COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Bumgardner 

Argued at Alexandria, Virginia 

KEITH D. PARISH 

 OPINION BY 

v. Record No. 0818-97-4 JUDGE ROSEMARIE ANNUNZIATA 

 FEBRUARY 17, 1998 

MARY BETH SPAULDING 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Richard B. Potter, Judge 

 Raymond B. Benzinger (Benzinger & Benzinger, 

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

 (Mary Beth Spaulding, pro se, on brief). 

 Keith D. Parish (father) appeals the decision of the circuit 

court maintaining custody of Keith D. Parish, Jr. and Samantha N. 

Parish (the children) with Mary Beth Spaulding (mother). Father 

contends mother is precluded from seeking a modification of the 

earlier decree regarding custody and the relocation of the 

children on the basis of changed circumstances because she 

unilaterally, and contrary to court orders, created the change of 

circumstances. We disagree and affirm. 

 On December 15, 1995, when both mother and father lived in 

Virginia, the circuit court entered an order awarding sole 

custody of the children to mother and establishing visitation 

rights for father. In the summer of 1996, mother submitted 

several documents to the court which asked the court to note her 

change of address, modify father's visitation rights, and allow 

her to move to Indiana. Although the circuit court denied 
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mother's petitions for procedural reasons and never reached the 

merits of the issues, mother moved to Indiana with her husband 

and the children. Among numerous other motions, father filed a 

motion for emergency change of custody. 

 I. 

Change in Custody 

 In determining whether a change in custody is warranted, the 

trial court applies a two-part test: (1) whether a change of 

circumstances has occurred since the most recent custody award; 

and (2) whether such a change would be in the best interests of 

the child. Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 

(1983). In order "to modify a decree denying a custodial parent 

permission to remove the child from the state,1 a similar 

standard must be applied; the court must find (1) a material 

change in circumstance since the initial decree; and (2) that 

relocation would be in the child's best interests." Bostick v. 

Bostick-Bennett, 23 Va. App. 527, 535, 478 S.E.2d 319, 323 (1996) 

(footnote added). 

 

 1"A court may forbid a custodial parent from removing a child 

from the state without the court's permission, or it may permit 

the child to be removed from the state." Scinaldi v. Scinaldi, 2 

Va. App. 571, 573, 347 S.E.2d 149, 150 (1986) (citing, inter

alia, Carpenter v. Carpenter, 220 Va. 299, 302, 257 S.E.2d 845, 

848 (1979)). The trial court addressed this question as one 

factor in its determination of the best interests of the 

children. 
 3 

 A. 

 Change in Circumstances Created by Voluntary Act 

 Father argues that, because mother created the change of 

circumstances upon which she relies in support of her petition 

for modification of visitation and relocation of the children, 

the trial court erred in finding such change had occurred. In 

addressing father's claim that mother cannot rely on a changed 

circumstance which she created, we are guided by the principles 

developed in earlier decisions. In Simmons v. Simmons, 1 Va. 

App. 358, 362, 339 S.E.2d 198, 200 (1986), we upheld a trial 

court's decision to allow a parent to move to Florida following a 

determination that the move would be in the best interests of the 

child. Although we did not specifically address the changed 

circumstances requirement, we approved the court's examination of 

the best interests of the child notwithstanding the fact that the 

parent voluntarily chose to move. Our decision in Scinaldi v. 

