COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Agee 

Argued at Alexandria, Virginia 

ROSA L. CHITTUM, LARRY W. CHITTUM, 

 PAMELA CONLEY, F/K/A PAMELA MISKOVSKY AND 

 ROXANNE CULLEN 

 

v. Record No. 0883-02-4 

 

PAULA KAY JOHNSON AND 

 CARLTON CONLEY MEMORANDUM OPINION* BY 

 JUDGE ROSEMARIE ANNUNZIATA 

 DECEMBER 31, 2002 

CARLTON CONLEY 

v. Record No. 0884-02-4 

LARRY CHITTUM, ROSA CHITTUM, 

 PAMELA CONLEY, F/K/A PAMELA MISKOVSKY, 

 ROXANNE CULLEN AND PAULA KAY JOHNSON 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

James W. Haley, Jr., Judge 

 Jon E. Shields (Jon E. Shields, P.C., 

 on brief), for Rosa L. Chittum, Larry W. 

 Chittum, Pamela Conley, f/k/a 

 Pamela Miskovsky and Roxanne Cullen. 

 Paul D. Scanlon for Carlton Conley. 

 Kenneth P. Mergenthal for Paula Kay Johnson. 

 Rosa and Larry Chittum, Pam Miskovsky and Roxanne Cullen 

(collectively the "Chittums")and Carlton Conley appeal the trial 

court's order that merged Conley's visitation with the minor 

 *

 Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
child C.M.J.C. with that of the Chittums, on the following 

grounds: 1) the petition filed by Paula Johnson, seeking 

termination of Conley's visitation, failed to provide sufficient 

notice of the relief sought and ordered by the court, and 

further, the petition failed to allege a material change in 

circumstances, 2) the evidence was insufficient to support a 

finding that Conley's marriage to Miskovsky and relocation to 

Buena Vista constituted a material change in circumstances, 3) 

the evidence was insufficient to establish that a modification 

of visitation was in the best interests of the child, and 4) the 

trial court failed to consider all the factors in Code 

§ 20-124.3 in determining the best interests of the child. For 

the reasons that follow, we reverse. 

Background 

 C.M.J.C. is one of two babies discharged to the wrong 

biological parents from the University of Virginia hospital in 

July 1995. Although Kevin Chittum and Whitney Rogers were 

C.M.J.C's biological parents, the hospital erroneously 

discharged her to Carlton Conley and Paula Johnson.1 Johnson and 

Conley's biological daughter was discharged to Kevin Chittum and 

 

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1

 In July 1998, Conley received the results of a blood test, 

which established he was not the biological father of C.M.J.C. 

Subsequent tests established that Johnson was not the child's 

biological mother. 
Whitney Rogers, both of whom were later killed in a car accident 

in July 1998.2 Kevin Chittum was the son of Rosa and Larry 

Chittum and brother of Pam Miskovsky and Roxanne Cullen. 

 Several court orders granted all the parties visitation 

with C.M.J.C. pursuant to a schedule established by the court. 

On September 21, 1998, the Greene County Juvenile and Domestic 

Relations District Court granted custody of C.M.J.C. to Paula 

Johnson and visitation to Conley. The order set Conley's 

visitation at "every other weekend . . . and on Tuesday and 

Thursday from 8:00 p.m. to 8:30 p.m. . . . [and] other 

visitation as agreed upon." The court issued an order on 

September 2, 1999, amending the previous order and changing 

Conley's visitation to "every other weekend . . . ." 

 On January 21, 2000, the Juvenile and Domestic Relations 

District Court of Stafford County awarded visitation to the 

Chittums, collectively, on the second weekend of every month and 

the second week in July.3 The order further provided: "The 

weekend should be scheduled in odd numbered months . . . on a 

 2

 That child is now being raised by the parents of Whitney 

Rogers and Kevin Chittum; her custody and visitation are not at 

issue on appeal. 

3

 The court noted that all matters regarding Conley's 

visitation with the child were transferred to Stafford County 

and Conley submitted himself to the jurisdiction of the Stafford 

County Juvenile and Domestic Relations District Court. 

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weekend not otherwise provided for Carlton Conley and should be 

taken from the schedule afforded Mr. Conley."4 

 On March 31, 2000, the Stafford County Circuit Court 

entered a consent order, which appointed Johnson as the child's 

guardian and adopted the January 21, 2000 order. Accordingly, 

the court granted the Chittums visitation in accordance with the 

January 21, 2000 order, from Friday to Sunday on the second 

weekend of each month and one full week in July.5 

 On April 24, 2001, Conley married Miskovsky. Johnson filed 

a petition to terminate Conley's visitation on May 16, 2001. 

After a hearing on Johnson's petition, the court entered an 

order on March 11, 2002, which combined Conley's visitation with 

that of the Chittums, effectively reducing Conley's visitation 

with the child to one weekend each month, and precluding his 

sole visitation with the child. Conley appeals the order 

modifying the existing visitation, and the Chittums 

cross-appeal. 

 4

 The Greene County Juvenile and Domestic Relations District 

Court issued a schedule for Conley when it granted him 

visitation in 1998. 

