COURT OF APPEALS OF VIRGINIA

Present: Judges McClanahan, Petty and Senior Judge Annunziata Argued at Alexandria, Virginia

DIMITRIOS S. MASTORAS MEMORANDUM OPINION * BY v. Record No. 1794-07-4 JUDGE ROSEMARIE ANNUNZIATA JUNE 10, 2008 REBECCA A. MASTORAS

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY R. Terrence Ney, Judge David M. Zangrilli, Jr. (Odin, Feld man & Pittleman, P. C., on briefs), for appellant. Mary Elizabeth White (Surove ll Markle Isaacs & Levy, PLC, on brief), for appellee.

Dimitrios S. Mastoras (father) appeals a deci sion of the trial court modifying the terms of the parties’ visitation schedule and denying his mo tion for a change in custody. Both father and Rebecca A. Mastoras (mother) re quest an award of atto rney’s fees expended on appeal. For the reasons that follow, we af firm the decision of the trial court. We decline to award either party attorney’s fees. Background The parties were divorced by final decree entered on December 15, 2004. They had one minor child. The parties’ Custody, Support and Property Settlement Agreement (“the agreement”) dated March 5, 2004, was affirmed, rati fied, and incorporated into the final divorce decree. Pursuant to the agreement, the pa rties have joint lega l custody of the child.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - The agreement contains a “Parenting Schedul e” provision, which prov ides, in pertinent part: “The parties agree that the Wife shall have primary care of [the child] except for those times when [the child] is with the Husband as provided in the pare nting schedule below.” Paragraph 5(A)(2) provides in part: “Com mencing approximately May 2, 2004 when the Husband’s work schedule changes, the parties shall rearrange the above schedule so that each party has [the child] approximately fifty (50%) of the time.” In addition, Paragraph 5(F), “Changes to Schedule,” of the agreement states: In accordance with the regular schedule that will commence on approximately May 2, 2004, the Wife shall have [the child] with her approximately fifty percent (50%) of the time and the Husband shall have [the child] with him approximate ly fifty percent ( 50%) of the time. . . . In the event that the Husband’ s work schedule is changed or [the child] starts school, the parties agree th at they shall rea rrange the regular schedule, if necessary, such that each party has approximately fifty percent (50%) of the time with [the child]. In February 2007, father filed a motion to modify custody and visitation, requesting primary physical custody of the child and a change in the visitation schedule. In addition, father

asked the trial court to order th at the child attend school in Fa irfax County. Mother filed a response to father’s motion and a cross-motion fo r modification of visitation. Mother requested, among other things, that the trial court grant her “primary residence of” the child as contemplated by the parties in the agreement and order that the child atte nd school in the location of the child’s primary residence. Mother also as ked the trial court to mo dify father’s visitation schedule with the child during the school year, the summer months, and holidays. The presented evidence at a hearing held on June 18 and 19, 2007 established that mother resides in Leesburg, the father in Centreville and that the child would begin kindergarten in- 3 - September 2007. Father’s evidence al so established that he has re married and that the child has a good relationship with his new wife. 1 In the final order entered on June 26, 2007, the trial court incorporated its rulings from the bench, stating, “The transcript of the Court’ s ruling is attached he reto and incorporated herein, and the terms there of shall be a part of this order.” The order also noted, inter alia, that the “precipitating factor” bringi ng the matter before the court wa s the child starting school. It further noted that the mother lives in Leesburg where “she has primary physical residence of the

child” and that father lives in Centreville. It found both parties were fit parents. Addressing the father’s motion to award hi m primary physical custody of the child, the court interpreted the term , “primary physical residence,” as used in the agreement, to mean “the primary place where a child will attend school.” 2 It further found that the parties signed the agreement, knowing mother had moved to L eesburg, where the child’s primary physical

residence would also be located. It, therefore, conclude d that the circumstan ces relating to where the parties had agreed the child would live and attend school had not change d. The trial court accordingly denied father’s motion to award him primary physical custody and change the child’s primary physical residen ce from Leesburg to Fairfax, as well as father’s motion for an order modifying mother’s visitation were primar y custody to be awarded to him. The court granted mother’s motion to modify father’s vi sitation on the ground that the current schedule was no longer workable. Father appeals the trial cour t’s decision. For the reasons that follow, we

affirm.

