COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Lemons 

EZZAT M. ZEIN 

 MEMORANDUM OPINION*

v. Record No. 0679-98-4 PER CURIAM 

 MAY 4, 1999 

NORA ZEIN BURGAN 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Stanley P. Klein, Judge 

(Ezzat M. Zein, pro se, on brief). 

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

 Ezzat M. Zein appeals the decision of the circuit court 

modifying his visitation with his children and deciding other 

issues. Zein raises eleven questions on appeal, but only four 

distinct issues. As summarized, Zein contends that the trial 

court erred by (1) changing his visitation without sufficient 

evidence that there was a material change in circumstances or 

that it was in the best interests of the children; (2) failing 

to find that Zein has custody of the children for 118 days a 

year; (3) failing to impute sufficient income to his former 

wife, Nora Zein Burgan; and (4) failing to award husband 

attorney’s fees and court costs. Upon reviewing the record and 

briefs of the parties, we conclude that this appeal is without 

 

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

this opinion is not designated for publication.
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merit. Accordingly, we summarily affirm the decision of the 

trial court. See Rule 5A:27. 

Modification of Visitation

 Zein contends that the trial court erred when it ruled that 

Zein’s visitation with the children would end on Sunday evenings 

rather than Monday mornings. We find no error in the trial 

court’s decision. 

 “In matters concerning custody and visitation, the welfare 

and best interests of the child are the ‘primary, paramount, and 

controlling considerations.’” Kogon v. Ulerick, 12 Va. App. 

595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). The 

trial court is vested with broad discretion to make the 

decisions necessary to safeguard and promote the child’s best 

interests, and its decision will not be set aside unless plainly 

wrong or without evidence to support it. See Farley v. Farley, 

9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990). When 

considering a modification of visitation, a trial court applies 

a two-part test to determine “(1) whether there has been a 

[material] change of circumstances since the most recent . . . 

award; and (2) whether a change . . . would be in the best 

interests of the child.” Visikides v. Derr, 3 Va. App. 69, 70, 

348 S.E.2d 40, 41 (1986). 

 The trial court denied Burgan’s motion to modify legal 

custody. However, based upon evidence heard during an ore tenus

hearing, including an in camera discussion with the parties’ 
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children, the trial court ruled that it would change the current 

visitation schedule to have the children returned to the primary 

custodian, Burgan, by 7:30 p.m. on Sunday nights. 

I believe that that is an unnecessary 

disruption for the children. They then have 

to take clothes for Friday night, all day 

Saturday, Sunday and for school on Monday. 

And I realize the kids have clothes over at 

[Zein’s]. But I don’t believe at this point 

in time that it’s in the children’s best 

interest to have to sleep over at dad’s on 

those Sunday nights. 

 Under Code § 20-108, the trial court has authority to 

modify visitation “on its own motion . . . as the circumstances 

of the parents and the benefit of the children may require.” 

The visitation schedule was established by order entered 

December 9, 1994, more than four years earlier. Under the 

current circumstances, the trial court found it to be in the 

best interests of the children to modify visitation. Its 

reasoning was sound, and focused on the children’s benefit. We 

find no error in the trial court’s decision to modify 

visitation. 

Calculation of Child Support

 Zein contends that the trial court erred in its calculation 

of child support because it failed to follow the provisions for 

shared custody. See Code § 20-108.2(G)(3). Under Ewing v. 

Ewing, 21 Va. App. 34, 37, 461 S.E.2d 417, 418 (1995) (en banc), 

a “day” is defined as “any continuous twenty-four hour period,” 

and does not include periods when the child “‘is attending 
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school, is placed in non-parent day care, or placed with a third 

party.’” Despite Burgan’s testimony at trial that Zein had the 

children for 118 days, the record demonstrates that Zein does 

not have more than 110 days of custody, as “day” is defined 

under the statute. Therefore, the trial court did not err in 

its calculation of child support. 

Imputation of Income

 Zein also contends that the trial court erred by 

calculating child support based upon Burgan’s testimony that she 

earned only $11,000 in income. Burgan testified that she was 

working full time, that her income came solely from Events 

Unlimited, and that she continued to operate Samadi Sweets 

without profit. The trial court believed Burgan’s testimony, 

and relied upon her testimony to reduce the income imputed to 

Zein. Evidence supports the trial court’s finding as to 

Burgan’s income. 

Attorney’s Fees and Costs

 Finally, Zein contends that the trial court erred by 

failing to award him attorney’s fees and costs. An award of 

attorney’s fees is a matter submitted to the sound discretion of 

the trial court and is reviewable on appeal only for an abuse of 

discretion. See Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 

554, 558 (1987). The key to a proper award of counsel fees is 

reasonableness under all the circumstances. See McGinnis v. 

McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). 
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 The trial judge noted that “I have spent at least two or 

three times as much time on this case as I have for any other case 

that I presided over during my tenure on the bench.” In the final 

order, the court required that 

no further hearings are to be noticed by 

either party. All proposed hearing notices 

should be transmitted to the chambers of the 

undersigned judge with a proposed notice 

praecipe and cover letter, and that after 

review by the Court, the hearing may be 

noticed if permission is given by the Court. 

Zein appeared pro se at the hearings below, and therefore 

incurred no attorney’s fees in connection with the proceeding 

from which this appeal is taken. Moreover, the trial court 

directed both parties to limit future litigation. We find no 

abuse of discretion in the trial court’s denial of attorney’s fees 

or costs to Zein. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

Affirmed.