COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

LEWIS H. CLEMENTSON 

 MEMORANDUM OPINION*

v. Record No. 1859-96-2 BY JUDGE MARVIN F. COLE 

 JUNE 24, 1997 

NANCY TAYLOR CLEMENTSON, n/k/a 

 NANCY LLOYD 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 Lawrence D. Diehl for appellant. 

 Thomas Scott Word, III, for appellee. 

 In this child custody cause, the appellant, Lewis H. 

Clementson (father), challenges the sufficiency of the evidence 

to support the trial court's determination that the best 

interests of Elizabeth and Douglas Clementson would not be served 

by transferring their custody to him, the children's father. We 

find no merit to this contention and affirm. 

Facts

 Lewis and Nancy Taylor Clementson, now Nancy Taylor Lloyd, 

(mother) were married on June 25, 1977. They have three 

children: David, born August 2, 1980; Elizabeth, born December 

6, 1982; and Douglas, born May 28, 1987. Father is a practicing 

attorney. Mother is a school teacher. The parties separated and 

mother filed a bill of complaint on August 27, 1990, requesting a 

 

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

designated for publication. 
 2 

divorce on the grounds of cruelty and desertion. She also 

requested spousal support, custody of the children, and equitable 

distribution of the marital property. Father filed an answer 

stating that he wanted the relationship to continue, but, in the 

alternative, he requested custody of the children. 

 On January 2, 1991, the trial court entered a consent order 

granting temporary custody of Elizabeth and Douglas to the mother 

and temporary custody of David to the father. Visitation rights 

were agreed to by the parties. 

 On January 22, 1991, a hearing was held concerning child 

custody, child support, spousal support, and other matters. The 

trial court found it in the best interests of the parties and the 

children that they all submit to medical, psychological and/or 

psychiatric examinations. They were ordered to attend all 

sessions required and to submit to all testings determined 

necessary by Dr. Dennis L. Hawley, a psychologist. Dr. Hawley 

was ordered to prepare a report with recommendations regarding 

custody and visitation of the children. The trial court further 

referred the matter to the Henrico County Department of Social 

Services to conduct a home study of the two homes and to prepare 

a report with recommendations regarding custody and visitation of 

the children. The temporary order entered on January 2, 1991 

addressing child custody was continued in force. 

 On June 5, 1992, the trial court granted a final divorce to 

mother on the ground that the parties had lived separate and 
 3 

apart for one year, commencing December 21, 1990. It affirmed, 

ratified and incorporated by reference into the decree a property 

settlement agreement dated May 28, 1992. The trial court 

declined to make a final determination of custody, child support, 

and visitation and reserved these matters for future 

consideration, and the award previously made was continued in 

force. 

 An ore tenus hearing was held on August 10, 13, and 28, 

1992, on the question of permanent custody and support of the 

children. The record does not contain a transcript of this 

proceeding, but we know that the psychological report and home 

study previously ordered by the court were filed as evidence. 

 Dr. Hawley's evaluation, dated March 26, 1991 and filed with 

the court, included three individual sessions each with father 

and mother, and a full psychological battery of tests on each 

parent and each of the three children. In addition, Dr. Doyle 

Pruitt, a licensed clinical psychologist, saw each of the 

children once individually and all three collectively. 

 Dr. Hawley's report generally was favorable to the mother as 

custodian of all three children. As a result of the emotional 

trauma and upheaval in the family, he thought that it was 

important to keep all the children together. As between the 

parents, he felt that the mother was the least angry and 

vindictive of the two and that the children would fare better 

with the mother. 
 4 

 In a report dated April 18, 1991, the Henrico County 

Department of Social Services made its recommendations. A 

representative from the agency interviewed both parents, visited 

each home, and received additional information from school 

teachers and others. The agency reported that all three children 

should be kept together and recommended that custody should be 

awarded to the mother. 

 A report of Dr. Joseph J. Crowley, Ph.D., clinical 

psychologist, was introduced as an exhibit at the hearing. Dr. 

Crowley became involved on May 12, 1992, when mother's attorney 

referred her to him to help Elizabeth deal with concerns she was 

expressing to mother that she should be dominated by males. In 

addition, Dr. Crowley was asked to make recommendations to the 

trial court regarding custody of the Clementson children. 

Included in his report to the court was his assessment of father, 

his assessment of mother, and his assessment of each of the three 

children. 