Scinaldi, 2 Va. App. 571, 572-73, 347 S.E.2d 149, 150 (1986), as 

further clarified in Hughes v. Gentry, 18 Va. App. 318, 322, 443 

S.E.2d 448, 451 (1994), supports our conclusion that a change in 

the location of the children effected by the petitioning parent 

does not bar the jurisdictional finding that a material change of 

circumstances has taken place. In Scinaldi, 2 Va. App. at 

576-77, 347 S.E.2d at 152, after the custodial parent moved from 

Virginia, the non-custodial parent obtained an order directing 

her to return the children to Virginia and enjoining her from 
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moving the children. We reversed, holding that the trial court's 

order was unsupported by the evidence. The "inescapable 

inference of Scinaldi is that whenever the evidence suggests 

. . . that the relocation of the custodial parent may not be in 

the child's best interests, the relocation of the custodial 

parent constitutes a material change in circumstances." Hughes, 

18 Va. App. at 322, 443 S.E.2d at 451. It follows from these 

decisions that the custodial parent's voluntary relocation of the 

children does not bar that parent from thereafter seeking 

modification of the trial court's order of custody; nor does the 

custodial parent's action bar a motion seeking approval of the 

relocation retroactively. 

 Furthermore, in a court's decision as to the propriety of 

relocating the children or the modification of custody, "the 

welfare of the children is of primary and paramount importance." 

Simmons, 1 Va. App. at 361, 339 S.E.2d at 199. If the court 

could not retroactively approve a move or order a change in 

custody after an unapproved relocation has taken place, having 

before it evidence that the relocation of the children or the 

modification of custody would be in the best interests of the 

children, the court would be required to act contrary to the best 

interests of the children. We decline to establish such a rule. 

 In further support of his argument that mother is barred 

from showing "a change of circumstances," father asserts the 

doctrine of estoppel. Father did not raise this argument in the 
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trial court and is barred from asserting it here. Rule 5A:18. 

Even assuming the issue of estoppel is properly before us, the 

claim is without merit. Husband acknowledges that estoppel 

requires a representation, reliance, a change of position, and 

detriment, but the record contains no evidence which proves the 

required elements. Accordingly, we find mother's actions do not 

act as a bar to establishing a change in circumstances. 

 B. 

Finding of Changed Circumstances 

 We hold that the trial court's finding of changed 

circumstances was not plainly wrong or unsupported by the 

evidence. "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." Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 

651 (1986). 

 "Changed circumstances" is a broad concept and incorporates 

a broad range of positive and negative developments in the lives 

of the children. Keel, 225 Va. at 611-12, 303 S.E.2d at 921. 

The purpose of the changed circumstances requirement is to avoid 

the bar on relitigation that would otherwise be imposed by res

judicata. Hiner v. Hadeed, 15 Va. App. 575, 580, 425 S.E.2d 811, 

814 (1993) ("In the absence of a material change in circumstance, 

reconsideration . . . would be barred by principles of res

judicata."). The circuit court found "significant changes in the 
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circumstances since the last order of this Court." This finding 

is supported by the evidence, introduced by both parties, that 

mother had moved to Indiana. See Hughes, 18 Va. App. at 322, 443 

S.E.2d at 451. 

 C. 

Best Interests of the Children 

 After making the threshold finding of a change of 

circumstances with respect to both the custody and relocation 

issues, the trial court determined that the best interests of the 

children required that they remain in the sole custody of mother. 

 In support of its finding, the court stated: 

 1) that she is now and has always been the 

primary care giver for the two children; 2) 

she offers the most stable home for the two 

children and the one that would offer the 

best opportunities for the growth and 

development of the children; 3) she has a 

good relationship with the children, as well, 

of course, as the new children by her second 

marriage; 4) she does in fact have a 

relationship and the children have a 

relationship with the new children of the 

second marriage; 5) she offers perhaps the 

most normal environment in the sense of a 

mother and a father being in the same 

household, that is, an adult male and female 

to raise the children; 6) this offers the 

opportunity, as well, to end the 

litigation . . . . 

 

 The court specifically found that the move to Indiana was in 

the best interests of the children. In support of its finding, 

the court stated: 

 First of all, the move to Indiana offered 

economic stability in the sense that Ms. 

Spaulding found herself in economic distress. 

 It offered an opportunity to live in Indiana 
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in a home that was rent-free, not unlike the 

same situation Mr. Parish lives in here in 

Virginia. Number 2, it offers economic 

stability, in that [mother] was in fact 

unemployed and [mother's] new husband lost 

his job in Virginia and needed to move to 

find full employment and so moved to Indiana. 

