COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

JAMES RICHARD BOYLES 

v. Record No. 2050-95-1 MEMORANDUM OPINION*

 PER CURIAM 

SELINA M. BOYLES APRIL 30, 1996 

 FROM THE CIRCUIT COURT OF 

THE CITY OF VIRGINIA BEACH 

A. Bonwill Shockley, Judge 

 (James R. Boyles, pro se, on brief). 

 No brief for appellee. 

 James R. Boyles (father) appeals the decision of the circuit 

court (a) granting the motion of Selina M. Boyles (mother) to 

move from the Virginia Beach area to Charlottesville, and (b) 

denying father's injunction to bar the move. Father raises the 

following issues on appeal: 

 (1) whether the trial court abused its 

discretion by failing to determine 

if the proposed move was in the 

best interests of the children; 

 (2) whether the trial court abused its 

discretion by failing to apply a 

material change in circumstances 

test; 

 (3) whether the trial court abused its 

discretion by not allowing father 

to present all of his evidence; 

 (4) whether the trial court abused its 

discretion by denying father's 

motion to rehear; and 

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

designated for publication. 
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 (5) whether the trial court abused its 

discretion by modifying the 

parties' contract. 

Upon reviewing the record and opening brief, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm 

the decision of the trial court. Rule 5A:27. 

 The decision of the trial court is presumed to be correct 

and father bears the burden to prove by the record that the trial 

court erred. 

 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. It is appropriate that this be the rule 

governing our review of appeals because the 

trial judge was in a position to see and hear 

the witnesses, and to closely examine the 

evidence. As such, his findings are entitled 

to an appropriate degree of respect. 

Simmons v. Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199 

(1986). Here, evidence of the proceedings before the trial court 

is contained in the written statement of facts, composed of 

father's proposed statement and mother's supplementary objections 

and additions. We review father's contentions based upon the 

record and the written statement of facts.1

 Under the terms of the parties' Stipulation and Agreement, 

incorporated into the November 9, 1994 court order, mother agreed 

 

 1 Father's opening brief contains allegations referring to 

events which are not part of the record on appeal and thus cannot 

be considered by this Court. Rule 5A:7. 
 3 

"so long as she has custody . . . [to] live within a reasonable 

commuting distance of [father] so as not to cause undue hardship 

upon [father], regarding the travel time or expenses necessary to 

effect the aforementioned visitation." In the hearing on 

mother's motion to move to Charlottesville from the Virginia 

Beach area, the trial court noted that mother's relocation was 

barred under the terms of the Agreement. The court then required 

mother to present evidence supporting the move. Mother testified 

that she was moving to an area where she had siblings and family 

support. Mother presented evidence showing that father continued 

to contact and harass her, despite previous court orders 

requiring no contact. Mother also presented evidence that 

father's derogatory comments to the children about mother were 

found to constitute mental child abuse by the Virginia Beach 

Department of Social Services. The trial court granted mother's 

motion. 

Best Interests of Children

 Father contends the trial court abused its discretion by 

allowing mother's relocation with the children without 

considering whether the move was in the best interests of the 

children. "It is well settled in Virginia that the best 

interests of the children controls the issue of a change of 

custody or the issue of a custodial parent moving the children to 

another state." Simmons, 1 Va. App. at 362, 339 S.E.2d at 200. 

Although the move in this instance was intrastate, the concerns 
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raised by father were identical to those raised in an interstate 

context. 

 The court's order contains no express recitation that the 

move was in the best interests of the children. However, the 

record indicates that there was credible evidence from which the 

trial court could conclude that mother's move did promote the 

children's best interests. Father's visitation rights had 

previously been limited. By order dated May 19, 1995, the trial 

court restored father's visitation rights, subject to the 

requirement that father's mother or sister supervise visitation 

at all times. Both parties were enjoined from "subjecting the 

children to derogatory remarks concerning the parties or other 

family members; . . . and from questioning the children regarding 

the activities of either parent." The record supports the 

conclusion that father harassed mother and that his derisive 

comments about her to the children rose to the level of child 

abuse. Mother's motion indicated that father's actions had made 

it "impossible for her to remain in this geographic area and live 

her life with any modicum of peace and privacy." Cards and 

letters introduced by mother at the hearing demonstrated father's 

continued contacts with mother in contravention of previous court 

orders. 