 The details contained in Dr. Crowley's report about the 

family are significant. All of the facts and circumstances 

cannot be stated in this opinion. However, his report 

recommended that custody of all three children be awarded to the 

mother. Dr. Crowley reported that, although the father's style 

is more charismatic, engaging and spontaneous, the mother is more 

thoughtful, reflective and less spontaneous, and she has been 

quite successful at maintaining an even hand in regard to the 
 5 

children. Dr. Crowley further reported that the father had 

changed very little over the past year and a half. However, the 

mother had shown substantial change in her own growth and 

development. He stated that she has been successful in pursuing 

her vocational aspirations and has maintained herself as an 

independent, well functioning adult. He concluded that the 

mother was the best suited to be the custodial parent, stating 

that she maintained a sensible and balanced home environment. 

 Based upon the evidence presented on August 10, 13, and 28, 

1992, on November 16, 1992, the trial court entered a decree 

awarding permanent custody of David to father and permanent 

custody of Elizabeth and Douglas to mother. Incidentally, 

counsel for both mother and father asked for entry of the decree. 

 On January 27, 1993, the trial court entered a decree fixing 

child support and visitation rights. In this decree, the trial 

court restated the child custody provisions made in its decree of 

November 16, 1992. 

 Despite the fact that the trial court had finally resolved 

all outstanding issues, problems continued to surface and 

petitions continued to be filed. On March 24, 1993, mother filed 

a petition for suspension of visitation rights, alleging that 

father was continuing to manipulate the children for his own 

purposes, and that he was continuing to hamper and frustrate the 

children's love for her. On June 4, 1993, father filed a motion 

for reduction in child support, and, on the same day, he filed a 
 6 

separate motion for change in custody. On June 9, 1993, mother 

filed a petition for modification of visitation rights to permit 

her to relocate in Alabama. On June 10, 1993, father filed a 

petition to enjoin removal of Elizabeth and Douglas from the 

state. On June 18, 1993, mother filed a motion to quash 

subpoenas served upon her to bring Elizabeth and Douglas to court 

for a hearing scheduled on June 28, 1993. 

 In an order entered on July 8, 1993, the trial court 

disposed of all of the issues. The trial court refused to permit 

relocation of the children to Alabama and decreed that the order 

of January 27, 1993, regarding visitation, custody, and child 

support remain in effect. Father's motions for change of custody 

and reduction of child support were denied, and he was enjoined 

from discussing mother's attempt to move to Alabama with 

Elizabeth. 

 A period of relative calm followed entry of the July 8, 1993 

order. Mother described this as a "happy" period. During the 

1996 spring break, Elizabeth and Douglas spent nine days with 

father. Mother testified that when the children returned home 

from the visitation, there was a specific, observable change in 

the children. Elizabeth came back angry with mother. She gave 

no specifics, but just said she was angry and mad with her. 

Douglas was also upset and mad at mother. Douglas said that 

father had taken him aside to have private talks. In later 

testimony, father denied that he had pushed, coaxed or 
 7 

brainwashed Elizabeth to come live with him. He stated that 

during "one of these more thorough discussions that we had, I 

asked Elizabeth would she like somebody else to talk to about 

this; and she said, 'Yes.'" 

 Father testified that he and Elizabeth together contacted 

Dr. George Bright of the Adolescent Health Center and that they 

saw him on April 8, 1996. Dr. Bright's billing office records 

indicate that an office visit for psychotherapy was also made on 

April 27, 1996. 

 On April 29, 1996, Elizabeth disappeared from home after 

being dropped off at home by her school carpool. On April 30, 

1996, father filed an emergency petition for custody, asking that 

custody of Elizabeth and Douglas be awarded to him. Mother 

answered by filing a petition for suspension of father's 

visitation rights. 

 On May 10, 1996, a hearing was held on these issues. At the 

May 10, 1996 hearing, father called Dr. Bright and Dr. Elouise 

Cobb as expert witnesses. Two friends also testified on his 

behalf. At the conclusion of father's evidence, mother moved the 

trial court to dismiss the petition because a material change in 

circumstances had not been proved. The trial court overruled 

this motion and proceeded to hear the evidence based upon the 

best interests of the children. The trial court entered an order 

on July 2, 1996, denying father's request for a change in the 

custody of Elizabeth and Douglas. This appeal followed. 
 8 

 

 At the May 10, 1996 hearing, Dr. Bright classified his 

practice as adolescent medicine. Dr. Bright testified that 

Elizabeth asked him to have a meeting with her to discuss her 

request for a hearing before a judge to request a change of 

custody from her mother to her father. At the initial stage of 

the meeting, it was disclosed to Dr. Bright that mother was the 

custodial parent. Dr. Bright requested another member of the 

Adolescent Health Center, Dr. Elouise Cobb, a clinical 

psychologist, to join him and asked her if he could proceed with 

the evaluation since father did not have custody. According to 

Dr. Bright, Elizabeth had requested that her mother not be 

contacted. Dr. Bright and Dr. Cobb determined that it was legal 

and ethical for them to proceed.1

 Dr. Bright referred Elizabeth 

to Dr. Cobb who performed a battery of standardized tests and 

rendered a written report, which was introduced in evidence. 