5

 This order did not explicitly address Conley's visitation, 

which was granted initially by the Greene County Juvenile and 

Domestic Relations District Court. 

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Analysis

I. Procedural Defect Claims

 Conley and the Chittums contend Johnson's pleading was 

deficient because it did not seek modification of visitation, 

the position she adopted at the hearing, and only sought 

termination of Conley's visitation. They argue the appeal 

should not be considered, on the ground Johnson's pleading 

failed to give proper notice of her claim. They also argue 

Johnson failed to allege a material change in circumstances in 

her petition. We decline to address these procedural default 

issues on appeal because Conley and the Chittums present neither 

argument nor authority in support of these contentions. See

Rule 5A:20(e). "Statements unsupported by argument, authority, 

or citations to the record do not merit appellate 

consideration." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 

S.E.2d 237, 239 (1992). We thus turn to the substantive issues 

presented. 

II. Material Change in Circumstances

 Conley contends the trial court erred in finding that his 

marriage to Miskovsky and relocation to Buena Vista constituted 

a material change in circumstances. We disagree. 

 As the party seeking to modify custody, Johnson bore the 

burden to prove: (1) there had been a material change of 

circumstances since the most recent custody award and (2) that a 

change in custody would be in the best interests of the child. 

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See Hughes v. Gentry, 18 Va. App. 318, 321, 443 S.E.2d 448, 

450-51 (1994) (citing Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 

917, 921 (1983)). "This rule advances the obvious benefits of 

providing stability in the life of the child whose custody is 

the subject of the conflict between the parents." Hughes, 18 

Va. App. at 322, 443 S.E.2d at 451 (citing Peple v. Peple, 5 

Va. App. 414, 421, 364 S.E.2d 232, 237 (1988)). 

 The decision to modify a child custody order is committed 

to the sound discretion of the trial court. See Wilson v. 

Wilson, 18 Va. App. 193, 195, 442 S.E.2d 694, 695-96 (1994). 

"'The court, in the exercise of its sound discretion, may alter 

or change custody or the terms of visitation if subsequent 

events render such action appropriate for the child's welfare.'" 

Id. (quoting Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 

345 S.E.2d 10, 11 (1986)). However, if the court does not first 

find a material change in circumstances, consideration of the 

"best interests of the child" is barred by the principles of res 

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

811, 814 (1993). "'Whether a change of circumstances exists is 

a factual finding that will not be disturbed on appeal if the 

finding is supported by credible evidence.'" Ohlen v. Shively, 

16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993) (citation 

omitted). The definition of "change in circumstances" is not 

limited to negative events that may occur in the home of the 

custodial parent, but is broad enough to include changes of the 

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non-custodial parent, such as remarriage. See Keel, 225 Va. at 

612, 303 S.E.2d at 921. 

 At the time the trial court granted Johnson's petition and 

merged Conley's visitation with that of the Chittums, an April 

20, 2001 order from Stafford County governed custody and 

visitation. The order incorporated the terms of the previous 

orders giving Conley visitation with C.M.J.C. every other 

weekend and ordered the Chittums' visitation to conform to the 

existing schedule for Conley's visitation. 

 Viewing the evidence in the light most favorable to 

Johnson, the party prevailing below, together with all 

reasonable inferences, see Peple, 5 Va. App. at 422, 364 S.E.2d 

at 237, we cannot conclude the trial court erred in finding that 

a material change in circumstances occurred between the April 

20, 2001 Stafford County order and Johnson's petition to 

terminate Conley's visitation on May 16, 2001. On January 20, 

2002, the court held a hearing on Johnson's petition to 

terminate Conley's visitation. At the hearing, Conley testified 

that he lived in Buena Vista. Prior to Conley's testimony, the 

only evidence before the court was that Conley lived in Greene 

County. Moreover, it is uncontested that Conley and Miskovsky 

married after the April 20, 2001 order. Therefore, we find no 

error in the court's determination that a material change in 

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circumstances occurred between the existing order of April 20, 

2001 and its hearing on Johnson's petition on January 20, 2002.6

III. Best Interests of the Child

 Conley further argues that, even if his marriage and 

relocation constitute a material change in circumstances, the 

court erred in finding that a change in visitation was in the 

best interests of the child. We agree. 

 "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). While 

the trial court is vested with broad discretion to make the 

decisions necessary to safeguard and promote the child's best 

interests, we may set aside its decision if there is no evidence 

to support it. Farley v. Farley, 9 Va. App. 326, 327-28, 387 

S.E.2d 794, 795 (1990). 

 6

 Conley and the Chittums claim no material change in 

circumstances existed because the court was aware of the 

impending marriage of Conley and Miskovsky, as well as his 

relocation to Buena Vista, when it issued its order at the prior 

hearing on April 20, 2001. Indeed, Conley advised the court in 

March 2001, in a Motion and Affidavit for a Rule to Show Cause, 

of his marriage to Miskovsky, scheduled for April 24, 2001. He 

further advised the court in a memorandum on April 20, 2001 that 

he had moved to Buena Vista in September 2000. However, neither 

the memorandum nor affidavit was admitted into evidence, and the 

record fails to show that the court considered either document in 

rendering its decision on April 20, 2001. Therefore, we must 

conclude the memorandum and affidavit were not evidence before 

the court at the time of the last hearing and the marriage and 

relocation were not among the circumstances underlying the 

court's previous order. In short, the evidence before the court 

at the prior hearing showed that Conley was unmarried and living 

in Greene County. 

