COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

SARAH L. HUMPHRIES 

 MEMORANDUM OPINION*

v. Record No. 0775-98-2 PER CURIAM 

 DECEMBER 8, 1998 

CHARLES M. DAVIS, II 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 (T. Michael Blanks, Jr.; Barnes & Batzli, on 

brief), for appellant. 

 (J. Randolph Smith; Gail H. Miller; Smith & 

Miller, on brief), for appellee. 

 Sarah L. Humphries (mother) appeals the decision of the 

circuit court finding that she failed to prove that there was a 

material change in circumstances since the last custody 

determination warranting a modification of custody. Charles M. 

Davis, II (father) was awarded physical custody of the parties' 

child by consent order entered September 8, 1995. On appeal, 

mother contends that the trial court erred in (1) failing to find 

a material change in circumstances; (2) applying the factors set 

out in Code § 20-124.3 to the evidence; (3) applying the 

statutory factors and the evidence to its finding of the best 

interests of the child; and (4) violating the mandate of Code 

§ 20-124.2(B) because the evidence showed that awarding physical 

custody to mother would assure both parents frequent and 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
- 2 - 

continuing contact with the child. 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. See Rule 5A:27. 

 Rule 5A:18 bars consideration on appeal of an argument which 

was not presented to the trial court. See Jacques v. 

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991). 

The order from which this appeal is taken was endorsed by 

mother's counsel with the exception "Seen and objected to on the 

basis there has been a material change in circumstances which 

warrants a modification of custody." Mother's counsel raised the 

essence of her issue four in summary argument before the trial 

court. We cannot say from our review of the record on appeal 

that mother raised either issue two or three with specificity 

before the trial court. See Rule 5A:18. However, our resolution 

of the threshold question set out as mother's first issue makes a 

consideration of issues two and three moot. 

 As the party seeking to change custody, mother bore the 

burden to prove "(1) whether there has been a change of 

circumstances since the most recent custody award; and (2) 

whether such a change would be in the best interests of the 

child." Hughes v. Gentry, 18 Va. App. 318, 321, 443 S.E.2d 448, 

450-51 (1994) (citing Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 

917, 921 (1983)). In order to allow a change of custody, the 

change in circumstances must be material. See Kaplan v. Kaplan, 
- 3 - 

21 Va. App. 542, 548, 466 S.E.2d 111, 114 (1996). A decision on 

whether to modify a child custody order is committed to the sound 

discretion of the trial court. See Wilson v. Wilson, 18 Va. App. 

193, 195, 442 S.E.2d 694, 696 (1994). The trial court's 

determination of whether a change of circumstances exists and its 

evaluation of the best interests of the child will not be 

disturbed on appeal if the court's findings are supported by 

credible evidence. See Walker v. Fagg, 11 Va. App. 581, 586, 400 

S.E.2d 208, 211 (1991). 

 In support of her motion to modify physical custody, mother 

alleged three specific changes that warranted a review of 

custody: (1) that her changed work schedule now allowed her to 

work at home and to be available to care for the parties' child; 

(2) that mother's marriage was even more established than at the 

time of the prior custody hearing; and (3) that father's changed 

residence was not as favorable to the child. The evidence was 

submitted by deposition testimony, with a brief hearing before 

the trial court. The trial court found that mother failed to 

prove a material change in circumstances warranting a change in 

custody. Credible evidence supports that finding. 

 Of the changes in circumstances raised by mother to warrant 

a modification of custody, the one on which the most emphasis was 

placed was mother's changed work schedule. At the time of the 

prior hearing, mother was working out of the home on three 

twelve-hour shifts. Mother's current work schedule is 10:00 a.m. 
- 4 - 

until 2:30 p.m., and 9:00 p.m. until midnight, five days a week. 

 Mother noted that her current schedule eliminated the need for 

day care for the parties' son. Mother admitted she was married 

at the time of the previous hearing, but alleged that the length 

of her marriage was a material change. Finally, mother alleged 

that father's new home was in a neighborhood with few children, 

while her neighborhood had many children. 

 The overwhelming evidence established that the parties' son 

is a thriving, happy youngster who is loved by his parents and 

step-parents and who reciprocates that love. There was evidence 

that the child has a strong bond with his father and was eagerly 

anticipating being a "big brother" to his new step-sibling. 

While mother's changed work schedule was a change in 

circumstances, we find no error in the trial court's conclusion 

that mother failed to demonstrate that the change was material. 

There was no evidence warranting a change in the current stable 

physical custody arrangement under which the child was doing so 

well. See Hughes, 18 Va. App. at 322, 443 S.E.2d at 451. 

 Mother contends, under her second and third issues, that the 

trial court erred by failing to address the second prong of the 

Keel test. Assuming arguendo that those issues were preserved 

for appeal, we find them to be without merit. If a court does 

not find evidence of a material change of circumstances, 

consideration of the "best interests" prong of the Keel test is 

barred by principles of res judicata. See Hiner v. Hadeed, 15 
- 5 - 

Va. App. 575, 580, 425 S.E.2d 811, 814 (1993). In the absence of 

evidence that there was a material change in circumstances, we 

find no error in the court's failure to expressly apply the 

evidence to a consideration of the child's best interests or the 

statutory factors set out in Code § 20-124.3. 

 Noting that it "recognize[d] the importance of time spent 

with both natural parents," the trial court increased mother's 

scheduled visitation with the child. We find the trial court did 

not violate the mandate of Code § 20-124.2(B) to "assure minor 

children of frequent and continuing contact with both parents, 

when appropriate . . . ." 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.