COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Benton and 

 Senior Judge Overton 

Argued at Alexandria, Virginia 

DAVID L. FORRESTER 

 MEMORANDUM OPINION* BY 

v. Record No. 0348-02-4 JUDGE NELSON T. OVERTON 

 OCTOBER 22, 2002 

PHYLLIS E. RIENZO-FORRESTER 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

 Robert D. Dain (Cherise Dyann Cuevas; Dain, 

Oxley, Markley & Nicoli, P.L.L.C., on 

briefs), for appellant. 

 Susan Massie Hicks (Susan Hicks & Associates, 

P.C., on brief), for appellee. 

 David L. Forrester, father, appeals the decision of the 

trial court awarding sole legal custody and sole physical 

custody of the parties' two children to Phyllis E. 

Rienzo-Forrester, mother. Father contends the trial court erred 

in: (1) failing to consider all of the factors of Code 

§ 20-124.3 in awarding sole custody to mother; (2) determining 

the quantity of visitation awarded to father; (3) finding that 

mother was and is the primary caregiver of the children and that 

mother and father are unable to cooperate on issues involving 

the children; (4) failing to consider father's payment of 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
one-half of the mortgage payment on the jointly owned marital 

residence as a deviation in calculating child support; (5) 

ordering father's continuing payment of one-half of the 

mortgage; and (6) determining the amount of child support 

awarded to mother. Mother also requests attorney's fees 

incurred in this appeal. Finding that the trial court did not 

err, we affirm the decision of the trial court. We also deny 

mother's request for attorney's fees. 

FACTS

 The parties were married for about fifteen years. They 

have two children, who were twelve and eight years old at the 

time of the November 20, 2001 custody hearing. At that time, 

the court had ordered exclusive use of the marital residence to 

mother. Father continued to pay one-half of the mortgage 

payment. 

 Mother is a computer sales representative who works about 

sixty percent of the time out of her home office. She has a 

flexible work schedule, allowing her to attend children's 

functions during the day. Mother's annual income was about 

$130,000 in 2001. Mother earned $300,000 the previous year, but 

she indicated that she had cashed some stock options during that 

year, which were added to her income. Mother also stated that 

the field of technology sales is now "difficult." 

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 Mother testified that, during the marriage, she performed 

about eighty to ninety percent of the household activities and 

care of the children. She did the family's laundry, grocery 

shopping, and cooking. Both parties drove the children to and 

from activities. 

 Prior to the custody hearing, the parties had reached 

several mutual agreements concerning child custody and 

visitation, but mother testified there had been problems with 

overnight visitation with father during the school year. 

Mother stated that the children would get less sleep, lack 

school supplies, and generally have less stability in their 

lives when they stayed with father overnight during the school 

week. Mother also testified concerning several incidents where 

father made last minute changes to planned visitation schedules. 

Mother described father as a "reasonably good parent." 

 Mother testified she would encourage the children to spend 

as much time as possible with father in the future. However, 

she also stated that she believes father uses "poor judgment 

sometimes." She gave examples such as when he left the children 

unattended in the home. 

 On one occasion when father expressed a desire to have the 

children visit his therapist, mother took the children to her 

parents' home in Fredericksburg and advised father that she 

refused to return with the children until he agreed not to take 

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them to his therapist. Father obtained an emergency custody 

hearing for the next day, and the parties then entered a 

"fifty-fifty" custody schedule. 

 Several of mother's friends testified that mother is a good 

parent and often attends functions with the children. Several 

witnesses testified on father's behalf, but most of the 

witnesses knew father through work or tennis relationships and 

had not witnessed many interactions between him and the 

children. 

 Mother requested that she have custody of the children 

during the school week since she has been their primary 

caregiver and so that the children would have stability and 

consistency in their lives. 

 Father testified that he earns about $91,250 per year. 

Father testified he has been close to the children their whole 

lives, and he had an "equal important part" in their parenting. 

