COURT OF APPEALS OF VIRGINIA

Present: Judg es Bray, Annunz iata and Frank

RICHARD B. SCHOONOVER MEMORANDUM OPINION * v. Record No. 0554-99-3 PER CURIAM SEPTEMBER 7, 1999 PETULA LEE GREE N SCHOONOVER

FROM THE CIRCUIT CO URT OF FLOYD COUNTY Ray W. Grubbs, Judge (Harry F. Bosen, Jr.; Harry F. Bosen, Jr., P.C., on brief), for appellant. (John S. Huntington, on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Richard B. Schoonover (father) appeals fr om the February 17, 1999 order of the circ uit court changi ng custody of the parties'

two sons to Petu la Lee Green Scho onover (mother) . On appeal, father contends that the trial court erred by finding (1) that mother proved that there had been a ma terial change in circumstances since the last custody de cision; and (2 ) that the transfer of cust ody was in the children's best interest s. Upon reviewing the reco rd and briefs of the parties, we conclude that this appeal is withou t merit. Acco rdingly, we su mmarily affirm the decision of th e trial court. See Rule 5A:27. As the party seekin g to modify custody, mother bore the burden to prov e "(1) whether there ha s been a change ofcircumstances since the most rece nt custody award; and (2) whether such a change would be in the best intere sts of the child." Hughes v. Gentry , 18 Va. App. 318, 321, 443 S.E.2d 44 8, 450-51 (1994) (citing Keel v. Keel , 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983)). See Code § 20-108. The deci sion to modify a child custody order is commit ted to the sound disc retion 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 al ter or change cu stody or the term s of visitation when subsequent events render such action appropriat e for the child's welf are.'" Id. (quoting Eichelberger v. Eichelberger , 2 Va. App. 409, 412, 34 5 S.E.2d 10, 11 (1986) ). The tr ial court's determination of whether a change of circumstance s exists and its evaluation of the best interests of the child will not be disturbed on appeal if the court's findin gs are supported by credible evidence. See Walker v. Fagg , 11 Va. App. 581, 586, 400 S.E.2d 208, 211 (1991). Material Change in Circumstances Father contends that the trial court entered its most recent custody order on September 24, 1998, and, therefore, mother was obligated to prove that there had been a material change in circumstances during the period between the September and December hearings. We disagree. It is apparent from the record that the trial court made no final custody determination in its order of September 24, 1998. The trial court did not

- 2 -deny mother's motion to change custody. In the September order, the trial court fo und that it woul d be in the ch ildren's best interests to have father retain custody and to in crease mother's visitation. However, the trial court ordered father to arrange for the educationa l testing and co unseling of th e children as recommended by the lice nsed clinical psycholo gist. Significantly, the trial court al so scheduled an addition al hearing in December "regarding the children's education and counseling." The trial court opened the December hearing by noting that "we're here for review of the custody and visitation arrangement." During that hearing, the court noted that it was being held for the Court to review whether or not a correct decision was made last time and to see the interaction of the parents with the children and how their progress was being noted within the classroom and outside the classroom. . . . I wanted the opportunity to review the matter to answer some questions that the Court had. That was the purpose, really, of this proceeding. Thus, the December hearing was an additional evidentiary hearing on mother's pending motion. Mother was required to present evidence that there had been a material change in circumstances since the 1993 order under which father received physical custody. "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." Visikides v. Derr , 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986). At the time mother filed her

- 3 -motion, the boys were five years older than they were when the trial court entered the original custody order. In 1993, only the older boy had begun elementary school. In 1998, both children were experiencing difficulties in school. Therefore, credible evidence supports the finding of the trial court that there had been a material change in circumstances since the previous custody order. Best Interests of the Children "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." Farley v. Farley , 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990). We find no abuse of discretion in the trial court's finding that it was in the best interests of the children to change custody. At the December 1998 hearing, the partie s presented evidence concerning the childr en's progress in sc hool. The evidence demonstrated that father did not respond when teac hers sent home notes indicating that the older son wa s not turning in his homework. Father di d not respond to teac hers' requests for conferences. Despite the fact that the older boy received only Ds and Cs on his fi rst two report cards fo r fifth grade, father waited until two week s prior to the hearin g to meet with the teachers to discuss the boy's schoolwork. The trial court found that father had "done nothing to support your son in the needs

- 4 -that have been expressed here insofar as his learning advancement is concerned." Mother presented evid ence that she remain ed involved in the boys' education de spite the fact she did no t have custody. She met with the teachers and came to th e school to have lunch with the boys. In addition, despite the trial court's expressed concerns about the parents' refusal to cooperate with each other, father refused to enroll in the Children of Divorce seminar when so directed by the court. Mother completed the class. Therefore, credible evidence supports the finding of the trial court that it was in the best interests of the children to change custody. Accordingly, the decision of the circuit court is summarily affirmed. Affirmed.

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