 It offered some economic stability based on 

the fact that [father] in this case was not 

paying child support as ordered by the Court. 

 Number four, in terms of an educational 

opportunity, it offered [mother] an 

opportunity, together with her new husband, 

for additional schooling. Number 5, in terms 

of educational opportunities for the 

children, the transfer of the children was 

made in the summertime so as not to interfere 

with the schooling of the children and did 

not, in fact, interfere with that schooling. 

 Number 6, it offered some emotional 

stability to the children. Mr. Spaulding was 

allowed to return and address the issues of 

visitation and child support that he had 

outstanding in Indiana. And that offered 

some stability to their family environment. 

 

 On appeal from an order of child custody, we view the 

evidence in the light most favorable to mother, the prevailing 

party below. Wilson v. Wilson, 12 Va. App. 1251, 1254, 408 

S.E.2d 576, 578 (1991) (citing Simmons, 1 Va. App. at 361, 339 

S.E.2d at 199). The parties presented only their own testimony 

on the issues; thus, the court's decision was necessarily based 

primarily on its evaluation of the parties' credibility. It is 

well settled that issues of credibility and the weight of the 

evidence are within the unique province of the trier of fact. 

This Court will not substitute its judgment for the trial court's 

determination unless we find that the testimony relied upon by 

the trial court is inherently incredible. Richardson v. 
 8 

Richardson, 242 Va. 242, 246, 409 S.E.2d 148, 151 (1991). The 

mother's testimony was not inherently incredible and supports the 

findings of the court. 

 Finally, we reject father's argument that, in determining 

whether the relocation was in the best interests of the children, 

the court erred in considering the best interests of mother 

rather than the children. It is true that some of the factors 

considered by the court, such as mother's educational 

opportunities, relate more to mother's welfare than to the 

specific welfare of the children. In Simmons, 1 Va. App. at 362, 

339 S.E.2d at 200, however, we cited similar factors, including a 

stable home life and solid financial situation, as reflecting on 

the children's interest in a "stable and loving environment." 

Viewing the evidence in its totality, we find no abuse of 

discretion in the court's evaluation of the evidence and its 

determination of the best interests of the children. 

 II. 

Enforcement of Orders 

 Father argues the trial court denied him due process by 

failing to enforce the juvenile court's order enjoining mother 

from removing the children from the Commonwealth. He further 

contends the juvenile and circuit courts' failure to enforce the 

order effected an improper modification of the order. We 

disagree with both claims. 

 On December 15, 1995, the circuit court entered an order 
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awarding sole custody of the children to mother, establishing 

visitation for father, and requiring "any party intending to 

change residence giving the other party and the Court at least 30 

days' [sic] advance written notice of any intended change of 

address, including postal zip code." On June 12, 1996, mother, 

the sole custodian of the children, filed a notice of change of 

address, although the notice did not list her new address. On 

July 2, 1996, mother appeared before the circuit court, asking 

the court to modify the visitation order and approve her move to 

Indiana. The court ruled that it did not have jurisdiction to 

hear mother's petition, in part because an appeal was pending in 

this Court. On July 2, mother filed another notice of change of 

address, which listed two "probable addresses." Although the 

circuit court never ruled that mother could leave the 

Commonwealth, she nevertheless moved to Indiana with her husband 

and the children. Father filed a series of motions to enforce 

the visitation provisions of the December 15, 1995 decree. 

 Father does not claim that the juvenile and circuit courts 

erred in ruling on the merits of his claims, but only that the 

courts denied him due process by failing to enforce earlier 

orders. Due process requires that, before a court may deprive a 

party of a property or liberty interest, the party must receive 

notice and the opportunity to be heard. Williams v. Virginia 

Elec. & Power Co., 18 Va. App. 569, 576-77 and n.5, 445 S.E.2d 

693, 698 and n.5 (1994). Father received both notice of matters 
 10 

brought before the trial court and the opportunity to be heard at 

length, both on his own requests for relief and those of the 

mother. Accordingly, we find that the courts did not deny 

father's right to due process. 

