COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

TAMMY GAIL WALDEN COLE 

v. Record No. 1570-95-1 MEMORANDUM OPINION*

 PER CURIAM 

ROBERT CLARK COLE FEBRUARY 27, 1996 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John E. Clarkson, Judge 

 (George A. Christie; Christie & Kantor, on 

brief), for appellant. 

 (Henry M. Schwan; Allan D. D. Cahill, on 

brief), for appellee. 

 Tammy Gail Walden Cole (mother) appeals the decision of the 

circuit court awarding Robert Clark Cole (father) physical 

custody of the parties' minor daughter. Mother also argues that 

the trial court erred in disqualifying the opinion testimony of 

her expert witness; crediting father with $6,000 from the sale 

proceeds of the parties' North Carolina property; and failing to 

award mother her costs and attorney's fees. Father contends the 

trial court erred by failing to award him his attorney's fees and 

costs. 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. 

 

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

designated for publication. 

 The evidence was heard by the commissioner in chancery, to 

whose report father filed numerous exceptions. The trial court 
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accepted the majority of father's exceptions. On review, we note 

that the commissioner's report 

 should be sustained unless the trial court 

concludes that the commissioner's findings 

are not supported by the evidence. This rule 

applies with particular force to a 

commissioner's findings of fact based upon 

evidence taken in his presence, but is not 

applicable to pure conclusions of law 

contained in the report. . . . [W]here the 

chancellor has disapproved the commissioner's 

findings, this Court must review the evidence 

and ascertain whether, under a correct 

application of the law, the evidence supports 

the findings of the commissioner or the 

conclusions of the trial court. Even where 

the commissioner's findings of fact have been 

disapproved, an appellate court must give due 

regard to the commissioner's ability, not 

shared by the chancellor, to see, hear, and 

evaluate the witnesses at first hand. 

Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296-97 (1984) 

(citations omitted). 

Custody

 "In matters of custody . . . the court's paramount concern 

is always the best interests of the child." Farley v. Farley, 9 

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

 In matters of a child's welfare, trial courts 

are vested with broad discretion in making 

the decisions necessary to guard and to 

foster a child's best interests. A trial 

court's determination of matters within its 

discretion is reversible on appeal only for 

an abuse of that discretion, and a trial 

court's decision will not be set aside unless 

plainly wrong or without evidence to support 

it. 

Id. at 327, 387 S.E.2d at 795 (citations omitted). Factors to be 

considered when determining a child's best interests include, 
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among others, the child's age and physical and mental condition, 

"giving due consideration to the child's changing developmental 

needs;" "the relationship existing between each parent and each 

child, giving due consideration to the positive involvement with 

the child's life . . .;" and "[t]he role which each parent has 

played and will play in the future, in the upbringing and care of 

the child." Code § 20-124.3(1), (3), and (5). 

 Contrary to mother's assertion, the court's opinion, 

rejecting the recommendation of the commissioner in chancery that 

custody of the child be so ordered to her, demonstrates that the 

court applied the appropriate legal standard to its determination 

of custody. The court discussed the statutory factors, noting 

that "the past . . . is the best prognostication for the future." 

 Based upon the "majority of the evidence from the hearing and 

the social history" prepared for the district court, the trial 

court concluded that father was "a good father" and "the best 

caretaker" who "had a positive, continuing involvement with the 

child" and "to the best of his ability under extremely difficult 

situations, met the emotional, intellectual, educational and 

physical needs of the child." In assessing mother's role, the 

court noted that she 

 does not now have custody of her son from a 

former marriage, at one time, deserted the 

child of this marriage by moving out and has 

committed adultery and continues to live with 

a male during the time that this divorce has 

been filed. She apparently does not believe 

that a father can raise a daughter. 
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 The child's teachers testified that father was on the 

school's volunteer list and participated in school activities and 

field trips. Father enrolled the child in ballet and gym 

classes. There was evidence that mother reduced her visitation 

with the child to accommodate the fact that her companion was 

away only one night. 

 While the court stated that it found "no legal reason to 

change custody at this time," the court did not impose upon 

mother any requirement to demonstrate a change in circumstances 

meriting a change in custody. The court's ruling demonstrates 

that it considered the evidence to determine which parent would 

provide the child with the best primary residence at this time. 

 Based upon our review of the evidence, we find that the 

evidence supports the conclusion of the trial court that the best 

interests of the child were served by granting father physical 

custody. 

