COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Annunziata and 

 Bumgardner 

Argued at Alexandria, Virginia 

AMY JO CLARK ETTER 

 MEMORANDUM OPINION* BY 

v. Record No. 0506-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 MAY 5, 1998 

CRAIG ALAN ETTER 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Gerald B. Lee, Judge 

 David H. Fletcher (Martin A. Gannon; Gannon, 

Cottrell & Ward, on briefs), for appellant. 

 David D. Masterman (Cheryl K. Graham; Condo & 

Masterman, on brief), for appellee. 

 On appeal from the trial court's decision awarding Craig 

Alan Etter (father) sole custody of the parties' children, Amy Jo 

Clark Etter (mother) contends the court erred in finding: (1) 

that a material change in circumstances had occurred subsequent 

to the parties' stipulated custody agreement; and (2) that the 

change in circumstances justified a modification awarding sole 

custody of the children to father. For the following reasons, we 

affirm the judgment of the trial court. 

 I. 

 On May 16, 1995, mother and father entered a comprehensive 

"Stipulation of Agreement" concerning the custody of their three 

children. This agreement was incorporated into a Final Decree of 

 

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

designated for publication. 
 2 

Divorce on June 15, 1995. The agreement established joint legal 

custody: 

 "meaning on all matters of importance, 

including but not limited to the residence of 

the children, their education, medical 

treatments, and all other developmental 

issues, . . . [the parties] shall make joint 

decisions in the best interests of the 

children." 

 On August 12, 1996, father filed for modification based on 

numerous allegations that mother had violated the terms of the 

agreement by failing to consult him on required issues, that the 

parties could not communicate, and that mother had interfered 

with his visitation. He requested sole custody based on changed 

circumstances. Mother filed a similar petition on November 12, 

1996, requesting sole custody based on changed circumstances, 

including the parties' inability to co-parent. On January 13, 

1997, the trial court held a two day ore tenus hearing. 

 "'[W]e view the evidence and all reasonable inferences in 

the light most favorable to the prevailing party below.'" 

Johnson v. Johnson, 26 Va. App. 135, 144, 493 S.E.2d 668, 672 

(1997) (citation omitted). Viewed in this light, the evidence 

adduced at the hearing established that the parents' 

communication had deteriorated significantly from the time the 

Stipulation of Agreement was entered. Rather than consulting 

with each other, they communicated via fax, phone, letter, and 

occasionally through the children. Further, mother made 

decisions concerning the children without consulting father. 
 3 

Most notably, she decided unilaterally to place Joseph, a child 

who required special services, in a different school and 

subsequently refused to discuss this issue with father, either 

directly or through mediation. Additionally, the parties were 

unable to conduct visitation transitions smoothly. When father 

was scheduled to pick up the children for his summer visitation 

in 1995, he obtained police intervention because mother refused 

to give him the children or to talk with him over the phone or in 

person. The parties also engaged in argument over the duration 

of father's time with the children on Father's Day. 

 At the conclusion of the hearing, the trial court found that 

"joint custody has been a failure," because the parties "have not 

cooperated, not communicated." The court further found that the 

friction between the parents has "impacted the children." While 

the trial court acknowledged that father was not "blame free," 

the court noted mother's repeated refusals to participate in 

mediation or talk with father and her insistence on communicating 

by message, fax or mail. The trial court reviewed each of the 

statutory factors in Code § 20-124.3 and concluded: 

 under factor number six, the propensity of 

each parent to actively support the 

children's relationship with the other parent 

and the ability to cooperate -- there is a 

key distinction between the two [parties]. I 

find that Ms. Clark is well intentioned [but] 

her judgment over the last eighteen months 

has severely impacted these children's 

relationship with the father in a way that is 

unacceptable. I find that . . . it is in the 

best interest of the children that the sole 

custody be awarded to the father. 
 4 

 II. 

 Mother contends the trial court erroneously found a change 

in circumstances justifying a modification of the stipulated 

custody agreement. We disagree. 

 The standard to be applied to modification of child custody 

is well settled: 

 "A trial court, in determining whether a 

change of custody should be made, must apply 

a two-pronged test: (1) whether there has 

been a [material] change in circumstances 

since the most recent custody award; and (2) 

whether a change in custody would be in the 

best interests of the child." 

