COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Bumgardner 

Argued by teleconference 

LAURA C. PANNER 

 MEMORANDUM OPINION* BY 

v. Record No. 1739-97-2 JUDGE LARRY G. ELDER 

 APRIL 14, 1998 

BENJAMIN D. SILLMON 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Timothy J. Hauler, Judge 

 Edward D. Barnes (Charles E. Powers; Barnes & 

Batzli, P.C., on briefs), for appellant. 

 Lawrence D. Diehl (Susanne L. Shilling; 

Shilling & Associates, on brief), for 

appellee. 

 Laura C. Panner ("mother") appeals the trial court's order 

granting the motion of Benjamin D. Sillmon ("father") to transfer 

the physical custody of their daughter, Katie, to him. Father 

requests an award of attorney fees and costs incurred to defend 

this appeal. For the reasons that follow, we affirm and remand. 

 I. 

STANDARD OF REVIEW AND BURDEN OF PROOF 

 We disagree with mother's contention that the trial court 

failed to apply a de novo standard of review to the J&DR court's 

order granting father's motion and erroneously placed the burden 

on her to prove that placing Katie in her physical custody was in 

Katie's best interests. After reviewing the record, we hold that 

 

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

designated for publication. 
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the trial court was aware of and applied the correct standard of 

review and burden of proof. 

 II. 

DR. STOLBERG'S TESTIMONY 

 Assuming that mother's motion was timely, we hold that the 

trial court did not err when it denied her motion to strike the 

testimony of Dr. Arnold L. Stolberg from the record. The 

evidence in the record regarding Dr. Stolberg's background 

established that he was qualified to evaluate parenting skills 

and to testify about the effects of divorce upon children. The 

evidence regarding Dr. Stolberg's possible bias was relevant to 

his credibility as a witness and the weight of his opinion, not 

to the admissibility of his testimony. See Ford v. Ford, 200 Va. 

674, 679, 107 S.E.2d 397, 401 (1959). 

 III. 

 EVIDENTIARY RULINGS 

 A. 

 DR. STOLBERG'S TESTIMONY REGARDING MEALS IN CONCORD, N.C. 

 Although expert testimony is inadmissible if it is 

"speculative or founded upon assumptions that have an 

insufficient factual basis," Tittsworth v. Robinson, 252 Va. 151, 

154, 475 S.E.2d 261, 263 (1996), we hold that Dr. Stolberg's 

testimony regarding the probable location of Katie's and father's 

meals during future visitation in North Carolina was neither 

speculative nor unsupported by the record. Dr. Stolberg's 
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understanding is supported by father's testimony regarding the 

arrangements he would make when visiting Katie in North Carolina. 

 B. 

 FATHER'S TESTIMONY REGARDING THE PROCEEDINGS IN THE J&DR COURT 

 We hold that the trial court did not abuse its discretion 

when it admitted father's testimony regarding the proceedings in 

the J&DR court. Father testified about the approximate date that 

he petitioned the J&DR court for a change in child custody and 

the date of one of the parties' appearances before that court. 

These factual issues were material to the trial court's 

understanding of the case, and father's testimony tended to prove 

them. 

 C. 

 FATHER'S TESTIMONY REGARDING THE FREQUENCY OF VISITATION 

 We hold that the trial court did not err when it prevented 

father from testifying regarding how frequently he believed 

visitation with Katie should occur. Because father's testimony 

on this subject was not likely to indicate his propensity to 

support Katie's relationship with mother under the custody 

arrangement eventually ordered by the trial court, it was not 

relevant to Code § 20-124.3(6). 

 D. 

MOTHER'S TESTIMONY REGARDING 

HER PROPENSITY TO COOPERATE WITH FATHER 

 We hold that Rule 5A:18 bars us from considering mother's 

argument that the trial court erred when it prevented her from 
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responding to her counsel's question about her willingness to 

cooperate with father to transport Katie in between Richmond and 

Concord, North Carolina. The trial court sustained father's 

objection to the question posed by mother's counsel on the ground 

that the question was leading. Without attempting to rephrase 

the question, mother's counsel moved on to another line of 

inquiry. Because mother failed to argue to the trial court that 

her response to this question was relevant, we will not consider 

this argument for the first time on appeal. 

 E. 

TRIAL JUDGE'S PRESENCE DURING 

FATHER'S PROFFER OF MR. MELBERG'S TESTIMONY 

 We hold the Rule 5A:18 also bars us from considering 

mother's argument that the trial court committed reversible error 

by remaining in the courtroom while father's counsel proffered 

the excluded testimony of Peder K. Melberg. Our review of the 

record indicates that mother did not object to the trial court's 

presence at the time of the proffer. 

 IV. 

MOTION TO STRIKE FATHER'S EVIDENCE 

 Mother contends that the trial court erred when it refused 

to strike father's evidence at the conclusion of his 

case-in-chief. However, because mother waived her right to stand 

on her motion to strike father's evidence at the conclusion of 

his case-in-chief by presenting evidence on her behalf following 

this motion, we will consider her challenge to the sufficiency of 
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the evidence by examining the entire record. See Carter v. 

Commonwealth, 223 Va. 528, 531, 290 S.E.2d 865, 866-67 (1982); 

Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266 

(1948). 

 V. 

CHANGE IN CHILD CUSTODY 

 Mother contends that the trial court erred when it 

transferred physical custody of Katie from her to father. 

Because credible evidence supports the trial court's conclusions 

as well as its factual findings and because the record does not 

establish that its weighing of the statutory factors of Code 

§ 20-124.3 was erroneous, we disagree. 