Disqualification of Expert Witness' Opinion Testimony

 The trial court accepted, without comment, the following 

exception by father to the commissioner's report: "2. The 

Commissioner's erroneous custody recommendation is found upon the 

opinions of a unqualified alleged 'expert' nurse (Michele 

Zimmerman); objections to the qualifications of this witness as 

an expert witness and to the opinions of that witness were timely 

made."1

 

 1It is unclear from this exception, and from the record as a 

whole, whether the trial court determined that Zimmerman did not 
 5 

 Zimmerman testified that she was a clinical nurse 

specialist, with a master's degree in psychiatric and mentalhealth nursing, and was board-certified as a specialist in both 

adult and child/adolescent psychiatric nursing, and was certified 

in family therapy. Zimmerman also testified that she was a 

practicing psychotherapist, but was neither a psychiatrist nor a 

psychologist. Zimmerman noted that she had published in the 

areas of addictions, child sexual abuse and stress management, 

and wrote a unit in a book for persons taking advanced practice 

boards on the diagnosis and treatment of child and adolescent 

psychiatric disorders. Zimmerman was offered as an expert in 

child and adolescent psychology in order "to talk about 

evaluations of children and family relations." 

 In her testimony, Zimmerman admitted that she had not met 

father and she had little information about the child's life with 

her father. Conclusions she drew about father were based on the 

information received from mother. The trial court did not, and 

was not required to, "accept as conclusive the opinion of an 

expert." Lassen v. Lassen, 8 Va. App. 502, 507, 383 S.E.2d 471, 

474 (1989). Thus, while Zimmerman may have been qualified as an 

expert, we cannot say the trial court erred in rejecting her 

opinion. 

 Zimmerman stated that "all things being equal, two equally 

 

qualify as an expert or that she did qualify but that the court 

nonetheless rejected her opinions. For our purposes, we assume 

the latter. 
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loving and competent parents . . . it makes sense for the child 

to be with the same-sex parent." The trial court determined that 

the parents were not equal and that father was the better 

caretaker.2

 Evidence supports the trial court's decision. 

Therefore, we find no reversible error in the decision of the 

trial court to reject the opinion of mother's expert witness. 

Traceable Funds

 The parties agreed that the $6,000 received by father as an 

advance on his inheritance was his separate property, and that 

father used that money as part of the down payment on the 

purchase of the parties' property in North Carolina. Code 

§ 20-107.3(A)(1)(ii). Under the statutory scheme, property can 

be classified as part marital and part separate, and marital 

property includes "all property titled in the names of both 

parties . . . except as provided by subdivision A 3." Code 

§ 20-107.3(A)(2)(i). In particular, the statute states: 

 e. When marital property and separate 

property are commingled into newly acquired 

property resulting in the loss of identity of 

the contributing properties, the commingled 

property shall be deemed transmuted to 

marital property. However, to the extent the 

contributed property is traceable by a 

preponderance of the evidence and was not a 

gift, the contributed property shall retain 

 

 2Zimmerman also stated that "most child experts would agree 

that, given a little girl of tender years, that it is in a 

child's best interests to be with the same-sex parent." Code 

§ 20-124.2(B) provides that "[a]s between the parents, there 

shall be no presumption or inference of law in favor of either." 

Reliance upon a "tender years" presumption or inference in 

custody determinations is reversible error. Visikides v. Derr, 

3 Va. App. 69, 72, 348 S.E.2d 40, 42 (1986). 
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its original classification.

Code § 20-107.3(A)(3)(e) (emphasis added). Moreover, under 

subsection (g), "[n]o presumption of gift shall arise under this 

section where (i) separate property is commingled with jointly 

owned property . . . ." The classification of the property "is 

determined by the statutory definition and is not determined by 

legal title." Garland v. Garland, 12 Va. App. 192, 195, 403 

S.E.2d 4, 6 (1991). 

 Father traced the use of his separate property as part of 

the funds used to purchase the North Carolina property. The fact 

that the property was jointly titled did not create a presumption 

of a gift by father. Mother presented no other evidence to prove 

the $6,000 was a gift. Therefore, the trial court did not err in 

allowing father to recover his separate funds from the sale 

proceeds. 

Attorney's Fees and Costs

 Awards of attorney's fees or costs are matters submitted to 

the sound discretion of the trial court and are reviewable on 

appeal only for an abuse of discretion. Graves v. Graves, 4 Va. 

App. 326, 333, 357 S.E.2d 554, 558 (1987). Cf. Donald v. Fairfax 

County Dep't of Human Dev., 20 Va. App. 155, 160-62, 455 S.E.2d 

740, 743-44 (1995). The key to a proper award of counsel fees or 

costs is reasonableness under all the circumstances. McGinnis v. 

McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). 

 The trial court required the parties to pay their own 
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attorney's fees and share the costs equally. We cannot say that 

the trial court abused its discretion in denying either party an 

award of attorney's fees and in splitting the costs. 
 9 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.