 The court required mother to drive the children to Norfolk 

every other weekend in order to facilitate father's regular 

visitation. Father was required to return the children to 
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Charlottesville on Sunday nights. This arrangement imposed 

additional travel time and accompanying expense on both parties, 

although the visitation schedule was left substantially 

unchanged. While father alleges that he will lose over one 

hundred days of visitation annually, the record indicates his 

visitation rights had been curtailed previously due to his 

harassment of mother and his inclusion of the children in that 

harassment. 

 [Q]uestions of custody and removal from the 

noncustodial parent's state of residency 

involve a balancing of interests. More often 

than not there are advantages and detriments 

on both sides of the issue. A trial court's 

role is to weigh those concerns and 

conscientiously seek the solution that serves 

the best interests of the children. 

Id. at 364, 339 S.E.2d at 201-02. While this move does not take 

the children from father's home state, the trial court was faced 

with a similar balancing of concerns. Credible evidence supports 

the conclusion that mother's relocation would separate the 

parents without harming father's relationship with the children 

and that the result would promote the children's best interests. 

 Therefore, we do not find an abuse of discretion on the part of 

the trial court. 

Material Change in Circumstances

 Father alleges that the trial court failed to apply a 

material change in circumstances test before allowing mother to 

move. "[W]henever the evidence suggests . . . that the 

relocation of the custodial parent may not be in the child's best 
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interests, the relocation of the custodial parent constitutes a 

material change of circumstances." Hughes v. Gentry, 18 Va. App. 

318, 322, 443 S.E.2d 448, 451 (1994). A material change in 

circumstances may warrant a reexamination of current custody or 

support arrangements. Id.

 The evidence indicated that mother's relocation was in the 

best interests of the children. Because mother was the custodial 

parent and because the court determined that the move was in the 

children's best interests, we find no error in the failure of the 

trial court to specifically articulate whether the relocation 

constituted a material change of circumstances warranting a 

reexamination of custody. 

Presentation of Evidence

 Father contends that he was not allowed to present all his 

evidence at the August 4, 1995 hearing. The written statement of 

facts does not support father's contention. Moreover, the 

admission of evidence is a matter committed to the discretion of 

the trial court and the court's decision will not be reversed in 

the absence of an abuse of its discretion. Logan v. Fairfax 

County Dep't of Human Dev., 13 Va. App. 123, 132, 409 S.E.2d 460, 

465 (1991). 

 Similarly, father contends the trial court abused its 

discretion by refusing to hear evidence in support of his August 

22, 1995 motion to rehear. "The decision whether to grant or 

deny a rehearing is within the trial court's sound judicial 
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discretion." Hughes, 18 Va. App. at 326, 443 S.E.2d at 453. We 

find no evidence of an abuse of discretion, and thus will defer 

to the trial court's decision because it ruled "with the benefit 

of the credibility determinations made during the prior ore tenus

hearing." Id.

 

Modification of Contract

 Father's last argument is that the trial court's order 

allowing mother to move violated Virginia law because it was 

contrary to the terms of the parties' Stipulation and Agreement. 

 The agreement was incorporated into the court's order. It 

therefore was modifiable by order of the court. Code § 20-109.1. 

 Moreover, the court retains authority over matters pertaining to 

the custody and visitation of children. Code § 20-108. See

Kelley v. Kelley, 248 Va. 295, 298, 440 S.E.2d 55, 56 (1994). As 

such, the agreement did not bar the trial court from entering an 

order approving mother's relocation. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.