COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Beales and O’Brien

Argued by videoconference

NICOLE COOPER

MEMORANDUM OPINION* BY

v. Record No. 1078-20-3 JUDGE MARY GRACE O’BRIEN

APRIL 20, 2021

JUSTIN LAURENT

FROM THE CIRCUIT COURT OF BEDFORD COUNTY

James W. Updike, Jr., Judge

Matthew L. Pack (M. Pack Law, PLLC, on brief), for appellant.

Emily Rowe Sitzler (William P. Walker, Guardian ad litem for the 

minor children; Rowe & Sitzler, LLP, on brief), for appellee.1

Nicole Cooper (“mother”) moved to amend a custody and visitation order for her two 

children, who resided with their father, Justin Laurent (“father”). At the close of mother’s case at 

trial, the court granted father’s motion to strike the evidence. Mother contends that the court erred 

by finding that she had not proved a material change in circumstances. She also argues that father 

waived his motion to strike by introducing evidence during her case-in-chief. Finding no error, we 

affirm.

BACKGROUND

“According to well-settled principles of appellate review, when the trial court grants a 

motion to strike the plaintiff’s evidence, [appellate courts] review the evidence on appeal in the light 

most favorable to the plaintiff.” Green v. Ingram, 269 Va. 281, 284 (2005); see also Chaplain v. 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

1 Pursuant to Rule 5A:19(d), the Guardian ad litem notified the clerk’s office of his support 

of father in a letter dated January 21, 2021.

UNPUBLISHED
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Chaplain, 54 Va. App. 762, 771 (2009). Accordingly, we consider the evidence in the light most 

favorable to mother, the plaintiff at trial.

The parties divorced in 2013 and were granted joint legal custody of their two minor sons. 

Father, who received primary physical custody, continued to reside with the children in Bedford. 

Mother lived in Roanoke and had visitation every other weekend, a week at Christmas, and two 

weeks in the summer.2

In June 2015, on mother’s motion to amend visitation, the circuit court found “no material 

change in circumstances from the time of entry of the last final order.” It denied her motion and 

remanded the case to the juvenile and domestic relations district court (“JDR court”) for any further 

proceedings.

In April 2019, mother filed motions in JDR court to amend custody and visitation. At that 

time, father requested sole legal custody. After a September 27, 2019 hearing, the JDR court ruled

that the parties would continue to share legal custody and father would retain primary physical 

custody, but it expanded mother’s visitation schedule, awarding her “physical custody of the 

children during the summer months.” The order also contained a provision emphasizing father’s 

obligation to cooperate with mother and keep her reasonably informed of all medical, dental, and 

mental health matters and decisions concerning the children, including “any and all . . . 

appointments.” 

Both parties appealed the JDR ruling to circuit court, but father subsequently withdrew his 

motion for sole legal custody. He advised the court that he no longer “believe[d] that there’s been a 

material change in circumstances that would warrant . . . any kind of change in custody or 

visitation.” In addition to appealing the custody and visitation order, mother filed a “Motion to 

2 The 2013 order is not in the record, but the parties do not dispute its provisions for custody 

and visitation.
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Show Cause” in circuit court on January 3, 2020, alleging that father failed to communicate with her 

regarding certain medical decisions for one of their children.3

Mother’s motions to amend custody and visitation were heard on February 27, 2020. At 

that time, the parties’ older son, P.L., was thirteen, and their younger son, J.L., was ten.4 For 

modification purposes, the court found that the initial 2013 order was the most recent custody order 

and the last visitation order was in 2015, when the court dismissed mother’s request to modify 

visitation.

Mother presented evidence that she remarried in August 2013 and, subsequent to the 2015 

order denying her request to modify visitation, she and her new husband purchased a home in 

Roanoke and obtained jobs as school bus drivers. She stated that she chose this job “[b]ecause it 

works around school schedules” and enables her to “still . . . have [her] visitation with the boys.”

Mother’s husband testified that when the boys visit, he plays games and watches television with 

them and assists with their homework. Mother explained that she was seeking primary physical 

custody because she believed her sons “would be in a more stable environment in [her] house.”

The boys have lived in the same home with their father since birth and have always attended 

Bedford County schools. At the time of trial, they were active in sports and theater programs, and 

P.L., who was in eighth grade, already had four high school credits. P.L. also had been diagnosed 

with anxiety and ADHD and was prescribed medication by a psychiatrist. Mother testified that she 

was unaware of P.L.’s mental health issues and treatment until the child told her in 2017 or 2018. 

She also stated that father did not advise her that P.L. was taking prescription medication for his 

anxiety; she learned about the medication when father sent P.L. for visitation with pills in a Ziploc 

3 The circuit court never issued a rule to show cause or otherwise adjudicated mother’s 

motion.

4 We use initials, instead of the children’s names, to protect their privacy.
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plastic bag. According to mother, father is difficult to communicate with, “take[s] days to respond,” 

and does not consult her about scheduling doctors’ appointments for P.L. Mother also stated that on 

November 25, 2019, father agreed to an increase in P.L.’s medication without consulting her.

