COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Annunziata 

Argued at Alexandria, Virginia 

WILLIAM I. STEWART 

 MEMORANDUM OPINION* BY 

v. Record No. 1570-97-4 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 31, 1998 

ALICE DESPARD, F/K/A 

 ALICE STEWART 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

William T. Newman, Jr., Judge 

 Raymond B. Benzinger (Mary M. Benzinger; 

Benzinger & Benzinger, on brief), for 

appellant. 

 Edward V. O'Connor, Jr. (Byrd, Mische, Bevis, 

Bowen, Joseph & O'Connor, on brief), for 

appellee. 

 William I. Stewart (husband) appeals the decision of the 

trial court in a hearing on remand from this Court in favor of 

Alice Despard (wife). Husband contends that the trial court 

erred in its valuation of the marital business, its determination 

of the equitable distribution award, and its ruling that no 

material change of circumstances justified altering the parties' 

child custody arrangement. We affirm the decision of the trial 

court. 

 On December 18, 1992, the Circuit Court of Arlington County 

entered a final decree of divorce between the parties. The 

decree awarded wife sole custody of the parties' child, Dillon, 

 

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

designated for publication. 
 2 

awarded the marital business, a restaurant and bar called 

Roratonga Rodeo, to wife, and found that Roratonga Rodeo had no 

value. In an unpublished opinion, this Court reversed the 

court's finding that Roratonga Rodeo had no value as unsupported 

by the evidence, and remanded for further proceedings. Prior to 

the hearing on remand, husband filed a series of motions 

regarding Dillon, including a petition for change in custody. 

The court consolidated all pending issues for a hearing on April 

21, 1997. 

 I. 

 Valuation 

 Husband contends that the trial court erred in valuing 

Roratonga Rodeo at $40,000. On appeal, we will not disturb a 

trial court's valuation of property unless it is plainly wrong or 

without evidence to support it. Gamble v. Gamble, 14 Va. App. 

558, 563, 421 S.E.2d 635, 638 (1992) (citing Schoenwetter v. 

Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989)). We 

view the evidence in the light most favorable to wife, the party 

prevailing below. Id. (citing Schoenwetter, 8 Va. App. at 605, 

383 S.E.2d at 30). 

 Husband first contends that the court erroneously 

disregarded the uncontradicted testimony of his valuation expert, 

Arthur Jackson-Early, that Roratonga Rodeo was worth between 

$60,000 and $66,000. We disagree. The court stated that it had 

taken Jackson-Early's testimony into account in valuing the 
 3 

business at $40,000, and specifically cited Jackson-Early's 

testimony that a bar across the street had sold for $55,000. 

Furthermore, the court "has the discretion to accept or reject 

any of [an expert] witness' testimony." Street v. Street, 25 Va. 

App. 380, 387, 488 S.E.2d 665, 668 (1997) (en banc). The court, 

therefore, was not required to uncritically accept 

Jackson-Early's valuation, but could accept or reject portions of 

the testimony as warranted by the evidence as a whole. 

 Husband next contends that wife's valuation of Roratonga 

Rodeo was not in evidence and that, therefore, Jackson-Early's 

valuation was uncontradicted. This argument lacks merit. In her 

opening statements, without objection, wife gave the court the 

appendices from the prior appeal to this Court, which contained 

transcripts of the 1992 hearing. The trial judge informed the 

parties that he expected to examine the transcripts and that 

testimony found in the transcripts need not be repeated.1 At the 

earlier hearing, wife testified, "I would say it is worth about –

 with the equipment in there and all, you know, it is about 

twenty thousand dollars." The record makes clear that the trial 

court considered wife's testimony as contained in the transcripts 

of the November 1992 hearing to be in evidence. 

 Husband argues that the court erred in relying on the sale 

 

 1At oral argument, counsel for husband argued that the court 

admitted the transcript on the issue of child custody, but not on 

the issue of valuation. This argument is not supported by the 

record. 
 4 

of husband's nearby Amdo Rodeo bar for $55,000 because no 

evidence establishes the similarities between the two bars. 

