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COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Bumgardner
MARIA ISABELLA TURPIN
MEMORANDUM OPINION *
APRIL 24, 2012
Record No. 2129-11-4
BILLY KEITH McGOWAN
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
J. Martin Bass, Judge
(Martin R. Mann, on brief), for appellant.
(William M. Sokol; Sokol & Jones, on brief), for appellee.
Maria Isabella Turpin, mother, appeals the decision of the trial court awarding a change in
physical custody of their son to Billy Keith McGowan, father. Mother contends the trial court erred
in finding a change in circumstances and that the change in physical custody was in the best interest
of the child. Additionally, mother argues the trial court erred by excluding her experts’ testimony
and admitting the testimony of the guardian ad litem’s expert. Finally, mother appeals the award of
fees and costs to the guardian ad litem. Upon reviewing the record and briefs, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule
On September 26, 2006, the Stafford County Juvenile and Domestic Relations District Court
entered an order awarding primary physical custody of the child to mother. The district court then
entered an agreed order on August 21, 2007, again awarding joint legal custody, with primary
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
physical custody remaining with mother, and directing preferences for care and visitation schedules,
including that additional visitation was encouraged and not to be refused but for good cause. On
May 20, 2008, the district court entered another order modifying the previous order with respect to
vacation, medical payments, and travel. On June 7, 2010, upon father’s motion to amend custody
and enforce visitation, the district court granted father’s motion and awarded him primary physical
custody and continued joint legal custody. Mother appealed to the circuit court and, upon a trial de
novo, the circuit court awarded primary physical custody to father and continued joint legal custody.
It is from this order mother appeals.
Change in Custody
Mother contends the trial court erred by finding a material change in circumstances. In
support of this contention she contests several adverse findings made by the trial court regarding
(1) her relocation within Virginia; (2) her relocation and actions thwarting the father’s relationship;
(3) emotional, physical, or educational changes in the child; (4) financial, personal, and health
changes of the parties; (5) the safety of father’s home; and (6) improper weight assigned to the
The test to be applied in analyzing whether a change in custody is appropriate has two
prongs: “first, has there been a change in circumstances since the most recent custody award;
second, would a change in custody be in the best interests of the children.” Keel v. Keel, 225 Va.
606, 611, 303 S.E.2d 917, 921 (1983) (citation omitted).
The “change in circumstances” referred to in the first prong of the
test is not limited to whether negative events have arisen at the home
of the custodial parent. It is broad enough to include changes
involving the children themselves such as their maturity, their special
educational needs, and any of a myriad of changes that might exist as
to them. It is also broad enough to include positive changes in the
circumstances of the noncustodial parent such as remarriage and the
creation of a stable home environment, increased ability to provide
emotional and financial support for the children, and other such
Id. at 612, 303 S.E.2d at 921.
“On appeal, we review the evidence in the light most favorable to . . . the prevailing party
below.” Surles v. Mayer, 48 Va. App. 146, 156, 628 S.E.2d 563, 567 (2006) (citation omitted).
“[W]hen a court hears evidence at an ore tenus hearing, its decision
is entitled to great weight and will not be disturbed on appeal unless
plainly wrong or without evidence to support it.” Moreover, the
credibility of the witnesses and the weight to be accorded their
testimony is a matter exclusively within the province of the trier of
Yopp v. Hodges, 43 Va. App. 427, 439-40, 598 S.E.2d 760, 766 (2004) (citations omitted).
Viewed in this light, the evidence showed that mother moved from her residence in Stafford
County to Sterling, Virginia, and then settled in Vienna, Virginia. The trial court found mother
made the decision to move “unilaterally,” without consulting the court or father, and without
considering the impact the move may have on the child and his relationships. Father testified the
move from Stafford to Northern Virginia was the greatest change in circumstance impacting his
relationship with the child. Father stated the distance made it difficult to see his son on additional
occasions beyond regular visitation. It is well settled that the “‘relocation of [a] custodial parent
constitutes a material change of circumstances,’ thereby vesting the trial court with jurisdiction to
modify a prior custody decree.” Surles, 48 Va. App. at 174, 628 S.E.2d at 576 (citation omitted).
Thus, the evidence supports the trial court’s finding of a material change in circumstance based on
Further, the record supports the other grounds cited for a change in circumstances.
Witnesses who observed the child stated he appeared to be intelligent, creative, fun, and
adventurous when in his father’s care. However, in his mother’s care, he was viewed as
disengaged, and “not an easy, outgoing child.” Mother felt it necessary to obtain counseling for the
child and herself. Mother’s attitude toward father amply demonstrated her desire to prevent any
additional visitation beyond what was outlined in the custody award. The occasion she drove
through a snow storm to pick up the child was sufficient evidence to demonstrate that under no
circumstances would she give father additional time with the child. Mother’s actions and attitude
clearly interfered with the relationship between father and son and showed she was not committed
to fostering the father-son relationship. Although hazards were noted on father’s property, the trial
court reasonably found that the rural physical features of the home were not safety concerns.
All of the trial court’s findings are supported by the record and are not plainly wrong. The
weight the trial court accorded the witnesses was squarely within its province. Accordingly, the
trial court did not err in finding material changes in circumstances in support of its judgment to
award father primary physical custody.
