COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

MURRAY L. STEINBERG 

 MEMORANDUM OPINION*

v. Record No. 2557-96-2 PER CURIAM 

 JULY 15, 1997 

KATHERINE T. STEINBERG 

 FROM THE CIRCUIT COURT OF 

HENRICO COUNTY 

L. A. Harris, Jr., Judge 

 (Murray L. Steinberg, pro se, on briefs). 

 (Murray J. Janus; Bremner & Janus, on 

brief), for appellee. 

 Murray L. Steinberg (father) appeals the decision of the 

circuit court denying his motion to modify the visitation 

schedule shared with Katherine T. Steinberg Shumaker (mother). 

In a previous appeal, we remanded this matter to the trial court 

for it to hold an evidentiary hearing. See Steinberg v. 

Steinberg, Record No. 2315-95-2 (Va. Ct. App. June 18, 1996). In 

this appeal, father contends that the circuit court (1) lacked 

subject matter jurisdiction; (2) erred in denying father's 

recusal motion; (3) denied father and daughter due process and 

equal protection of the law; (4) violated the First Amendment 

rights of father and daughter; (5) erred in finding no 

substantial change in circumstances; (6) erred in failing to 

consider the statutory factors set out in Code § 20-124.3; (7) 

 

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

designated for publication. 
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erred in failing to consider Code § 20-124.2; (8) caused the 

child to be "abused or neglected" under Code § 16.1-228; and (9) 

violated Rule 5A:8 by relying upon the hearing transcript rather 

than father's proposed written statement of facts. Upon 

reviewing the record and briefs of the parties, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm 

the decision of the trial court. Rule 5A:27. 

Issue 1

 Father once again raises the issue whether the circuit court 

had subject matter jurisdiction to initially decide custody. The 

initial custody decision was appealed and affirmed. See

Steinberg v. Steinberg, Record Nos. 1839-91-2, 2036-91-2, 

2172-91-2 (Va. Ct. App. Feb. 9, 1993). Father's current 

challenge to the circuit court's jurisdiction rests on 

allegations of fraud and factual determinations in connection 

with mother's divorce action filed in the circuit court. Among 

other allegations, father contends that there was no cause 

pending in the circuit court because mother's bill of complaint 

was flawed. However, those challenges were not raised at the 

time of the initial appeal. 

 Generally, a judgment or decree rendered by a 

court having jurisdiction over the parties 

and subject matter must be challenged by 

direct appeal and cannot be attacked 

collaterally. A party may, however, assail a 

void judgment at any time, by direct or 

collateral attack. Although a judgment 

obtained by "extrinsic fraud" is void and, 

therefore, subject to direct or collateral 

attack, a judgment obtained by "intrinsic 

fraud" is merely voidable and can be 
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challenged only by direct appeal or by a 

direct attack in an independent proceeding. 
 4 

 "Intrinsic fraud" includes perjury, use 

of forged documents, or other means of 

obscuring facts presented before the court 

and whose truth or falsity as to the issues 

being litigated are passed upon by the trier 

of fact. A collateral attack on a judgment 

procured by intrinsic fraud has been deemed 

not warranted because the parties have the 

opportunity at trial through 

cross-examination and impeachment to ferret 

out and expose false information presented to 

the trier of fact. When a party discovers 

that a judgment has been obtained by 

intrinsic fraud, the party must act by direct 

attack or appeal to rectify the alleged wrong 

and cannot wait to assail the judgment 

collaterally whenever it is enforced. 

Peet v. Peet, 16 Va. App. 323, 326-27, 429 S.E.2d 487, 490 (1993) 

(citations omitted). Father's challenge to the subject matter 

jurisdiction of the circuit court is based upon allegations of 

intrinsic fraud. Father cannot make that challenge by collateral 

attack. 

Issue 2

 The recusal decision is left to the sound discretion of the 

trial judge. See Deahl v. Winchester Dep't. of Social Servs., 

224 Va. 664, 672-73, 299 S.E.2d 863, 867 (1983). The trial judge 

stated that he could give appellant a fair hearing. Upon 

reviewing the record, we find no abuse of discretion in the trial 

judge's decision to deny father's motion to recuse. 

Issue 3

 Father's allegation that he was denied due process in the 

custody determination on April 21, 1991 is without merit. The 

record demonstrates that mother's motion to quash father's 
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interrogatories and requests for admission was timely received. 