 Dr. Bright was asked to render an opinion on the emotional 

status of Elizabeth. He stated she "is a very anxious young lady 

that shows indications of depression that's been there for a 

period of time." He further testified that she had no other 

mental illness, but that she did have dysthymia. 

 On cross-examination, Dr. Bright admitted that he had not 

spoken to mother because his patient had told him not to do so. 

His file contained reports from Dr. Doyle Pruitt, Dr. Stolberg 

and Dr. Flynn which father had delivered to him, but he had no 

 1We express no opinion on these two issues. 
 9 

knowledge of the reports of Dr. Dennis L. Hawley, the home study 

report of the Henrico County Department of Social Services or the 

extensive report of Dr. Joseph J. Crowley. He did not have any 

transcripts of any of the previous custody hearings upon the 

question of custody that would have informed him of the 

conflicting evidence in this case. He did not contact the school 

teachers to find out how Elizabeth or Douglas were doing in 

school, although he reports that Elizabeth was doing well. His 

report taken from Elizabeth indicates that she participated in 

track and cheerleading, school musicals, and her church choir. 

 Dr. Cobb testified that her report was not intended as a 

custody evaluation. It was intended "to help us understand 

Elizabeth's emotional status and her personal characterization 

that would contribute to understanding her adjustment at that 

time." 

 In her report, Dr. Cobb stated that Elizabeth was a petite, 

attractive young lady, and that she maintained a reserved 

demeanor and a steady smile at all times. Other signs indicated 

that she was anxious. When describing her mother, their 

relationship and specific events in her life at home, Elizabeth 

kept her smile, but her voice took on an angry tone. Her 

language patterns and vocabulary level were mature. Her fine 

motor skills were excellent. In general, Elizabeth's response 

style was thoughtful and evidenced good development of strategy 

for problem solving. 
 10 

 Dr. Cobb testified there were a number of key findings from 

the evaluation data. One was that Elizabeth was an extremely 

intelligent child -- a child of superior intellect. She had some 

areas of extraordinary cognitive ability. Her verbal expressive 

skills were high. She achieved a score that was in the very 

superior range on a measure of social knowledge and practical 

reasoning ability. However, there was a finding of weakness in 

the area of ability to focus her mental activity to concentrate 

and to apply her mental skills in a focused manner. This was far 

below average. 

 Dr. Cobb gave no recommendation as to custody. She 

recommended that the court take another look at the current 

living arrangements. She admitted that she did not know all the 

factors, but suggested that the data that she had indicated that 

the current living situation was contributing to Elizabeth's poor 

adjustment. 

 Mother called as an expert witness Dr. Steven B. Robbins, a 

professor and chair of psychology and professor of psychiatry at 

Virginia Commonwealth University. He is a licensed clinical 

psychologist and has an active private practice. Dr. Robbins had 

reviewed the files of both Dr. Bright and Dr. Cobb. He opined 

that it undermines the credibility of the evaluation to consider 

only one parent. He stated that a psychologist has a 

responsibility to bring all informed parties to the table, 

clarify the rules, and to clarify consent and confidentiality. 
 11 

He also testified that doctors have a duty to check multiple 

sources of information before making a diagnosis. 

 Dr. Robbins testified that, based upon the information 

contained in the files of Dr. Bright and Dr. Cobb, there was no 

evidence of risks or endangerment to Elizabeth. He noted that 

the intake officer at the Adolescent Health Center checked her 

personality as confident. He stated that all three persons from 

the Adolescent Health Center dealing with Elizabeth said she was 

functioning well in school. Socially, she was involved with 

extracurricular activities. Dr. Robbins also testified that 

there was no report that she had been in trouble to warrant the 

diagnosis of dysthymia. It was his opinion that the medical 

records do not support a diagnosis of dysthymia. 

 Mother testified that she married Lawrence Lloyd on June 10, 

1994. She denied that Elizabeth had any sleeping disorder or 

sleep walking problem. She testified that she had no knowledge 

that Elizabeth had gone any nights without sleeping. She denied 

that Elizabeth had any eating disorder. She testified that 

Elizabeth is a healthy eater, she is informed about nutrition, 

and she drinks a lot of milk. Mother stated that, lately, 

Elizabeth has been following the track coach's regimen about 

eating meals prior to track meets. 

 Mother testified that Elizabeth attends Tuckahoe Middle 

School and that she is an active member of the chorus there. She 

participates in musical productions, is a member of the track 
 12 

team, is a cheerleader, is active in church, and she takes part 

in other school activities. Mother presented Elizabeth's report 

card showing all A's, except one B in math, with several 

complimentary comments by her teachers. 

