COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick 

Argued at Richmond, Virginia 

LAURA RENEE DELIBERATO DECAPRI 

v. Record No. 0446-95-2 MEMORANDUM OPINION*

 BY JUDGE SAM W. COLEMAN III 

CHRISTOPHER DAMIEN DECAPRI JANUARY 23, 1996 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 Thomas O. Bondurant, Jr. (Bondurant & Benson, 

 on brief), for appellant. 

 William C. Wood (Michael S. Ewing; Rawlings & 

 Wood, on brief), for appellee. 

 Laura DeCapri appeals from the trial court's order denying 

her petition for sole custody of Brittany DeCapri. She contends 

that the trial court erred in finding that Brittany's best 

interests would not be served by granting the petition for sole 

custody and allowing her to relocate to Cleveland, Ohio with 

Brittany. We hold that the trial court did not err and affirm 

its order. 

 Laura DeCapri and her former husband, Christopher DeCapri, 

were divorced pursuant to a December 31, 1991 final decree of 

divorce. The decree incorporated a settlement agreement that 

gave Laura and Christopher DeCapri joint custody of their 

daughter Brittany. The agreement provided that Laura DeCapri 

would be the custodial parent and exercise primary control and 

 

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

designated for publication. 
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supervision of Brittany. 

 On March 15, 1993, Laura DeCapri filed a petition requesting 

sole custody of Brittany and permission to move Brittany to 

Cleveland. After a hearing, the trial court entered an order 

denying the petition on the ground that it would not be in 

Brittany's best interests to relocate to Cleveland with her 

mother. 

 Laura DeCapri, alleging a "substantial" change in 

circumstances since the hearing on her March 1993 petition, filed 

a second petition on October 27, 1994, again requesting sole 

custody and permission to relocate Brittany to Cleveland. This 

appeal arises from the trial court's order denying the October 

27, 1994 petition. 

 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 of 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). Although the trial court did 

not expressly find a material change in circumstances, the record 

shows that Laura DeCapri had been admitted to a community college 

in Cleveland subsequent to the court having denied her first 

petition for a change in custody. Also, Christopher DeCapri has 

remarried and fathered a child with his current spouse since the 
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last custody determination. Therefore, credible evidence 

supports a finding of a material change in circumstances. Id.

(stating that "[w]hether a change of circumstances exists is a 

factual finding that will not be disturbed on appeal if the 

finding is supported by credible evidence"). 

 Laura DeCapri relies on Gray v. Gray, 228 Va. 696, 698-99, 

324 S.E.2d 677, 678 (1985), Simmons v. Simmons, 1 Va. App. 358, 

364, 339 S.E.2d 198, 201 (1986), and Scinaldi v. Scinaldi, 2 Va. 

App. 571, 576-77, 347 S.E.2d 149, 152 (1986), in support of her 

contention that the trial court erred by finding that it would 

not be in Brittany's best interests to relocate with Laura 

DeCapri to Cleveland. Reliance on these cases is misplaced. 

Although in each case the court allowed the custodial parent to 

relocate to a different state, in all three cases, the burden was 

on the non-custodial parent to prove that it was in the 

children's best interests to prevent the relocation by granting a 

change in custody. Here, the parents have joint custody, and 

Laura DeCapri is seeking a change in custody in order to move 

Brittany to another state. We, therefore, find the facts of this 

case similar to the facts in Carpenter v. Carpenter, 220 Va. 299, 

257 S.E.2d 845 (1979), in which the Supreme Court affirmed the 

trial court's decree denying the custodial parent consent to move 

the children from the Commonwealth to New York. 

 "On appeal, we review the evidence in the light most 
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favorable to the prevailing party below. `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) (citations omitted). 

 Here, as the trial court noted, "[t]he parties went to great 

lengths in establishing a joint custody arrangement," and 

although Laura DeCapri is responsible for the primary custody and 

care of Brittany, Christopher DeCapri has a very close 

relationship with his daughter. Both parents have maintained "an 

active role in the care, education and development of 

[Brittany]." Carpenter, 220 Va. at 302, 257 S.E.2d at 847. For 

instance, in addition to exercising his normal visitation rights 

and talking with Brittany on the telephone every day, Christopher 

DeCapri actively supervises Brittany's progress in school and 

participates in her school activities. 

 Furthermore, Brittany appears to have a good relationship 

with her father's new wife and child, and has friends in her 

father's neighborhood in Richmond. Christopher DeCapri testified 

that he wants "to go to the school plays, [and] help with school 

stuff," and that it would be physically impossible "to do 

everything [he is] doing now" if Brittany was in Cleveland. The 

evidence proves, therefore, unlike the evidence in Scinaldi, that 

the benefits of the relationship between Christopher DeCapri and 
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Brittany cannot be substantially maintained if Brittany is moved 

to Cleveland. Scinaldi, 2 Va. App. at 575, 347 S.E.2d at 151. 

 Laura DeCapri would like to return to college because she 

"need[s] to be financially able to take care of [herself] and 

Brittany in the event that something were to happen to Mr. 

DeCapri, . . . or that he wasn't able to [maintain] two 

families." Although Laura DeCapri concedes that she could pursue 

her education in Richmond, she contends that relocating to 

Cleveland would best serve Brittany's interests because her 

family lives in Cleveland and she would be able to take better 

care of Brittany if she had the financial and moral support of 

her family. Despite the fact that eventually Laura DeCapri might 

better be able to provide financially for Brittany if she could 

pursue her education, the evidence does not show that her ability 

to provide support is impaired by being in Richmond. Moreover, 

Christopher DeCapri has complied with his support obligations, 

and the record does not indicate that the financial support 

provisions of the separation agreement are inadequate. 

Furthermore, Christopher DeCapri testified that he is willing to 

provide day care for Brittany in order for Laura DeCapri to 

pursue her education. 

 By all indications, Brittany is a well-adjusted child who is 

happy and doing well in school. See Carpenter, 220 Va. at 302, 

257 S.E.2d at 847. The trial court's finding that Brittany's 
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best interests would be best served by remaining in the Richmond 

area is not "plainly wrong or without evidence to support it." 

Accordingly, we hold that the trial court did not abuse its 

discretion by refusing to grant Mrs. DeCapri sole custody and 

allow her to relocate to Cleveland with Brittany, and we affirm 

the order. 

Affirmed.