Husband's own witness, Jackson-Early, testified he considered the 

sale of Amdo Rodeo for $55,000 in determining the value of 

Roratonga Rodeo, but distinguished the value of the two bars on 

the basis that husband had opened a third bar in the same area, 

called Bardo, and that the new owner of Amdo changed the name and 

format of Amdo. In light of this testimony, the trial court did 

not abuse its discretion in considering the sale of Amdo Rodeo in 

valuing Roratonga Rodeo. The court could properly conclude that 

Jackson-Early's distinctions between the bars were unpersuasive. 

 The court could also properly conclude that the factors 

Jackson-Early relied upon to discount the price of Amdo Rodeo 

applied equally to Roratonga Rodeo, as all three bars were in 

competition and wife had changed the name of Roratonga Rodeo to 

Galaxy. 

 Thus, in valuing Roratonga Rodeo, the trial court had before 

it wife's valuation of $20,000, Jackson-Early's valuation of 

$60,000-$66,000, and a comparable sale of $55,000. The court was 

not required to accept the testimony of an expert over the 

testimony of a party. Stratton v. Stratton, 16 Va. App. 878, 

883, 433 S.E.2d 920, 923 (1993). Confronted with a range of 

values, the court was within its discretion to value the business 

within that range. Aster v. Gross, 7 Va. App. 1, 9, 371 S.E.2d 

833, 838 (1988). 
 5 

 II. 

Equitable Distribution Award 

 Husband contends that the court erred in awarding him only 

$10,000 of the $40,000 value of Roratonga Rodeo.2

 The court 

found that after a review of all the evidence "and a 

consideration of all the factors contained in Va. Code 

§ 20-107.3(E), that [husband's] marital share of Roratonga Rodeo 

should be reduced by $10,000.00 to offset [wife's] efforts at 

running the business between March, 1991 and November, 1992 

leaving an equitable distribution award to [husband] in the sum 

of $10,000.00." It is well established that "the division or 

transfer of marital property and the amount of any monetary award 

are matters committed to the sound discretion of the trial 

court." Theismann v. Theismann, 22 Va. App. 557, 564, 471 S.E.2d 

809, 812 (1996), aff'd, 23 Va. App. 697, 479 S.E.2d 534 (1996) 

(en banc) (mem.). Therefore, we will not disturb the court's 

award unless it is plainly wrong or without evidence to support 

it. Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 

675, 678 (1990). 

 The evidence before the court establishes that wife had been 

 

 2Husband also argues that wife did not present sufficient 

evidence of tracing to warrant treating a portion of this asset, 

valued at $40,000, as wife's separate property. See, e.g., von 

Raab v. von Raab, 26 Va. App. 239, 248-49, 494 S.E.2d 156, 160-61 

(1997). The court's decision makes clear, however, that its 

decision to award husband $10,000 of the $40,000 value of 

Roratonga Rodeo was based on equitable distribution principles, 

rather than classification principles. Evidence of tracing was 

therefore not needed. 
 6 

solely responsible for Roratonga Rodeo from the time of the 

parties' separation. Although wife employed two managers to 

supervise Roratonga Rodeo at night, she was solely responsible 

for the financial, tax, and licensing aspects of the business. 

During the period of time wife was responsible for the club, 

husband opened a competing restaurant/bar across the street, and 

began preparations to open a third restaurant/bar on the same 

street. As a result of these competing businesses, the gross 

sales of the Roratonga Rodeo dropped from roughly $20,000 per 

month to roughly $10,500 per month. This evidence supports the 

court's decision to award wife 75% of the value of Roratonga 

Rodeo, and the court did not abuse its discretion in determining 

the equitable distribution award. 

 III. 

Change of Custody 

 Finally, husband contends that the court erred in refusing 

to alter the child custody arrangement from wife's sole custody 

to joint custody. The court found that no material change of 

circumstances had taken place which would justify modification of 

custody. Our standard of review regarding a modification of 

custody is well established: 

 On appeal, we review the evidence in the 

light most favorable to the prevailing party 

below. Peple v. Peple, 5 Va. App. 414, 422, 

364 S.E.2d 232, 237 (1988). "The trial 

court's decision, when based upon an ore

tenus hearing, is entitled to great weight 

and will not be disturbed unless plainly 

wrong or without evidence to support it." 