Mother acknowledged that father informed her of the November 25 doctor’s appointment in 

September 2019, but she could not attend because missing work “would have damaged [her

pay]check.” She also agreed that father often grants her requests for additional visitation with the 

children.

Mother called father as an adverse witness in her case. Father testified that he had been 

employed delivering fuel for approximately seven years and had a commercial driver’s license with 

hazardous materials endorsements. He also testified that he has Asperger’s syndrome and, at the 

time of trial, had been taking prescription medication for ADHD for “less than a year,” but the 

medication does not impact his ability to drive or work.

Father explained that P.L.’s doctor initially advised against telling mother about P.L.’s 

medical appointments because “the doctor knows [mother] and knows that she’s easy to 

excitement[,] and [the doctor] was worried that that may excite [P.L.] even more.” Father

acknowledged that he only provided mother with the information about P.L.’s diagnoses and 

treatment “after she asked” and stated that he was used to “do[ing] everything” for the children, 

even when the parties were still married.

Father testified that he primarily communicates with mother via text message. He

introduced text messages showing that he told mother of P.L.’s theater productions and 

accommodated her requests for additional visitation. Father also introduced his text messages 

advising mother of P.L.’s November 2019 medical appointment, as well as appointments for 

December 2019 and January 2020. When the psychiatrist again increased P.L.’s medication in 

January 2020, father informed mother and provided her a copy of the prescription.
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Father agreed with mother having expanded visitation with the children. However, he 

opposed a custody change because it would result in the “children being uprooted out of Bedford 

and put in Roanoke.” When asked about his initial failure to communicate with mother regarding

P.L.’s mental health issues, he responded that, in retrospect, he “would have done things 

differently.” He also stated that “according to the paperwork for [c]ourt,” he now realizes that he 

must communicate with mother and “that’s what [he’s] been doing.”

At the close of mother’s case, father moved to strike the evidence on the ground that mother 

failed to establish a prima facie showing of “a material change in circumstances . . . that warrants a 

change in custody for the best interests of the children.”

The court granted father’s motion. It noted that most of mother’s evidence related to her 

contention that father “didn’t share . . . certain information concerning medical treatment and 

prescriptions” but “there’s evidence that he didn’t think he had to.” However, the court found that 

father recognized, “particularly since the last [c]ourt hearing,” that he had an obligation to keep 

mother informed.

The court ruled that mother had the “burden . . . to prove a material change in circumstances 

warranting modification of the earlier order to serve the best interest of the children” and “applying 

that standard, the evidence is insufficient.” The court concluded that, even viewing the evidence in 

the light most favorable to mother, “there’s got to be evidence to view[,] and I don’t see it here.”

The final order dismissed mother’s motion “because [she] failed to prove a material change 

of circumstances in [the] light most favorable to [her].”
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ANALYSIS

Code § 20-108 gives a court authority to modify an order “concerning the care, custody, and 

maintenance of the children and make a new decree concerning the same, as the circumstances of 

the parents and the benefit of the children may require.”

The Supreme Court has established a two-prong test to determine whether modification of a 

custody order is warranted: “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 (1983). See also Rhodes v. Lang, 66 Va. App. 702, 709 (2016) (stating that

Keel’s two-prong test applies to visitation order modifications). “[T]he parent seeking to obtain a 

transfer of custody bears the burden to show a change in circumstances following the most recent 

custody award.” Hughes v. Gentry, 18 Va. App. 318, 322 (1994).

Here, the initial custody and visitation order was entered in 2013, when the parties divorced. 

In 2015, when mother petitioned to amend visitation, the court found that she had not established a 

material change in circumstances and denied her motion. Mother’s subsequent motion that was 

heard in February 2020 requested changes in both custody and visitation. For purposes of 

determining materially changed circumstances, the 2013 order establishes the baseline for 

modifying custody, and the 2015 order establishes the baseline for modifying visitation. We note 

that the only evidence of a changed circumstance predating the 2015 visitation order was mother’s 

2013 remarriage. Regardless of the reference date, for the reasons that follow, the court did not err 

in granting father’s motion to strike based on mother’s failure to establish materially changed 

circumstances.

Whether a material change in circumstances has occurred is a question of fact. See

Visikides v. Derr, 3 Va. App. 69, 71-72 (1986). In reviewing a trial court’s decision to grant a 

motion to strike, “it is [this Court’s] duty to view the evidence and all reasonable inferences 
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therefrom in the light most favorable to the plaintiff whose evidence was struck.” Barnes v. Barnes, 

64 Va. App. 22, 28 (2014) (alteration in original) (quoting Costner v. Lackey, 223 Va. 377, 381 

(1982)).

That standard requires the trial court to accept as true all the evidence 

favorable to the plaintiff as well as any reasonable inference a 

[factfinder] might draw therefrom . . . . The trial court is not to judge 

the weight and credibility of the evidence, and [it] may not reject any 

inference from the evidence favorable to the plaintiff unless it would 

defy logic and common sense.

Chaplain, 54 Va. App. at 772-73 (quoting Austin v. Shoney’s, Inc., 254 Va. 134, 138 (1997)).

