COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Elder 

Argued at Richmond, Virginia 

SUSAN M. STEPHENS 

 MEMORANDUM OPINION* BY 

v. Record No. 2218-95-4 JUDGE JAMES W. BENTON, JR. 

 NOVEMBER 19, 1996 

DALE EDWARD WARREN 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Rosemarie Annunziata, Judge 

 Carolyn T. Hogans (Dennis M. Hottell; 

Dennis M. Hottell & Associates, on briefs), 

for appellant. 

 J. Thomas Fromme, II (Sherman & Fromme, on 

brief), for appellee. 

 In this custody dispute, the trial judge denied Susan M. 

Stephens' motions to modify custody and child support and to 

require psychological evaluations and a home study. Stephens 

contends that the trial judge erred by (1) denying her request 

for an independent psychological examination of the child, (2) 

refusing to modify custody, (3) refusing to reduce her child 

support obligation, and (4) ordering her to pay a portion of the 

father's attorney's fees. Dale Edward Warren, the father, filed 

a motion to dismiss the appeal on the ground that the mother 

failed to file a complete transcript of the proceedings below. 

Because the excerpts of the transcript that were filed contain 

extensive findings by the trial judge, we consider those excerpts 

 

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

designated for publication. 
- 2 - 

and affirm the judgment. 

 I. 

 The record on appeal proves that at the time of the 

parties' divorce in 1989, the final decree awarded custody of the 

child to the father. In 1994, the mother filed motions seeking 

an immediate modification of custody, a change in support, a 

change in visitation, a psychological evaluation of the child, 

and attorney's fees. The father denied the mother's allegations, 

opposed the motions, and requested an award of his fees. 

Following a hearing, the trial judge denied the mother's motion 

for a psychological evaluation. The mother then withdrew her 

motion for a home study and entered into a consent order with the 

father giving the mother extended visitation during December 

1994. 

 At a later evidentiary hearing, the evidence proved that 

circumstances in the mother's life had changed since the 1989 

divorce. She had remarried, given birth to another child, 

assumed custody of her husband's niece, left her former 

employment, and begun operating a day care center from her home. 

 The mother's income had decreased from approximately $3,235 per 

month to approximately $1,080 per month. 

 The evidence also proved that the child, whose custody was 

at issue, was emotionally stable and had adapted very well to his 

parents' divorce. Based on her finding that the child had a 

uniquely healthy mental state, the trial judge concluded that the 
- 3 - 

father had strong parenting abilities. Specifically, the trial 

judge found that the father actively supported the child's 

relationship with his mother and effectively educated the child. 

 The father testified that he had a total debt of 

approximately $15,000, and that a substantial part of the debt 

was incurred during the parties' marriage. Based on the 

evidence, the trial judge entered a final order denying a change 

in custody, denying a modification of child support, and awarding 

$5,000 in attorney's fees to the father. The mother appealed. 

 II. 

 "Whether to grant the motion [for a psychological evaluation 

of the child] was within the discretion of the trial judge." 

Carrico v. Blevins, 12 Va. App. 47, 51, 402 S.E.2d 235, 238 

(1991). The mother argued that a psychological evaluation was 

"necessary to fully apprise the Court of the current custodial 

situation, and . . . would assist the Court in reaching a 

determination on [the mother's] pending custody motion, and thus 

[it would be] in [the child's] best interest." The trial judge 

found that a psychological evaluation was not needed because 

there were no "true, psychological issues" in the case. The 

trial judge found that the mother had not presented "enough 

[evidence] to suggest to me that the child is significantly 

destabilized or even nearing destabilization in his present 

circumstance." 

 Because the record contains no evidence that a psychological 
- 4 - 

evaluation would provide particular assistance to the trial 

judge, we hold that the trial judge did not abuse her discretion 

in denying the motion. 

 III. 

 To justify a change in custody, a parent must prove two 

elements: (1) that a material change in circumstances has 

occurred, and (2) that a change in custody would be in the 

child's best interests. Keel v. Keel, 225 Va. 606, 611, 303 

S.E.2d 917, 921 (1983). 

 [D]espite changes in circumstances, there can 

be no change in custody unless such change 

will be in the best interests of the 

children. The second prong, then, is clearly 

the most important part of the two-part test. 

 It underscores the importance we place upon 

securing the best interests of children whose 

interests, in the final analysis, must be 

protected by the courts. 

Id. at 612, 303 S.E.2d at 921. The trial judge found that the 

mother proved a material change in circumstances. However, the 

trial judge denied the motion on the grounds that the mother 

failed to prove that a modification of custody would be in the 

child's best interests. 

 When ruling on the best interests of the child, a trial 

judge must "make a rational comparison between the circumstances 

of the two parents as those circumstances affect the children." 

Id. at 613, 303 S.E.2d at 922. In making the comparison, the 

trial judge must determine "which parent is best qualified to 

provide the highest quality of care to the child and which home 
- 5 - 

will provide the child the greatest opportunity to fulfill his or 

her potential." Turner v. Turner, 3 Va. App. 31, 36, 348 S.E.2d 

21, 23 (1986). On appeal, the trial judge's "decision will not 

be set aside unless plainly wrong or without evidence to support 

it." Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 

(1990). 

