COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
KAREN RYAN
MEMORANDUM OPINION
v. Record No. 0266-97-4 PER CURIAM
AUGUST 5, 1997
DOUGLAS W. RYAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
(Gwena Kay Tibbits, on brief), for appellant.
(Marcella Sadosky Rudden; Hicks & Havrilak,
on brief), for appellee.
Karen Ryan (mother) appeals the decision of the circuit
court denying her motion to modify the children's visitation with
Douglas W. Ryan (father). Mother contends that the trial court
erred by (1) failing to conduct an evidentiary hearing; (2)
failing to find that there was a material change in
circumstances; and (3) considering circumstances which may have
been contemplated at the time of the previous order. 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.
"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
considering a petition to modify visitation, as with a petition
to change custody, a trial court applies a two-part test to
determine "(1) whether there has been a [material] change of
circumstances since the most recent . . . award; and (2) whether
a change . . . would be in the best interests of the child."
Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986).
"'In the absence of a material change in circumstance,
reconsideration . . . would be barred by principles of res
judicata.'" Bostick v. Bostick-Bennett, 23 Va. App. 527, 535,
478 S.E.2d 319, 323 (1996) (citation omitted).
I.
Mother filed her motion on November 22, 1996 seeking a
modification of child support and visitation. Father filed a
motion to dismiss, arguing that mother failed to allege a
material change in circumstances justifying a modification of
visitation. The trial court heard argument on father's motion to
dismiss, then requested that the parties set out their positions
in writing, indicating that it would decide the issue on the
filings. Both parties filed memoranda.
Based upon the facts as alleged by mother, the trial court
found that
[mother] has not satisfied her burden; there
has been no material change in circumstances
which would justify setting for hearing
[mother's] motion. The issues that [mother]
raises were either contemplated by [the
previous judge] in his findings in 1995, or
do not constitute a material change in
circumstances at this point.
The mother, as the moving party, had the burden to clearly
allege a material change in circumstances. See Hughes v. Gentry,
18 Va. App. 318, 326, 443 S.E.2d 448, 453 (1994). In the absence
of those clear allegations, the trial judge had the discretion to
refuse a hearing. The trial judge gave both parties the
opportunity to present their arguments and refutations in
memoranda. In view of the sparse allegations, the trial judge
did not err. Furthermore, the record reflects that the parties
have had a series of visitation disputes. The trial court held a
full evidentiary hearing in November 1995, at which time the
court addressed at length the issues connected with visitation.
The court heard additional evidence concerning visitation at a
show cause hearing in March 1996, addressing specific disputes
which occurred during September and October 1995. We cannot say
the trial court abused its discretion by refusing to conduct an
ore tenus hearing on mother's motion.
II.
Mother sought to modify visitation by having the parties
meet at a "neutral location" when mother picks up the children
following father's visitation; allowing mother to attend the
children's scheduled activities, even if these occur on father's
weekends; and modifying the summer visitation schedule so that
mother could spend more time with the children during their
school vacations. In her memorandum opposing father's motion to
dismiss, mother contended that she was now working full-time, and
thus had less "quality time" with the children; that the children
were in two different schools, with different vacation schedules
and school hours; and that their son was diagnosed with a
learning disability, requiring her additional involvement with
his teachers.
The trial court did not err in concluding that proof of the
changed circumstances as proffered by mother would not warrant a
modification of the father's visitation privileges. Mother has
full custody of the children. The father has limited visitation
rights with his children. The increase in mother's employment
from part-time to full-time does not justify a reduction in
father's visitation.
Similarly, the fact that the children have somewhat
differing school hours does not constitute a material change in
circumstances warranting a change in father's visitation with his
children. The trial judge in 1995 expressly noted that
visitation on every other weekend is to
commence when the children are out of school
on Friday. If the children continue to go to
the present school and they're out at 12:15
then [father] is to go to the school to pick
up the children. If the children in the
future go to a public school and they get out
at 3:00 o'clock, then it will still be that
[father] will go to school and pick up the
children.
The trial court did not err in ruling that the son's change in
schools did not constitute a material change in circumstance
warranting further review. While mother alleged that school
vacations now also differed, she neither substantiated that
allegation nor asserted how the alleged variation affected the
father's visitation schedule.
The son's learning disability is also not a sufficient basis
to modify father's visitation with his son. Mother has custody.
Her contention that her full-time work schedule limits her
ability to fully assist her son was unsubstantiated. Both
parents need to be involved in assisting their son's education.
The mother failed to assert in what manner a modification of
father's visitation schedule would benefit the child.
Although mother characterized as a change of circumstance
the fact that "problems" arise when she goes to father's home to
pick up the children, the record makes clear that this is not a
change since the time of the original decree. The trial court in
1995 specifically directed mother to deal responsibly with her
obligation to handle her part of the transportation.
I believe it's important for [mother] to
participate in the transportation of the
children, because, in the Court's view, the
relationship between the children and their
mother and their father is extremely
important, and if it needs transportation,
then both of the parents should be
participating in the transportation to make
sure that the kids can spend time with both
of their parents.
Friction between mother and father's wife also was addressed by
the court:
You may not like the present Mrs. Ryan, and
you really don't have to have much to do with
her, but you're going to have to interact
with him and, to a lesser extent, interact
with her for as long as those children are
minors. And when the children realize that
you don't want to even talk to the present
Mrs. Ryan, the message that that gives them
is if they want to have any type of a decent
relationship with her it's going to upset or
anger their mother.
Because mother has custody, the modifications she seeks in
visitation would reduce the father's time to visit with his
children. We find no justification in the mother's allegations
that would support the trial court reducing father's time to
visit with the children. Therefore, we find no error in the
trial court's determination that mother's allegations were
insufficient to require an evidentiary hearing.
III.
Mother contends that the trial court erred when it ruled
that the material changes she alleged were contemplated by the
previous order. It is true that orders must be based upon
present circumstances, but visitation orders are by their very
nature prospective, usually setting out for an undesignated
period into the future the time tables under which the parents
will attempt to develop or maintain their bonds with the
children. A trial court is necessarily required to issue such
orders as would promote the best interests of the children and,
where appropriate, facilitate the children's relationships with
both parents.
The February 1995 order was explicit and detailed. In
addition to setting routine and holiday visitation schedules, the
order addressed who would pick up the children from school, who
could attend the children's activities, and where mother would
pick up the children at the conclusion of every other visitation
period. It also explicitly provided that father was allowed to
freely discuss all matters concerning the children with their
teachers, coaches, or doctors. None of the changes alleged by
mother raised circumstances materially different from those in
existence when the visitation order was originally entered or
which could not be resolved under that order. We find no
reversible error in the trial court's findings as to either the
prior or present circumstances.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