 It is well established that a trial court should grant a 

motion for a change in child custody only if the moving party 

proves both (1) that a "change in circumstances" has occurred 

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

custody would be in the "best interests of the child." 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)). It is now established by statute that the second of 

these two "prongs" -- the best interests of the child -- must be 

the trial court's "primary consideration." Code § 20-124.1(B); 

see also Keel, 225 Va. at 612, 303 S.E.2d at 921 (stating that 

"the second prong . . . is clearly the most important part of the 

two-part test"). 
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 On appeal, we consider the evidence in the light most 

favorable to the party prevailing below. See Wilson v. Wilson, 

12 Va. App. 1251, 1254, 408 S.E.2d 576, 578 (1991). "The 

judgment of a trial court sitting in equity, when based on 

evidence heard ore tenus, will not be disturbed on appeal unless 

plainly wrong or without evidence to support it." Peple v. 

Peple, 5 Va. App. 414, 423, 364 S.E.2d 232, 237 (1988). 

 A. 

CHANGE IN CIRCUMSTANCES 

 We disagree with mother's contention that the trial court 

erred when it concluded that a "change in circumstances" had 

occurred since the entry of the prior custody order on March 6, 

1995. The range of "changes" that satisfy the first prong of the 

so-called "Keel test" is broad and may include either positive or 

negative changes in the circumstances of either parent as well as 

changes in the child stemming from his or her development. See

Keel, 225 Va. at 611-12, 303 S.E.2d at 921. "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). 

 We hold that the evidence was sufficient to support the 

trial court's finding that a change of circumstances occurred 

since the most recent custody award. The record proved that both 

parties had remarried since March 1995 and that Katie was about 
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to begin schooling that would require her to remain in one 

geographic location on days that school was in session. In March 

1996, mother moved with Katie to Concord, North Carolina, which 

is over 250 miles away from Richmond. Because of Katie's 

impending entry into kindergarten and the distance between 

Concord and Richmond, mother's move to North Carolina rendered 

the existing arrangement of custody and visitation impracticable. 

 Moreover, Dr. Stolberg testified that, by reducing father's 

daily involvement in Katie's life, this move would have an 

adverse impact upon Katie's development. Based on this evidence, 

we cannot say that the trial court's finding of a change in 

circumstances was erroneous. See Hughes, 18 Va. App. at 322, 443 

S.E.2d at 451. 

 B. 

BEST INTERESTS OF CHILD 

 We also disagree with mother that the evidence was 

insufficient to support the trial court's finding that changing 

Katie's physical custody was in Katie's best interests or that 

the trial court misapplied the factors of Code § 20-124.3. 

 When determining which custody arrangement is in the best 

interests of a child, the trial court is required to consider the 

evidence presented as it relates to the factors listed in Code 

§ 20-124.3. See Code § 20-124.3. The trial court is not 

required to quantify or elaborate what weight or consideration it 

has given to each of the factors enumerated in Code § 20-124.3 or 
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to weigh each factor equally. See Sargent v. Sargent, 20 Va. 

App. 694, 702, 460 S.E.2d 596, 599 (1995). However, the trial 

court's findings must have some foundation based on the evidence 

in the record, and if the trial court's findings lack evidentiary 

support, its determination of child custody is an abuse of 

discretion. Cf. Trivett v. Trivett, 7 Va. App. 148, 153-54, 371 

S.E.2d 560, 563 (1988); Woolley v. Woolley, 3 Va. App. 337, 345, 

349 S.E.2d 422, 426 (1986). 

 We hold that the trial court's determination that 

transferring Katie's physical custody from mother to father was 

in Katie's best interests was neither unsupported by the evidence 

nor an abuse of discretion. The trial court stated that it 

considered all of the statutory factors of Code § 20-124.3, 

except for Katie's preference, which it excluded because of 

Katie's young age. The trial court also made numerous findings 

regarding these factors, all of which are supported by the 

evidence. 

 The evidence presented by both parties regarding their care 

of Katie supports the trial court's findings that both parties 

are fit to properly care for Katie, have sought to maximize her 

opportunities for social, educational, and religious development, 

and have created loving and nurturing environments for her in 

their respective homes. This evidence also supports the trial 

court's finding that Katie was "doing well with dad" during her 

visitation with him prior to the hearing. Mother's testimony 
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that she has been Katie's primary caretaker since her birth and 

father's testimony regarding his participation in Katie's care 

during her early childhood supports the trial court's finding 

that each parent contributed to Katie's early care and 

development. The trial court's finding that father's assault of 

Raymond Davis, mother's father, on the day the parties separated 

was an aberration is supported by Mr. Davis' testimony that 

father was never physically abusive to him or mother either 

before or after that incident. The trial court's finding that 

Katie's potential development will be maximized by her continued 

exposure to her extended family in Virginia is supported by Dr. 

Stolberg's testimony on this point. As the trier of fact, the 

trial court was entitled to determine the weight and credibility 

of Dr. Stolberg's testimony. See Ford, 200 Va. at 679, 107 

S.E.2d at 401. The evidence regarding Katie's activities and 

friendships in Richmond, her choice of schools, and her health 

care supports the trial court's finding that "collateral 

resources . . . located in the local Richmond area" will also 

benefit her development. 

 VI. 

ATTORNEY FEES AND COSTS 

 Based on the circumstances of this appeal, we grant father's 

request for an award of attorney fees and costs incurred in this 

proceeding. We remand this case to the trial court for an 

assessment of a reasonable fee. See O'Loughlin v. O'Loughlin, 23 
 10 

Va. App. 690, 479 S.E.2d 98 (1996). 

 For the foregoing reasons, we affirm the trial court's order 

and remand for a determination of father's attorney fees and 

costs related to this appeal. 

 Affirmed and remanded.