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, 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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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 
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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 
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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 
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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 
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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 
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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.