Best Interests of the Child
Mother argues the trial court erred by finding a change in custody was in the best interests of
the child. In support of this argument, she challenges several adverse findings made by the trial
court regarding: (1) failure to properly assign weight to the experts’ testimony; (2) father’s ability to
better support the relationship with the other parent; (3) assigning no preference to mother as
primary caretaker; (4) final decisions on medical care should be made by father; and (5) refusal to
allow change in terms of visitation.
Of the two-prong test used to determine whether a material change in circumstances
warrants a change in custody,
[t]he second prong of the test is in accord with the countless cases in
which we have stated that the best interests of the children are
paramount. . . . [T]here can be no change in custody unless such a
change will be in the best interests of the children. The second
prong, then, is clearly the most important part of the two-part test.
Keel, 225 Va. at 612, 303 S.E.2d at 921. The trial court in its letter ruling clearly outlined its
emphasis on this second prong, citing the factors in Code §§ 20-124.2 and 20-124.3, and noting its
reliance thereon. None of the factors listed within these code sections, or any other guiding
principles, require the trial court to assign preference to the primary caretaker per se. Further, it was
within the trial court’s province to assess credibility and assign weight to all the testimony
presented. Viewing the evidence in the light most favorable to father, as we must, the record
supports the trial court’s conclusion that father was more capable and willing to work with mother,
and to support the relationship between mother and child. Notably, mother felt father should have
no custody at all and even wished father was dead, by one account. The record also demonstrated a
concern regarding mother’s regulation of their son’s medications and communication with father
about necessary medication. Thus, the record supports the trial court’s ruling that it was in the best
interests of the child for father to control medical, and counseling, decisions. The trial court
reasonably resolved all conflicts in the testimony in favor of father. The record supports the trial
court’s findings, and they are not plainly wrong. Accordingly, the trial court did not err by finding
the change in custody was in the best interests of the child.
Mother maintains the trial court abused its discretion in excluding the testimony of one of
her expert witnesses and allowing testimony of a previously unidentified expert witness called by
the guardian ad litem. “‘The admission of expert testimony is committed to the sound discretion of
the trial judge, and we will reverse a trial court’s decision only where that court has abused its
discretion.’” Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 166, 458 S.E.2d 462,
465 (1995) (citation omitted).
“Given the ‘broad discretion’ of a trial judge over evidentiary
matters, we apply a deferential abuse-of-discretion standard of
appellate review.” The abuse-of-discretion standard, “if nothing else,
means that the trial judge’s ‘ruling will not be reversed simply
because an appellate court disagrees.’” “Only when reasonable
jurists could not differ can we say an abuse of discretion has
Tynes v. Commonwealth, 49 Va. App. 17, 21, 635 S.E.2d 688, 689 (2006) (citations omitted).
The trial court allowed mother to make a full proffer, in open court, about what her expert
witness would testify. Thus, the trial court had the proffered evidence before it. What weight the
trial court assigned to the evidence was within its province. Similarly, the admission of the guardian
ad litem’s expert testimony was within the trial court’s discretion and nothing in the record suggests
the trial court abused its discretion in allowing the witness to testify. Accordingly the trial court did
not abuse its discretion and, thus, did not err by allowing the guardian ad litem’s expert to testify
and refusing to allow mother’s expert witness to testify.
Guardian Ad Litem’s Fees and Costs
Mother contends the trial court erred in awarding fees and costs to the guardian ad litem
because the parties had no opportunity to review or argue the reasonableness of the amount claimed.
It is within “the discretionary power of the court, in an appropriate case, to appoint a guardian ad
litem to protect the best interests of a child in a contested custody hearing.” Verrocchio v.
Verrocchio, 16 Va. App. 314, 321, 429 S.E.2d 482, 486 (1993) (citation omitted).
“Indivisible from that power of appointment is the associated power
equitably to apportion the fees and expenses of the guardian ad litem
as costs to the parties. Code §§ 20-79(b) and 20-99(5) provide the
statutory basis for the award of such costs as equity and justice may
require. Such an award is considered remedial and is within the
recognized “discretion of a court of equity over the subject of costs.”
Code § 14.1-177 [now Code § 17.1-600].
Id. at 322, 429 S.E.2d at 487. Although mother stated her objection in a document of objections to
the final order, she did not argue or obtain a ruling from the trial court on this issue.
Because [mother] did not obtain a ruling from the trial court
on [her] . . . motion, “there is no ruling for [this Court] to review” on
appeal, and [her] argument is waived under Rule 5A:18. The main
purpose of requiring timely specific objections is to afford the trial
court an opportunity to rule intelligently on the issues presented, thus
avoiding unnecessary appeals and reversals.
Although Rule 5A:18 contains exceptions for good cause or
to meet the ends of justice, appellant does not argue these exceptions
and we will not invoke them sua sponte.
Williams v. Commonwealth, 57 Va. App. 341, 347, 702 S.E.2d 260, 263 (2010). Moreover, the
record does not reflect any reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18, since guardian ad litem fees may properly be assigned as costs to the parties.
Accordingly, the decision of the trial court is summarily affirmed.