Venable v. Venable, 2 Va. App. 178, 186, 342 
 7 

S.E.2d 646, 651 (1986). 

Hughes v. Gentry, 18 Va. App. 318, 321-22, 443 S.E.2d 448, 451 

(1994). 

 In Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 

(1983), the Supreme Court of Virginia established the standard 

for modification of child custody on the basis of changed 

circumstances: "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." In order to 

allow a change of custody, a change in circumstances must be 

material, i.e., "an actual change." Kaplan v. Kaplan, 21 Va. 

App. 542, 548, 466 S.E.2d 111, 114 (1996); see Featherstone v. 

Brooks, 220 Va. 443, 446, 258 S.E.2d 513, 515 (1979). The party 

seeking a change in custody bears the burden of proof. Hughes, 

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

 Husband argues that Dillon's poor performance in school and 

wife's failure to facilitate Dillon's extracurricular activities 

constitute changed circumstances. Dillon's report card for the 

first semester of the 1996-97 school year shows that he received 

the highest grade in forty out of fifty areas of development, and 

received the second-highest grade on the remainder. The report 

card also shows that over the course of the semester, Dillon was 

absent three days and tardy four days. On one occasion, wife 

failed to take Dillon to the second day of a swim meet. We find 

that the court was within its discretion to find that this 
 8 

evidence did not establish a material change of circumstances. 

 Husband argues that he has more time than wife to care for 

Dillon and that his superior availability, as well as an 

"informal" visitation arrangement between the parties, 

constitutes changed circumstances. Husband testified that he had 

become "redundant" at work and only worked five hours per day. 

Wife, however, only worked two nights a week. Wife maintained 

the court-ordered visitation schedule, with the exception of one 

occasion, on which she withheld husband's visitation in 

retaliation for husband retaining Dillon for an extra night 

without authorization. In addition to finding that husband's 

claims of superior availability had been previously adjudicated, 

the court found that they did not amount to a material change in 

circumstances. We find that this ruling is supported by evidence 

in the record, and we will not disturb the trial court's finding. 

 Husband also contends that wife's admission of marijuana use 

constitutes a material change in circumstances. Wife admitted 

that she had used marijuana "probably twice a year" and that her 

husband smokes marijuana occasionally. She stated, "My marijuana 

use does not impact Dillon at all." Contrary to husband's 

argument, wife did not admit that she or her husband has ever 

used marijuana while Dillon was present or in the house; indeed, 

she did not admit that she or her husband used it in their home. 

 The court expressed its concern over wife's marijuana use, and 

ordered wife to present herself for substance abuse assessment, 
 9 

and to successfully complete any treatment ordered. Given the 

evidence in the record, we cannot find that the court abused its 

discretion in finding that no material change of circumstances 

had occurred, and fashioning a remedy it found appropriate under 

the evidence presented. The court ordered wife to receive 

substance abuse treatment, and to refrain from using any illegal 

substances. 

 Finally, husband argues that the court erred in not finding 

that the best interests of the child required joint custody.3

 

Before addressing the best interests of the child, a court must 

find a material change in circumstances. Bostick v. 

Bostick-Bennett, 23 Va. App. 527, 535, 478 S.E.2d 319, 323 (1996) 

(citing cases). If a court does not find a material change of 

circumstances, consideration of the "best interests" prong of the 

Keel test is barred by principles of res judicata. Hiner v. 

Hadeed, 15 Va. App. 575, 580, 425 S.E.2d 811, 814 (1993). 

Accordingly, the trial court properly refused to reach the issue 

of the best interests of the child, given that it did not find a 

material change in circumstances. 

 For the above reasons, we affirm the decision of the trial 

court. 

 Affirmed.

 

 3Husband also argues that the court should have altered the 

visitation schedule. Husband did not present this argument to 

the trial court, and is thus barred from asserting it on appeal. 

 Rule 5A:18.