Wilson v. Wilson, 18 Va. App. 193, 195, 442 S.E.2d 694, 696 

(1994) (quoting Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 

40, 41 (1986)). "'Whether a change of circumstances exists is a 

factual finding that will not be disturbed on appeal if the 

finding is supported by credible evidence.'" Ohlen v. Shively, 

16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993) (citation 

omitted). "[T]rial courts are vested with broad discretion in 

making the decisions necessary to guard and to foster a child's 

best interests." Farley v. Farley, 9 Va. App. 326, 328, 387 

S.E.2d 794, 795 (1990) (citing Eichelberger v. Eichelberger, 2 

Va. App. 409, 412, 345 S.E.2d 10, 12 (1986)). "Where a trial 

court makes a determination which is adequately supported by the 

record, the determination must be affirmed." Farley, 9 Va. App. 
 5 

at 328, 387 S.E.2d at 796. 

 In deciding what custody arrangement is in the child's best 

interests, the court must consider the following factors in Code 

§ 20-124.3: 

 1. The age and physical and mental condition 

of the child, giving due consideration to the 

child's changing developmental needs; 

 2. The age and physical and mental condition 

of each parent; 

 3. The relationship existing between each 

parent and each child, giving due 

consideration to the positive involvement 

with the child's life, the ability to 

accurately assess and meet the emotional, 

intellectual and physical needs of the child; 

 4. The needs of the child, giving due 

consideration to other important 

relationships of the child, including but not 

limited to siblings, peers and extended 

family members; 

 5. The role which each parent has played and 

will play in the future, in the upbringing 

and care of the child; 

 6. The propensity of each parent to actively 

support the child's contact and relationship 

with the other parent, the relative 

willingness and demonstrated ability of each 

parent to maintain a close and continuing 

relationship with the child, and the ability 

of each parent to cooperate in matters 

affecting the child; 

 7. The reasonable preference of the child, if 

the court deems the child to be of reasonable 

intelligence, understanding, age and 

experience to express such a preference; 

 8. Any history of family abuse as that term 

is defined in § 16.1-228; and 

 9. Such other factors as the court deems 

necessary and proper to the determination. 

(Emphasis added). 

 In the instant case, the record provides ample credible 

evidence that the custody circumstances had changed from the date 
 6 

of the stipulation. The parties' inability to cooperate 

sufficiently to co-parent clearly was not contemplated by the 

agreement. The lack of effective communication and the inability 

to adequately consult and make joint decisions regarding the 

children undermined the earlier joint custody agreement. The 

trial court's finding that the joint custody plan was "a failure" 

was supported by credible evidence. 

 Additionally, mother conceded in her trial court pleadings 

that the parties' inability to communicate or maintain a civil 

relationship constituted a change in circumstances justifying a 

change in custody. Therefore, we hold that the trial court did 

not abuse its discretion in finding a change in circumstances 

requiring modification of the custody agreement. 

 Mother also argues that the trial court abused its 

discretion because the award of sole custody to father was 

unsupported by the evidence and contrary to the recommendation of 

the expert custody evaluator. We disagree. The trial court need 

not adopt the recommendation of the expert. See Street v. 

Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en

banc) ("the fact finder is not required to accept the testimony 

of an expert witness merely because he or she has qualified as an 

expert"). The record demonstrates that the trial court 

considered the behavior of both parents as well as the expert's 

recommendation. Although not required to do so, the court 

specified its reasons for rejecting the expert's recommendation 
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in favor of a more definitive solution. Furthermore, the record 

establishes that mother's behavior regarding visitation and her 

refusal to discuss schooling and other issues with father 

supports the trial court's finding that she "does not exhibit [a] 

spirit of cooperation." The record before us adequately supports 

the trial court's determination that the children's best interest 

was served by an award of sole custody to father. 

 Mother also contends the trial court erred in denying her 

motion to reconsider in light of evidence of the oldest child's 

desire to remain with mother and other proffered testimony. "In 

the absence of a material change in circumstance, reconsideration 

. . . would be barred by res judicata." Hiner v. Hadeed, 15 Va. 

App. 575, 580, 425 S.E.2d 811, 814 (1993). The trial court 

addressed the question of the children's wishes and declined to 

find that any of the children were of the age, intelligence, and 

experience to express a cognizable preference. As to the other 

proffered testimony, the court found that mother had an 

opportunity to present her case at the hearing. We hold that the 

proffered testimony failed to demonstrate a material change in 

circumstances subsequent to the trial court's custody order and 

that the trial court did not abuse its discretion in denying 

mother's motion to reconsider. 

 Father has requested an award of attorney's fees for this 

appeal. We find that wife had reasonable grounds for appeal. 

Therefore, husband's request for fees is denied. See Gayler v. 
 8 

Gayler, 20 Va. App. 83, 87, 455 S.E.2d 278, 280 (1995). For the 

foregoing reasons, the judgment of the trial court is affirmed. 

 Affirmed.