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 In determining the best interests of the child, the trial 

court must examine numerous factors, including but not limited 

to: 1) the relationship existing between each parent and child, 

giving due consideration to the positive involvement with the 

child's life, and 2) the needs of the child.7 Code 

 7 Code 20-124.3 provides: 

In determining best interests of a child for 

purposes of determining custody . . . the 

court shall consider the following: 

1. The age and physical and mental 

condition of the child, giving due 

consideration to the child's changing 

developmental needs; 

2. The age and physical and mental 

condition of each parent; 

3. The relationship existing between each 

parent and each child, giving due 

consideration to the positive involvement 

with the child's life, the ability to 

accurately assess and meet the needs of the 

child; 

4. The needs of the child, giving due 

consideration to other important 

relationships of the child, including but 

not limited to siblings, peers and extended 

family members; 

5. The role which each parent has played 

and will play in the future, in the 

upbringing and care of the child; 

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6. The propensity of each parent to 

actively support the child's contact and 

relationship with the other parent, the 

relative willingness and demonstrated 

ability of each parent to maintain a close 

and continuing relationship with the child, 

and the ability of each parent to cooperate 

in and resolve disputes regarding matters 
§ 20-124.3. In this case, evidence was limited to these two 

factors. Therefore, we presume the evidentiary facts relating 

to the remaining factors, as determined in the earlier 

proceedings, had not changed because Johnson offered no new 

evidence for the court's consideration. Those facts favored 

visitation with Conley every other weekend. 

 In its determination of the best interests of the child, 

the court adopted Johnson's conclusion that the child was 

"spending too much time in the car" in order to comply with the 

visitation schedule, and articulated this conclusion as the 

basis for its decision. In adopting Johnson's conclusion, the 

trial court relied on her testimony that the child was spending 

"three and a half hours" in the car each way on the weekend 

visitations to Buena Vista. Johnson also testified that the 

child "doesn't have a life" because she "can't schedule anything 

on the weekends." Nothing more than these generalizations 

regarding the child's needs and the purported adverse impact 

that Conley's marriage and relocation had on her needs were 

 

affecting the child; 

7. The reasonable preference of the child, 

if the court deems the child to be of 

reasonable intelligence, understanding, age 

and experience to express such a preference; 

8. Any history of family abuse as that term 

is defined in § 16.1-228; and 

9. Such other factors as the court deems 

necessary and proper to the determination. 

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submitted to the court. Johnson presented no other evidence 

that the amount of time C.M.J.C. spent in the car had any 

adverse impact on her physically, emotionally, psychologically 

or socially. Specifically, Johnson failed to identify which, if 

any, of C.M.J.C's activities were affected by Conley's marriage 

and relocation, and in what adverse way. Furthermore, Johnson 

testified, conversely, that the child "continues to do well and 

is developing well" despite the circumstances surrounding her 

birth, custody and visitation. The guardian ad litem's report 

presented no evidence suggesting C.M.J.C. was not thriving. 

 Similarly, no evidence was presented that Conley's changed 

marital status had any negative effect on the child whatsoever. 

The only evidence that addressed the nature of the child's 

relationship with Conley established that she loved him and 

thought of him as a father. Furthermore, there was no evidence 

showing a negative impact on the child emanating from her 

relationship with Conley's new wife, Pam Miskovsky, an 

individual with whom the child already had an established 

relationship and with whom she already enjoyed visitation. 

 As a matter of law, we find the general statement that "the 

child spends too much time in the car" as a result of Conley's 

marriage and relocation is insufficient evidence to warrant 

modification of a visitation award. Compare Hughes, 18 Va. App. 

at 321, 443 S.E.2d at 450-51 (affirming a transfer of custody 

because it was in the best interests of the child, where child 

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"was happier and better able to relate" to the parties when 

living with mother); Sullivan v. Knick, 38 Va. App. 773, 784-85, 

568 S.E.2d 430, 435-36 (2002) ("The instant record demonstrates 

few, if any, benefits to [the child] . . . from relocation 

hundreds of miles from her father . . . . To the contrary, the 

evidence clearly establishes that the move would disrupt the 

positive involvement and influence of father in [the child]'s 

life, a result at odds with her best interests."); Goldhamer v. 

Cohen, 31 Va. App. 728, 525 S.E.2d 599 (2000) (finding ample 

evidence in the record to support modification of visitation on 

grounds that it was in the best interests of the child, where 

the child began having problems and the child's psychologist 

testified that the midweek overnight visitation at issue 

disrupted the child's schedule for "normal sleeping and waking, 

homework and other activities"). Accordingly, we reverse the 

decision of the trial court. 

 Reversed. 

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