He stated that he changed diapers, attended soccer games and 

swimming lessons, and read books on parenting, children's 

development, and discipline. Father testified he meets the 

children's emotional and intellectual needs and is involved in 

their activities. Father described himself as caring and loving 

and stated that he has not interfered with the children's 

relationship with their mother, although he and mother have had 

disagreements on certain issues. 

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 Father believes he has been flexible with visitation 

changes requested by mother. He testified that mother has 

unreasonably denied him access to the children on two occasions. 

There was also an altercation between the parties which resulted 

in mother being arrested. The charges were later dropped. 

 Father stated he has attempted to communicate with mother 

"via whatever medium [she] will accept." He has used e-mail, 

voice mail and telephone calls. The parties have used a 

mediator in an effort to determine visitation issues, but were 

unable to resolve the issues. Father stated that the children 

love to visit him overnight. 

 Father testified that his job offers a flexible schedule, 

allowing him to attend activities with the children. Father 

disagreed with mother's testimony that the children get less 

sleep when they stay with him during the week. 

 Father asked for shared custody and presented a proposed 

visitation schedule. 

 The trial court awarded mother sole legal and physical 

custody of the children. The court then established a 

visitation schedule. The trial court stated: 

I've considered the appearance in the manner 

of the witnesses on the stand and the 

credibility of all the witnesses in making 

this decision. And in particular course 

I've considered all the factors in [Code 

§] 20-124.3. But in particular, and I'll 

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mention these factors, three, four, five and 

seven. 

 The court found that both parents had a "strong 

relationship" with the children and "there's certainly no way 

the scales come down one way or the other on that issue." The 

court further found that the ability to accurately assess the 

needs of the children favored mother. The trial court found 

that father's request for an "equitable division of time" seemed 

to focus on father's needs and not the children's needs. The 

court expressed concern that father on occasion made decisions 

"of questionable judgment" concerning the children. 

 The trial court found mother's testimony that the children 

need stability to be "very credible." The court also found 

that, while father "had a major role in the upbringing" of the 

children, mother "had been and continues to be the primary 

caregiver." The court stated that both parents are "extremely 

willing and have demonstrated that willingness to maintain a 

close relationship." However, the trial court found the 

evidence was "overwhelming" that the parents "do not cooperate 

and can't resolve their disputes." The court stated that this 

was one of the "major factors" it considered in deciding that 

shared custody was "just not an option" in the case. 

 The trial court found that mother's income is $11,397 per 

month and father's income is $7,627 per month. Work-related 

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child care costs are $339 per month, and medical insurance is 

$43 per month, which mother pays. The court ordered father to 

pay mother $970 per month in child support. The court also 

ordered that father continue to pay one-half of the monthly 

mortgage payment until the parties resolve equitable 

distribution issues. 

 The trial court stated that the parties should resolve the 

equitable distribution issues as quickly as possible so that one 

party would take over the mortgage payment or the parties would 

sell the house "or whatever they agree upon." 

ANALYSIS

 On appeal, we review the evidence in 

the light most favorable to the prevailing 

party below. . . . Where the record 

contains credible evidence in support of the 

findings made by that court, we may not 

retry the facts or substitute our view of 

the facts for those of the trial court. 

Ferguson v. Stafford County Dep't of Soc. Servs., 14 Va. App. 

333, 336, 417 S.E.2d 1, 2 (1992). 

 When determining which parent should have custody the trial 

court must decide what is in the best interests of a child and 

it is required to consider the factors listed in Code 

§ 20-124.3. The trial court is not required to quantify or 

elaborate on what weight or consideration it has given to each 

of the factors in Code § 20-124.3 or to weigh each factor 

equally. See Sargent v. Sargent, 20 Va. App. 694, 702, 460 

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S.E.2d 596, 599 (1995). The trial court is vested with broad 

discretion to safeguard and promote the child's interests, and 

its decision will not be reversed unless plainly wrong or 

without evidence to support it. See Farley v. Farley, 9 

Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990). 

 The record demonstrates that the trial court carefully 

considered and weighed the evidence and considered the factors 

set forth in Code § 20-124.3. In its ruling from the bench, the 

court elaborated on factors three, four, five and seven of the 

statute. Furthermore, the trial court's decision focused on the 

best interests of the children. 