 Furthermore, a court's decision of whether and how to 

enforce an order is reviewed only for an abuse of discretion. 

Wells v. Wells, 12 Va. App. 31, 36, 401 S.E.2d 893, 894 (1991). 

Our review of the record reveals that the courts were responsive 

to each of father's requests for relief and that father's claims 

are without merit.2

 Accordingly, we find the courts did not 

abuse their discretion by failing to enforce their orders. 

 Finally, we reject father's argument that a court's failure 

to enforce its orders improperly effected a modification of its 

order while on appeal. He cites no authority for the espoused 

proposition and we find none. 

 

 2On July 19, 1996, father moved for an emergency restraining 

order, which was granted by the juvenile court on July 26. On 

July 26, 1996, father moved for an order requiring mother to 

state the location and phone number of the children; the court 

required mother to do so on August 16, 1996. On September 9, 

1996, father filed an emergency petition for a change in custody; 

the circuit court denied father's petition for change of custody 

on the basis that mother was not given proper notice and that the 

custody issue was before the Court of Appeals on September 27. 

On September 20, 1996, the court issued a Rule to Show Cause for 

violation of the December 15, 1995 order. The court subsequently 

determined that mother was not in violation of the order and 

dismissed the Rule. On October 24, 1996, and November 15, 1996, 

father moved for an order requiring cooperation with the 

visitation provisions of the December 15, 1995 order; the court 

ordered mother to do so on November 27, 1996. On December 18, 

1996, father moved for an order to show cause against mother. On 

January 14, 1997, the court stated that it would not award any 

sanctions against mother. 
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 III. 

Denial of Motion to Withdraw 

 After father appealed the child support award entered by the 

juvenile court to the circuit court, the circuit court entered an 

order requiring the parties to set an early date to address the 

modification of the child custody, support, and visitation 

issues. Father argues that the trial court erred in denying his 

motion to withdraw his appeal regarding child support. 

 In denying father's motion to withdraw his appeal, the trial 

court cited as reasons for its decision, judicial economy, 

prejudice to mother, and the parties' nine cases in the circuit 

court over the last three years. In a subsequent hearing on the 

record, the court explained that the nine circuit court cases 

filed by the parties, as well as two appeals to this Court and 

numerous juvenile court cases, had separated the issues, and that 

"it's time for these matters to really come to a head." On its 

own motion, the court consolidated the pending circuit court 

cases for a hearing on January 9, 1997. 

 Father argues that the effect of the court's denial of his 

motion to withdraw was that he was allowed neither time to 

conduct sufficient discovery nor a continuance to prepare his 

case. We find no abuse of discretion in the court's denial of 

father's motion to withdraw his appeal and to bring this epic 

case to a close. As the court observed, the numerous separate 

cases resulted in a fragmentation of the issues and an incomplete 
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adjudication of the matters before the court. By denying 

father's motion to withdraw his appeal, the court was able to 

consolidate the pending cases and adjudicate all pending issues. 

 Furthermore, father fails to demonstrate how he was prejudiced 

by the court's order to proceed with the case in circuit court. 

He claims prejudice on the ground that he needed mother's updated 

financial information to prepare for trial. The record does not 

reveal, however, that father filed a discovery request for 

financial information or any other document requesting such 

information. Moreover, he fails to demonstrate how the court's 

decision impacted or restricted his cross-examination of mother 

and fails to cite any other evidence in the record that shows he 

could not properly prepare for trial. Finally, he makes no claim 

of error regarding the amount of support awarded by the circuit 

court. 

 Accordingly, for the reasons stated in this opinion, we 

affirm. 

 Affirmed.