 Father also argues that the trial court denied him due 

process and/or equal protection of the law by not ruling on his 

motion for a change in the parenting arrangements, custody or 

transportation of the child; not allowing him to present evidence 

on his motion for recusal; and not swearing him in as a witness 

prior to his testimony. 

 A custody determination was not before the court. The 

remand from this Court concerned a visitation dispute. The trial 

court entertained father's arguments on that issue. 

 Father cites to no statutory or case law, and we know of 

none, that requires a trial court to hear evidence on a recusal 

motion. 

 Finally, the transcript of the evidentiary hearing clearly 

states that father was "duly sworn" prior to his testimony. 

 Having considered father's additional allegations that he 

was denied due process and equal protection of the law, we find 

those allegations without merit. 

Issue 4

 Father contends that the current custody arrangement 

unconstitutionally impinges on his freedom of religion. There is 

no evidence in the record that the child's exercise of religion 

is impeded or impaired by the custody arrangement. On the 

contrary, the record reflects that father has been able to expose 

the child to religious training through his visitation on 
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alternative weekends and Jewish holidays. Moreover, in the order 

from which father appeals, the court granted a modification of 

father's regular Tuesday afternoon visitations so that the child 

could attend religious school, as father requested. The trial 

court found no evidence that mother was interfering with the 

daughter's exposure to Judaism. Father's challenge to the 

current custody arrangements on First Amendment grounds is not 

supported by the record. 

Issues 5 and 6

 "In matters concerning custody and visitation, the welfare 

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

controlling consideration[s].'" Kogon v. Ulerick, 12 Va. App. 

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

considering a petition to change child custody, a trial court 

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

a [material] change of circumstances since the most recent 

custody award; and (2) whether a change in custody would be in 

the best interests of the child." Visikides v. Derr, 3 Va. App. 

69, 70, 348 S.E.2d 40, 41 (1986). 

 [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. 

Keel v. Keel, 225 Va. 606, 612, 303 S.E.2d 917, 921 (1983). 
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 The trial court received the evidence presented by the 

parties, including father's evidence challenging the quality of 

the child's current school and day care, and heard the testimony 

of the witnesses. The transcript demonstrates that the court 

allowed father to present relevant evidence concerning changed 

circumstances. The court concluded however, that, with the 

exception of an extended visit on Tuesdays for religious school, 

a change in the current custody arrangements was not warranted. 

The evidence supports the trial court's conclusions, and, as 

noted below, it is clear that the decision was made with the best 

interests of the child as the foremost concern. 

 While father contends that the court failed to consider the 

child's best interests, the record demonstrates the opposite. 

The court remarked on how well the child continues to function, 

despite the numerous custody hearings. The court noted that it 

"has set what it feels is the best visitation for the child." It 

also noted that 

 [w]e've been through [what would make the 

parents work better together] a number of 

times and the Court has set what it feels to 

be the best interest of the child. And I 

would have to say from the results things are 

not going particularly bad at this particular 

time as far as [the child] is concerned. 

That's my only concern. 

In fact, the court found that the child "continues to do 

extremely well." Therefore, we find no evidence that the trial 

court failed to consider the best interests of the child, as 

required under Code § 20-124.3. 
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Issue 7

 The visitation arrangement allowed the parties equal time 

with the child. Under the appealed order, father was granted an 

extension of his Tuesday visitations. Father's argument that the 

court's decision violated Code § 20-124.2 is without merit. 

Issue 8

 The trial court found that father's contentions that the day 

care and elementary school placed the child at risk were 

unsupported by the evidence. The court noted that the child 

continued "to do extremely well" in her current arrangement. The 

mere fact that the day care may care for some dysfunctional 

children, or that the elementary school near father's home had 

higher standardized test scores than the child's current school, 

does not mean that the child is an abused or neglected child 

within the meaning of Code § 16.1-228. 

Issue 9

 Father timely filed a proposed Written Statement of Facts. 

Mother objected to the statement and filed a transcript of the 

hearing. The trial court ruled that the transcript of the 

hearing constituted the Statement of Facts. Rule 5A:8 allows the 

trial judge to make corrections, additions, and certifications of 

the manner in which the record is incomplete. We find no error 

in the trial court's decision to rely upon the hearing transcript 

rather than father's proposed written statement. See White v. 

Morano, 249 Va. 27, 452 S.E.2d 856 (1995). 
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 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.