COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Lemons 

NORA H. BURGAN 

 MEMORANDUM OPINION*

v. Record Nos. 0720-98-4 and 1417-98-4 PER CURIAM 

 MAY 4, 1999 

EZZAT ZEIN 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Stanley P. Klein, Judge 

(Nora H. Burgan, pro se, on brief). 

No brief for appellee. 

 In these cases, Nora H. Burgan appeals the decision of the 

circuit court denying her motion for sole custody and reducing 

the amount of income imputed to Ezzat Zein. Burgan contends 

that the trial court erred by (1) retaining joint custody 

despite evidence that Zein assaulted her; (2) retaining joint 

custody after failing to find that Zein medically neglected and 

psychologically abused the parties’ children; and (3) imputing 

less income to Zein. Upon reviewing the record and opening 

brief, we conclude that these appeals are without merit. 

Accordingly, we summarily affirm the decision of the trial 

court. See Rule 5A:27. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication.
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Procedural History

 Burgan filed a motion to consolidate these cases. For the 

reasons detailed below, we grant Burgan’s motion. 

 Pursuant to Code § 8.01-675.3, a notice of appeal to the 

Court of Appeals “shall be filed within thirty days from the 

date of any final judgment order, decree or conviction. When an 

appeal from an interlocutory decree or order is permitted, the 

appeal shall be filed within thirty days from the date of such 

decree or order . . . .” 

 From December 1, 1997 through May 22, 1998, the trial court 

issued several rulings from the bench and entered several orders 

in this matter. The trial judge ruled on custody from the bench 

on December 1, 1997. Burgan filed a motion for reconsideration 

on January 22, 1998. While issuing a ruling on child support 

from the bench during the January 23, 1998 hearing, the trial 

judge noted that “I’ve heard the custody determination and I’ve 

made my ruling subject to any appeal that either of the parties 

may file.” The order denying Burgan’s motion to change custody 

was entered February 18, 1998. On March 27, 1998, Burgan filed 

a Counter Notice of Appeal, referencing a March 13, 1998 order 

of the trial court. No order was entered on March 13, 1998, 

although the trial court issued an opinion letter on that date. 

 By order entered May 22, 1998, the trial court entered a 

final order, setting child support and denying Burgan’s motion 
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for reconsideration. Burgan filed a second notice of appeal on 

June 19, 1998, setting out the identical issues contained in her 

Counter Notice of Appeal. 

 Our review of the record indicates that the final 

appealable order in this matter was entered on May 22, 1998. 

The appeal in Record No. 1417-98-4 was timely filed within 

thirty days of this order. Because the issues raised in Record 

Nos. 0720-98-4 and 1417-98-4 are identical, we grant Burgan’s 

motion to consolidate these appeals. 

Denial of Motion to Modify Custody

 Burgan contends that the trial court erred by failing to 

modify the current arrangement of joint legal custody. In 

support of her motion, Burgan alleged to the trial court that 

Zein assaulted her in the children’s presence and that Zein 

medically neglected and psychologically abused the parties’ 

children. 

 The trial court may “revise and alter 

such decree concerning the care, custody and 

maintenance of the children and make a new 

decree concerning the same, as the 

circumstances of the parents and the benefit 

of the children may require.” Code 

§ 20-108. In determining whether a change 

in custody is warranted, the trial court 

applies a two-part test: (1) whether there 

has been a change of circumstances since the 

most recent custody award; and (2) whether 

such a change would be in the best interests 

of the child. On appeal, we review the 

evidence in the light most favorable to the 

prevailing party below. “The trial court’s 
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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). 

 The trial judge noted that he had based his decision upon 

his credibility determinations, and in light of what was in the 

best interests of the children. Based upon the testimony 

received at the ore tenus hearing, the trial judge found Zein’s 

testimony to be more credible regarding the circumstances 

surrounding Burgan’s allegations. The trial judge also noted 

“nothing that I’ve heard . . . convinces me by a preponderance 

of the evidence that stripping this father of his title as being 

a co-legal custodian is the best interest of the children.” 

 Under Virginia law, lack of mutuality of parties prevents a 

prior criminal conviction from precluding a subsequent civil 

action. See, e.g., Selected Risks Ins. Co. v. Dean, 233 Va. 

260, 355 S.E.2d 579 (1987); Norfolk and Western Ry. Co. v. 

Bailey, 221 Va. 638, 272 S.E.2d 217 (1980). Therefore, the 

trial court was not required to find Zein’s 1996 conviction for 

assault binding as to Burgan’s current allegations. 

 Similarly, Burgan contended below that the medical evidence 

supported her claim that Zein abused the children. However, the 

trial court found that the documentary and testamentary evidence 

did not support Burgan’s claim that Zein was guilty of abusing 
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the children by denying them medical treatment or subjecting 

them to psychological abuse. 

 Based upon the testimony, the trial judge’s conversation in

camera with the children, and his extensive knowledge of the 

parties over the multiple hearings in the past, he found 

insufficient evidence to support a finding that Zein continued 

to assault Burgan or abuse the children. The trial court’s 

findings were supported by the evidence. Therefore, we affirm 

the trial court’s denial of Burgan’s motion to modify custody. 

Imputation of Income

 Based upon the evidence produced by the parties, the trial 

court found that there was a material change in circumstances 

warranting a reduction in child support. Previously, the trial 

court imputed $75,000 in annual income to Zein, based upon the 

evidence that he voluntarily walked away from the parties’ 

business known as “Samadi Sweets.” That business was now 

operated by Burgan, who testified that she purchased the 

business in August 1996. Burgan also testified that she was 

unable to draw a salary from the business because it was making 

no money. While Burgan contended that Zein sabotaged the 

business, the unrefuted evidence concerning the business’ 

current profits supports the trial court’s finding. 

 The trial court attributed $3,500 in monthly income to 

Zein, based upon a representation made by Zein’s former attorney 
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to the trial court. Because the trial court’s decision is 

supported by evidence, we find no error. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

Affirmed.