COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Lemons 

LANDON TRACY ARCHER SUMMERS 

 MEMORANDUM OPINION*

v. Record No. 2669-97-4 PER CURIAM 

 NOVEMBER 10, 1998 

MARCIA LEE BROWN SUMMERS 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Gerald Bruce Lee, Judge 

 (Dr. Landon Summers, pro se, on briefs). 

 (David E. Roop, Jr.; Condo & Masterman, on 

brief), for appellee. 

 Landon Tracy Archer Summers (father) appeals the decision of 

the circuit court awarding Marcia Lee Brown Summers (mother) 

permanent custody of the parties' two children.1 Father contends 

that the trial court erred by (1) erroneously entering a final 

order for a Motion for Custody Pendente Lite prior to entry of a 

 

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

designated for publication. 

 1Our review of the record does not disclose any notice of 

appeal filed in Chancery No. 147468, which is the case in which 

the trial court issued its ruling on permanent custody. Father 

filed a separate appeal of the trial court's pendente lite

support order entered in Chancery No. 149903. That appeal was 

dismissed for lack of appellate jurisdiction. See Summers v. 

Summers, Record No. 2826-97-4 (Va. Ct. App. July 6, 1998). 

Father filed an Amended Notice of Appeal on January 14, 1998, 

also in Chancery No. 149903, purporting to be an appeal of the 

court's final custody order of December 18, 1997. Mother 

conceded that father filed a notice of appeal of the December 18, 

1997 custody order. Therefore, under these circumstances, we do 

not find that father's failure to properly caption the notice of 

appeal mandates dismissal of his appeal. See Carlton v. Paxton, 

14 Va. App. 105, 109-11, 415 S.E.2d 600, 602-03, aff'd on reh'g 

en banc, 15 Va. App. 265, 422 S.E.2d 423 (1992). 
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divorce decree; (2) failing to implement the recommendations of a 

custody evaluator; (3) changing joint custody to sole custody; 

and (4) failing to consider the best interests of the children. 

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. See Rule 5A:27. 

 On appeal, we review the evidence in the light most 

favorable to mother as the prevailing party below. See Peple v. 

Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). "The 

trial court's decision, when based upon an ore tenus hearing, is 

entitled to great weight and will not be disturbed unless plainly 

wrong or without evidence to support it." Venable v. Venable, 2 

Va. App. 178, 186, 342 S.E.2d 646, 651 (1986). 

Appealable Order

 Father contends that orders entered by the trial court on 

October 10, 1997, November 24, 1997,2 and December 18, 1997 were 

void ab initio and that there was no final appealable order. We 

disagree. Under Code § 17-116.05(3), the Court of Appeals has 

jurisdiction to hear appeals from "[a]ny final judgment, order, 

or decree of a circuit court involving: . . . Custody" and other 

domestic relations matters. An aggrieved party may also appeal 

"[a]ny interlocutory decree or order entered in any of the cases 

listed in this section . . . adjudicating the principles of a 

cause." Code § 17-116.05(4). 

 

 2No order in the custody case was entered on this date. An 

opinion letter was issued in Chancery No. 149903. 
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 For an interlocutory decree to adjudicate 

the principles of a cause, the decision must 

be such that "'the rules or methods by which 

the rights of the parties are to be finally 

worked out have been so far determined that 

it is only necessary to apply those rules or 

methods to the facts of the case in order to 

ascertain the relative rights of the parties, 

with regard to the subject matter of the 

suit.'" 

Erikson v. Erikson, 19 Va. App. 389, 391, 451 S.E.2d 711, 712-13 

(1994) (citations omitted). 

 The decree entered by the trial court on December 18, 1997 

set out the court's final ruling on custody. We find that the 

order was an interlocutory decree which adjudicated the 

principles of a cause.3

 The divorce and equitable distribution 

proceedings continued, but the custody issues were resolved. 