A trial court only addresses the second prong of the Keel test, the best interests of the 

children, if the petitioning party has established a material change in circumstances. See Wheeler v. 

Wheeler, 42 Va. App. 282, 289 (2004); see also Hughes, 18 Va. App. at 322 (noting that the

threshold requirement for materially changed circumstances “provide[s] stability in the life of the 

child whose custody is the subject of the conflict between the parents”). If a party does not establish

this threshold issue, the court does not consider whether a change in custody would be in the best 

interests of the children. See Wheeler, 42 Va. App. at 289. Here, because the court found that 

mother had not met her burden to show a material change in circumstances, it did not address 

whether modifying custody or visitation would be in the children’s best interests.

5

In Keel, the Supreme Court stated that a “change in circumstances”

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 

5 Although the court referred to the children’s best interests in its bench ruling, its final order 

expressly dismissed mother’s motions based on her failure to prove a material change in 

circumstances. Because “a court speaks through its orders,” see McBride v. Commonwealth, 24 

Va. App. 30, 35 (1997), we limit our review to the court’s ruling as reflected in the final order.
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emotional and financial support for the children, and other such 

changes.

225 Va. at 611-12. In this case, mother testified that she remarried, purchased a home, and began a 

job with a schedule conducive to raising children. She also introduced evidence that father initially 

did not advise her of P.L.’s ADHD and anxiety diagnoses or consult with her about P.L.’s 

treatment. She elicited testimony that father recently began taking prescription medication for his 

own ADHD diagnosis. Even accepting as true all evidence and inferences that some circumstances 

had changed since the 2013 custody order and the 2015 visitation order, the court could reasonably

conclude that these changes were not material because they did not significantly alter the situation 

that existed when the previous orders were entered. See id. at 612.

Under Keel, a noncustodial parent’s remarriage and stabilization, as well as a child’s 

“special educational needs,” are merely factors a court can consider; they do not always establish a 

material change in circumstances unless they make the prior orders inappropriate or unworkable. 

See id. Here, father was awarded primary physical custody in 2013 and, as of the February 2020 

trial, was continuing to meet the needs of both children. They have lived with him in Bedford 

County their entire lives, have always attended Bedford County schools, and participate in 

extracurricular activities. Father consistently provided a stable home life for the children. Although 

P.L. was diagnosed with ADHD and anxiety, he performed well in school, and father ensured that 

the child received the necessary medical attention. Further, there was no evidence that father’s own 

mental health issues negatively affected his parenting. Considering the evidence in mother’s favor, 

we find the court could reasonably conclude that she failed to establish that the positive 

developments in her life materially changed the circumstances under which the court awarded father 

primary physical custody in 2013 and denied her request to modify visitation in 2015.
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Additionally, the evidence showed that although father initially neglected to keep mother 

informed about P.L.’s medical and mental health issues, he improved his communication with 

mother by the time of the hearing. Text messages reflect that father informed mother of P.L.’s 

appointments and medications. Text messages also demonstrate that father allowed mother extra 

visitation and told her about the children’s extracurricular activities so that she could attend. Father 

acknowledged that he should have been more forthcoming in the past, and he testified that in 

retrospect, he would have done things differently. Therefore, the evidence supports the court’s 

determination that father’s communication issues did not demonstrate a material change in 

circumstances and that mother failed to meet her burden of proof on this threshold issue. See

Hughes, 18 Va. App. at 322.

Mother also contends that father waived his motion to strike by introducing text messages 

during her case-in-chief. Relying on United Leasing Corp. v. Lehner Family Business Trust, 279 

Va. 510 (2010), she argues that by introducing text messages while cross-examining her, father 

“abandoned” his motion to strike at the conclusion of her case. However, United Leasing is not 

applicable. That case addressed a “renewed” motion to strike at the close of all evidence and held 

that a defendant must reassert all bases for its initial motion or else be deemed to have abandoned 

them for appellate review. See id. at 516-20.

United Leasing does not preclude a defendant from presenting evidence during a plaintiff’s 

case-in-chief and thereafter moving to strike at the end of the plaintiff’s case. Thus, father did not 

waive his motion by introducing evidence when he cross-examined mother; instead, he simply 

added to the quantum of evidence the court could consider when determining whether to grant his 

motion. See Costner, 223 Va. at 381. In ruling on father’s motion, the court did not make any 

credibility determinations or weigh that evidence; rather, it applied the proper standard by 

“accept[ing] as true all the evidence favorable to [mother] as well as any reasonable inference a 
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[factfinder] might draw therefrom” and concluded that the evidence failed to make a prima facie 

showing of materially changed circumstances. See Chaplain, 54 Va. App. at 772. Applying this 

same standard on appeal, see id. at 771, we find that the record supports this conclusion and that the 

court did not err in granting father’s motion to strike.

CONCLUSION

For the foregoing reasons, the court did not err in finding that mother failed to make a prima 

facie case of materially changed circumstances. Additionally, father did not waive his motion to 

strike by introducing evidence during mother’s case-in-chief. For these reasons, we affirm the 

court’s decision to grant father’s motion to strike.

Affirmed.