyles (father) appeals the decision of the circuit
court (a) granting the motion of Selina M. Boyles (mother) to
move from the Virginia Beach area to Charlottesville, and (b)
denying father's injunction to bar the move. Father raises the
following issues on appeal:
(1) whether the trial court abused its
discretion by failing to determine
if the proposed move was in the
best interests of the children;
(2) whether the trial court abused its
discretion by failing to apply a
material change in circumstances
test;
(3) whether the trial court abused its
discretion by not allowing father
to present all of his evidence;
(4) whether the trial court abused its
discretion by denying father's
motion to rehear; and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(5) whether the trial court abused its
discretion by modifying the
parties' contract.
Upon reviewing the record and opening brief, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. Rule 5A:27.
The decision of the trial court is presumed to be correct
and father bears the burden to prove by the record that the trial
court erred.
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. It is appropriate that this be the rule
governing our review of appeals because the
trial judge was in a position to see and hear
the witnesses, and to closely examine the
evidence. As such, his findings are entitled
to an appropriate degree of respect.
Simmons v. Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199
(1986). Here, evidence of the proceedings before the trial court
is contained in the written statement of facts, composed of
father's proposed statement and mother's supplementary objections
and additions. We review father's contentions based upon the
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record and the written statement of facts.
Under the terms of the parties' Stipulation and Agreement,
incorporated into the November 9, 1994 court order, mother agreed
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Father's opening brief contains allegations referring to
events which are not part of the record on appeal and thus cannot
be considered by this Court. Rule 5A:7.
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"so long as she has custody . . . [to] live within a reasonable
commuting distance of [father] so as not to cause undue hardship
upon [father], regarding the travel time or expenses necessary to
effect the aforementioned visitation." In the hearing on
mother's motion to move to Charlottesville from the Virginia
Beach area, the trial court noted that mother's relocation was
barred under the terms of the Agreement. The court then required
mother to present evidence supporting the move. Mother testified
that she was moving to an area where she had siblings and family
support. Mother presented evidence showing that father continued
to contact and harass her, despite previous court orders
requiring no contact. Mother also presented evidence that
father's derogatory comments to the children about mother were
found to constitute mental child abuse by the Virginia Beach
Department of Social Services. The trial court granted mother's
motion.
Best Interests of Children
Father contends the trial court abused its discretion by
allowing mother's relocation with the children without
considering whether the move was in the best interests of the
children. "It is well settled in Virginia that the best
interests of the children controls the issue of a change of
custody or the issue of a custodial parent moving the children to
another state." Simmons, 1 Va. App. at 362, 339 S.E.2d at 200.
Although the move in this instance was intrastate, the concerns
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raised by father were identical to those raised in an interstate
context.
The court's order contains no express recitation that the
move was in the best interests of the children. However, the
record indicates that there was credible evidence from which the
trial court could conclude that mother's move did promote the
children's best interests. Father's visitation rights had
previously been limited. By order dated May 19, 1995, the trial
court restored father's visitation rights, subject to the
requirement that father's mother or sister supervise visitation
at all times. Both parties were enjoined from "subjecting the
children to derogatory remarks concerning the parties or other
family members; . . . and from questioning the children regarding
the activities of either parent." The record supports the
conclusion that father harassed mother and that his derisive
comments about her to the children rose to the level of child
abuse. Mother's motion indicated that father's actions had made
it "impossible for her to remain in this geographic area and live
her life with any modicum of peace and privacy." Cards and
letters introduced by mother at the hearing demonstrated father's
continued contacts with mother in contravention of previous court
orders.
The court required mother to drive the children to Norfolk
every other weekend in order to facilitate father's regular
visitation. Father was required to return the children to
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Charlottesville on Sunday nights. This arrangement imposed
additional travel time and accompanying expense on both parties,
although the visitation schedule was left substantially
unchanged. While father alleges that he will lose over one
hundred days of visitation annually, the record indicates his
visitation rights had been curtailed previously due to his
harassment of mother and his inclusion of the children in that
harassment.
[Q]uestions 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.
Id. at 364, 339 S.E.2d at 201-02. While this move does not take
the children from father's home state, the trial court was faced
with a similar balancing of concerns. Credible evidence supports
the conclusion that mother's relocation would separate the
parents without harming father's relationship with the children
and that the result would promote the children's best interests.
Therefore, we do not find an abuse of discretion on the part of
the trial court.
Material Change in Circumstances
Father alleges that the trial court failed to apply a
material change in circumstances test before allowing mother to
move. "[W]henever the evidence suggests . . . that the
relocation of the custodial parent may not be in the child's best
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interests, the relocation of the custodial parent constitutes a
material change of circumstances." Hughes v. Gentry, 18 Va. App.
318, 322, 443 S.E.2d 448, 451 (1994). A material change in
circumstances may warrant a reexamination of current custody or
support arrangements. Id.
The evidence indicated that mother's relocation was in the
best interests of the children. Because mother was the custodial
parent and because the court determined that the move was in the
children's best interests, we find no error in the failure of the
trial court to specifically articulate whether the relocation
constituted a material change of circumstances warranting a
reexamination of custody.
Presentation of Evidence
Father contends that he was not allowed to present all his
evidence at the August 4, 1995 hearing. The written statement of
facts does not support father's contention. Moreover, the
admission of evidence is a matter committed to the discretion of
the trial court and the court's decision will not be reversed in
the absence of an abuse of its discretion. Logan v. Fairfax
County Dep't of Human Dev., 13 Va. App. 123, 132, 409 S.E.2d 460,
465 (1991).
Similarly, father contends the trial court abused its
discretion by refusing to hear evidence in support of his August
22, 1995 motion to rehear. "The decision whether to grant or
deny a rehearing is within the trial court's sound judicial
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discretion." Hughes, 18 Va. App. at 326, 443 S.E.2d at 453. We
find no evidence of an abuse of discretion, and thus will defer
to the trial court's decision because it ruled "with the benefit
of the credibility determinations made during the prior ore tenus
hearing." Id.
Modification of Contract
Father's last argument is that the trial court's order
allowing mother to move violated Virginia law because it was
contrary to the terms of the parties' Stipulation and Agreement.
The agreement was incorporated into the court's order. It
therefore was modifiable by order of the court. Code § 20-109.1.
Moreover, the court retains authority over matters pertaining to
the custody and visitation of children. Code § 20-108. See
Kelley v. Kelley, 248 Va. 295, 298, 440 S.E.2d 55, 56 (1994). As
such, the agreement did not bar the trial court from entering an
order approving mother's relocation.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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