 The mother argues that the trial judge inappropriately 

emphasized the stability of the child in his current environment 

and, in effect, required that she prove the change was "needed." 

 The Supreme Court has ruled that "although a settled environment 

may have its benefits, it is simply another factor to be 

considered in determining the best interests of the children 

[and] . . . cannot be used to preclude examination of other 

pertinent factors." Keel, 225 Va. at 611, 303 S.E.2d at 920. 

 The record reveals that although the trial judge did 

emphasize that the child "is unusually stable and well-adjusted 

and comfortable," the judge did not allow that factor to preclude 

an analysis of other relevant considerations. For example, the 

judge focused at length on the father's unique parenting 

abilities. The evidence proved that the father actively promoted 

the child's relationship with his mother and her new husband. 

The trial judge also found that the father excelled at educating 

the child in subtle ways and instilled valuable personal and life 

skills. The trial judge found that the father was highly 

motivated to be a good parent. 
- 6 - 

 The trial judge appropriately applied a comparative approach 

and found that, despite the improvements in the mother's 

lifestyle, the father was still most likely to provide the best 

environment for the child. Although the judge did not discredit 

the mother's parenting skills, the judge did attribute the 

child's unique stability and happiness to the father's abilities. 

 Moreover, the trial judge found that the child was 

performing well at school. The judge also expressed concern that 

a change in the child's school would not be in his best interest. 

 Because the trial judge's findings addressed the overall best 

interests of the child and were not plainly wrong, we affirm the 

decision. 

 IV. 

 After the trial judge denied the motion for change in 

custody, the mother sought a reduction in the amount of child 

support she was paying. The mother argues that the trial judge 

erred by refusing to reduce her child support obligation and by 

failing to make the findings required by Code § 20-108.1. We 

disagree. 

 When seeking a modification of child support, the moving 

party must prove that a material change in circumstances occurred 

and that the change justifies altering the support amount. See

Kaplan v. Kaplan, 21 Va. App. 542, 547, 466 S.E.2d 111, 113 

(1996). A trial judge's decision that is based upon evidence at 

an ore tenus hearing "will not be disturbed on appeal unless it 
- 7 - 

is plainly wrong or without evidence in the record to support 

it." Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 

S.E.2d 28, 30 (1989). 

 The evidence revealed that the mother voluntarily terminated 

a job where she earned $3,235 per month and began to operate a 

day care center where she earned approximately $1,080 per month. 

 The trial judge's refusal to modify the child support award is 

supported by the evidence that the mother's change in employment 

was voluntary. Thus, the income reduction was not a material 

change in circumstance that justified a reduction. See Antonelli 

v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991). 

 The only grounds upon which the trial judge could have found 

a material change, therefore, were the additional expenses the 

mother incurred in caring for her new child and her husband's 

niece. Because the mother calculated the expenses of the 

children by including expenses that had not changed due to the 

children, however, the mother's evidence failed to demonstrate 

exactly how much her expenses had increased due to the children. 

 Nevertheless, the trial judge did consider the fact that her 

expenses had increased but declined to modify the support award. 

 The trial judge ruled that in light of the father's 

financial situation, the changes in the mother's life were not 

material and did not warrant a modification of the support award. 

 The evidence proved that the father continued to have 

substantial unpaid debt, most of which was incurred during the 
- 8 - 

marriage. Because the evidence supports that ruling, it is not 

plainly wrong. 

 The mother also argues that the trial judge erred by failing 

to make findings as to the presumptive guideline amount and the 

deviation from that amount. In view of the mother's involuntary 

change in employment and the trial judge's finding of no material 

change in circumstances, the trial judge was not required to make 

the findings otherwise required by the Code. Crabtree v. 

Crabtree, 17 Va. App. 81, 88-89, 435 S.E.2d 883, 888 (1993). 

 V. 

 "The key to a proper award of counsel fees is reasonableness 

under all of the circumstances revealed by the record." 

Ellington v. Ellington, 8 Va. App. 48, 58, 378 S.E.2d 626, 631 

(1989). "An award of attorney fees is discretionary with the 

[trial judge] after considering the circumstances and equities of 

the entire case and is reviewable only for an abuse of 

discretion." Gamer v. Gamer, 16 Va. App. 335, 346, 429 S.E.2d 

618, 626 (1993). 

 The trial judge ruled that although there was a viable 

visitation dispute, "[t]hat doesn't mean that you bring a custody 

case every time you have a visitation issue." The trial judge 

found that the mother's decision to seek a change of custody was 

not reasonable. In addition, the evidence proved that the 

husband was carrying a substantial debt remaining from the 

marriage. Based on these circumstances, the judge ruled that she 
- 9 - 

was "going to consider the fact that neither of these parties has 

a lot of money, but I am going to award $5,000." In light of the 

financial circumstances of the parties and the trial judge's 

finding that the motions were not warranted, we hold that the 

trial judge's decision to award the father a partial sum of 

attorney's fees does not constitute an abuse of discretion. 

 For these reasons, we affirm the judgment. 

 Affirmed.