 The record indicates that both parents have a strong bond 

with the children; however, the trial judge found mother was and 

is the primary caregiver. Moreover, the record shows that the 

parties are often unable to resolve disputes concerning the 

children, supporting the trial court's finding that a shared 

custody arrangement is not feasible. The parties were 

unsuccessful in their attempt to resolve custody and visitation 

issues through the use of a mediator. In addition, the trial 

court heard evidence of police intervention during one 

altercation between the parties. On another occasion, a dispute 

between the parties concerning the care of the children resulted 

in an emergency custody hearing. There were accusations that 

the parties exchange messages with one another, telling the 

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other parent of a change in plans instead of communicating and 

resolving issues. Thus, the custody decision of the trial court 

was not plainly wrong or without evidence to support it. 

 Determination of visitation rights is a matter of judicial 

discretion. Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 

345 S.E.2d 10, 11 (1986). This Court will not set aside the 

trial court's decision on visitation unless plainly wrong or 

without evidence to support it. Farley, 9 Va. App. at 328, 387 

S.E.2d at 795. 

 The trial court ordered that father have visitation on 

alternate weekends and on two evenings during the school week. 

The trial court declined to order a shared custody arrangement 

for the summer months for the same reasons it declined to order 

a shared custody arrangement for the school year. The court 

ordered an equitable and alternating division of the children's 

summer vacation time, and it ordered the parties to split or 

alternate holidays. Given the trial court's finding that the 

children need stability in their lives and that a shared custody 

arrangement is not feasible in this case, the visitation 

schedule was not an abuse of discretion. 

 "[D]ecisions concerning child support rest within the sound 

discretion of the trial court and will not be reversed on appeal 

unless plainly wrong or unsupported by the evidence." Barnhill 

v. Brooks, 15 Va. App. 696, 699, 427 S.E.2d 209, 211 (1993). "A 

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rebuttable presumption exists that the amount derived from the 

guidelines, Code § 20-108.2, is correct." Auman v. Auman, 21 

Va. App. 275, 277, 464 S.E.2d 154, 155 (1995). 

 Father did not rebut the presumption that the amount of 

child support derived from the guidelines is correct. The trial 

court determined mother's salary based on her most recent income 

figures. No evidence indicated that mother is voluntarily 

underemployed. Rather, her sales income fluctuates with market 

conditions. Thus, no evidence indicates that the presumptive 

amount of child support was unjust or inappropriate. 

 The trial court also ruled that the parties would continue 

to split the monthly mortgage payment until an equitable 

distribution hearing was scheduled. Evidence was presented that 

the parties had previously agreed to this arrangement, and no 

equitable distribution hearing had been scheduled. Although 

Code § 20-108.1(14) provides that the court may consider 

provisions made pursuant to the equitable distribution statute 

when determining whether to deviate from the presumptive child 

support guidelines, here, there had been no property 

distribution at the time the court decided the support issues. 

Therefore, the trial court did not err in ruling that the 

parties continue to evenly divide the monthly mortgage payment 

until the equitable distribution hearing and that this 

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arrangement would have no effect on the calculation of child 

support at this time. 

 Mother requests attorney's fees expended on this appeal. 

"We have said that 'the key to a proper award of counsel fees 

. . . [is] reasonableness under all of the circumstances 

revealed by the record.'" Westbrook v. Westbrook, 5 Va. App. 

446, 458, 364 S.E.2d 523, 530 (1988) (citation omitted). Father 

had reasonable grounds for this appeal. Therefore, mother's 

request is denied. See Gayler v. Gayler, 20 Va. App. 83, 87, 

455 S.E.2d 278, 280 (1995). 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed.

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Fitzpatrick, C.J., concurring, in part, and dissenting, in part. 

 I concur with the opinion in matters other than the 

attorney's fee issue. I would remand for an assessment of 

partial attorney's fees incurred in this appeal as father did 

not have reasonable grounds for all of his issues. 

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