Father noted an appeal, thereby bringing this matter before us 

for review. We find no merit in the errors alleged by father in 

connection with the trial court's entry of the permanent custody 

order. 

Custody Evaluator

 The trial court is not required to adopt recommendations 

made by an expert witness. "It is well established that the 

trier of fact ascertains [an expert] witness' credibility, 

 

 3A pendente lite order is a holding action pending final 

decision in the case. See Weizenbaum v. Weizenbaum, 12 Va. App. 

899, 903, 407 S.E.2d 37, 39-40 (1991). Pendente lite orders are 

not appealable. See id. In contrast, the trial court explicitly 

noted that the custody order now appealed was its final decision 

on custody. Therefore, because this order fully determined the 

custody issues, it adjudicated the principles of a cause and was 

an appealable order. See Code § 17-116.05(4). 
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determines the weight to be given to their testimony, and has the 

discretion to accept or reject any of the witness' testimony." 

Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 

(1997) (en banc) (citation omitted). "[T]he fact finder is not 

required to accept the testimony of an expert witness merely 

because he or she has qualified as an expert. In determining the 

weight to be given the testimony of an expert witness, the fact 

finder may consider the basis for the expert's opinion." Id. at 

387, 488 S.E.2d at 668-69. 

 The trial court's decision was supported by substantial 

evidence presented during three days of testimony, including that 

elicited during the cross-examination of the custody evaluator. 

Specifically, the trial court noted that 

 Dr. Schutz's judgment of a joint custody 

arrangement has been tried out, and it is 

important to me to describe to you what joint 

custody means. 20-124.1 of the Code says 

that joint custody means where both parents 

retain joint responsibility for the care and 

control of a child, and joint authority to 

make decisions concerning the child, even 

though the child's primary residence may be 

with only one parent. . . . It is 

self-evident that a key component of joint 

custody is communication and cooperation, and 

mutuality, and purpose. It is fair to say 

that in this case that joint custody has 

failed. 

Because the trial court's decision is fully supported by the 

evidence, we find no error in the trial court's decision not to 

follow the recommendation of the custody evaluator. 

Award of Sole Custody
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 Father also contends that the trial court erred when it 

awarded mother sole custody with visitation to father rather than 

continuing joint custody. The record amply demonstrates that 

these parties were unable to communicate or otherwise cooperate 

in raising their two young children. Testimony from numerous 

witnesses, including the custody evaluator, documented the 

confusion caused by the parents' battles to control the 

children's schooling, toilet training, and daily care.4

 We find 

the trial court's decision to award sole custody to mother, 

rather than continuing the unsuccessful attempt at joint custody, 

amply supported by the evidence. 

Best Interests of the Children

 "'In determining custody, the court shall give primary 

consideration to the best interests of the child.'" Sargent v. 

Sargent, 20 Va. App. 694, 701, 460 S.E.2d 596, 599 (1995) 

(quoting Code § 20-124.2). The record demonstrates that the 

trial court's decision rested on its evaluation and consideration 

of the best interests of the parties' young children. In 

addition, the trial court specifically addressed the best 

interests of the children in its detailed opinion letter denying 

father's motion for reconsideration. The evidence supports the 

trial court's conclusions, and it is clear that the decision was 

 

 4While this Court is not a fact finder, we need look no 

further than the multiple motions, replies, and supplemental 

replies filed by the parties in connection with this appeal to be 

convinced that the trial court properly noted that "[t]hese 

parents cannot agree on the time of day." 
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made with the best interests of the children as the foremost 

concern. Father has not demonstrated error. 

 Accordingly, the decision of the circuit court is summarily 

affirmed.5

 Affirmed.

 

 5Both parties have filed numerous motions with this Court. 

We deny father's motion for leave to proceed with mediation, 

motion for leave to file a supplemental brief, motion to stay 

divorce proceedings, and motion to stay enrollment of the 

parties' son. We deny mother's motion to strike, except as the 

issues raised are addressed in this opinion.