 Mother testified that Elizabeth and Douglas had a good 

relationship with her husband, Lawrence. 

 Lawrence Lloyd testified that Elizabeth "seemed to be a 

happy, normal, well adjusted teenager to [him]. She has lots of 

friends and participates in a lot of activities at school and at 

church." He also stated that "[t]here have been occasions after 

spending lengths of time with her father that she has come home 

in rather strange moods." He opined that after a while she came 

out of them. 

 Lawrence testified that Elizabeth eats like a "normal 

teenager." He stated that she sleeps normally and he observed no 

disfunction in her sleeping habits. 

 Lawrence testified that before Elizabeth went to father's 

home for spring break, there was nothing noteworthy about her 

attitude or emotions. She seemed to be happy and a normal 

person. He testified that when Elizabeth came home after the 

spring break, she was not distressed, but that she was not 

respectful to her mother and was not responsive to her or him. 

 Following the spring break and on the night that Elizabeth 

ran away, (April 29, 1996), Lawrence had a conversation with 

father in front of father's home when he carried David home. 
 13 

Father admitted that he knew that Elizabeth had run away and that 

he had been notified of the incident by a "third party." On this 

occasion, father stated to Lawrence that it would be easy to 

settle the matter. All Lawrence had to do was to convince mother 

that she could end the whole thing by agreeing to transfer 

custody to father. At that time, Lawrence had no knowledge about 

any court hearing. 

 In addition to the run-away on April 29, 1996, father makes 

much of the fact that Elizabeth had run away on two previous 

occasions. In June of 1992, Elizabeth went to the home of her 

paternal grandparents. A custody hearing was scheduled on June 

29, 1992. In March of 1993, she went to a shopping center. A 

custody hearing was scheduled on June 28, 1993. The record shows 

that the only time Elizabeth ran away from home was in 

preparation for a custody hearing. 

Analysis

 In considering a petition to change child custody, a trial 

court applies a two-part test to determine "(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." Visikides v. Derr, 3 Va. App. 

69, 70, 348 S.E.2d 40, 41 (1986). Where both parents are deemed 

to be fit custodians, the trial court is accorded considerable 

latitude in determining the custodial arrangement which will best 

serve the child's future interests. We will not reverse a 
 14 

decision entered pursuant to Code § 20-107.1 unless it is 

apparent that the trial court abused its discretion by failing or 

declining to consider all the enumerated factors. See, e.g., 

Brooker v. Brooker, 218 Va. 12, 13, 235 S.E.2d 309, 310 (1977); 

Bristow v. Bristow, 221 Va. 1, 3, 267 S.E.2d 89, 90 (1980). The 

decision of a trial court shall be upheld on appeal so long as it 

is reasonably supported by substantial, competent, and credible 

evidence. See Canavos v. Canavos, 200 Va. 861, 866, 108 S.E.2d 

359, 363 (1959). "'For purposes of appellate review, a trial 

court's determination is considered to have settled all conflicts 

in the evidence in favor of the prevailing party, and the 

prevailing party's evidence is entitled to all inferences fairly 

deducible therefrom.'" Haase v. Haase, 20 Va. App. 671, 684, 460 

S.E.2d 585, 591 (1995) (citation omitted). "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." Hughes v. Gentry, 18 Va. App. 

318, 321-22, 443 S.E.2d 448, 451 (1994). 

 In this cause, the decision of the trial judge is peculiarly 

entitled to respect because he saw the parties, heard the 

evidence, has been in close contact with the family situation for 

six years, and has had an opportunity to determine the 

credibility of the witnesses and the weight to be accorded their 

testimony. This Court is limited to a review of the written 

record, much of which was not transcribed, and we are handicapped 
 15 

by the absence of the transcripts from numerous hearings held 

before the trial court. 

 The trial court considered the best interests of both 

Elizabeth and Douglas and found that custody should remain with 

mother. The trial court's decision has settled all conflicts in 

the evidence, of which there are many. The trial court's 

decision is entitled to great weight. It is our duty to uphold 

its decision if it is supported by substantial, competent, and 

credible evidence. We find that it is. Accordingly, we find 

that the trial court did not abuse its discretion, and we affirm 

the decree. 

 Affirmed. 

Benton, J., concurring. 

 The record in this custody case is extensive and reflects 

that a high degree of contentiousness exists between the parents. 

 Because the trial judge heard ore tenus conflicting evidence, 

including evidence that clearly supports the decree, we cannot 

say that the trial judge's "determination is not without 

substantial, competent, and credible evidence to support it." 

Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 

(1990). Therefore, I agree that the decree must be affirmed.