1 Father’s evidence that mother is an unfit pa rent was not material to the court’s decision since, as the court found, the al legations concerned pre-divorce in stances of mother’s conduct.

2 Father’s counsel conceded these facts in the trial court.- 4 - Analysis “A trial court’s decision, when based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unless plai nly wrong or without evidence to support it.”

Lanzalotti v. Lanzalotti , 41 Va. App. 550, 554, 586 S.E.2d 881, 882 (2003) (citing Venable v.

Venable , 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986)). “When a trial court has entered a final custody and visitation order, it cannot be modified absent (i) a showing of change d circumstances under Code § 20-108 and (ii) proof that the child’s best interests under Code § 20-124.3 will be served by the modification.” Petry v. Petry , 41 Va. App. 782, 789, 589 S.E.2d 458, 462 (2003) (footnote omitted). See also Keel v. Keel , 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983) (“[F]irst, ha s there been a change in circumstances since the most recent custody awar d; second, would a change in cu stody be in the best interests of the children.”). “‘Whether a change in circum stances exists is a factual finding that will not be disturbed on appeal if the finding is supported by credible evidence.’” Ohlen v. Shively , 16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993) (quoting Visikides v. Derr , 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986)).

The trial court’s denial of father’s moti ons to award him primary physical custody, to change the child’s primary physical residence, to order the child attend school in Fairfax, and to modify mother’s visitation schedule on the ground that a material change of circumstances had not occurred since the parties entered into th e agreement is supported by credible evidence. Referring to the agreement as the “governing doc ument” in determining whether a change of circumstances had occurred, the trial court unde rscored the fact that the parties signed the agreement, knowing mother had moved to Leesbu rg where she had “primary physical residence of the child,” and knowing the child would start school while living with mother. Clearly, the circumstances relating to the child’s primary phys ical residence and her expected entry into- 5 - school had not changed since the court’s prior order. In the absence of a change of circumstances being proved, the trial court is wi thout authority to modify child custody and we

find that its denial of fathe r’s petition for change of custody, including the child’s primary residence, her school, and he r visitation schedule with mother was without error. 3 Turning then to the court’s grant of mother’s motion to modify father’s visitation schedule, the trial court identifies two factors as significant to its decisi on that a change of circumstances warranting a modification of father’s visitation schedule had occurred: the child’s entry into kindergarten, which it de scribes as the “precipitating fact or which brings this matter to the Court’s attention,” and the lo cation of the parents’ residences . Orally addressing the time the child had been able to spend w ith each parent under the court’s prior order, the court observed:

It has been better for this child to be with her father than to be in day care. But that has become or is about to become history, because the child is going to be in school all day or is going to be in school and day care all day. The circumstances that have provided the genesis for this agr eement [that the child will spend fifty percent of the time in the care of each parent] are in some respects simply disappearing, beca use as the child grows, she goes to school and/or day care, and th at is going to change matters. 4

3 Although the court found that fa ther’s remarriage constituted a change in circumstances, the court concluded that the ch ange “does not amount to a cha nge in circumstances such as contemplated by the applicable Virginia law governing cases of this nature,” a finding, by implication, that the change in father’s marital stat us, in light of mother’s fitness as a parent, was not sufficient to establish that it was in the chil d’s best interest to aw ard him primary physical custody and to modify the child’s primary reside nce. We find no reversible error in these findings and rulings. Cf. Visikides , 3 Va. App. at 71-72, 348 S.E.2d at 41 (finding mother’s remarriage, having another child, and ability to stay at home with the children was material change in circumstances). See also Turner v. Turner , 3 Va. App. 31, 35, 348 S.E.2d 21, 23 (1986) (first prong of Keel test met where noncustodial parent showed remarriage has stabilized, child had undergone changes and had expressed a preference in living with the noncustodial parent).

4 Indeed, father conceded in his testimony that the schedule was no longer workable, and his counsel argued:

There is no doubt that there has been a material change of circumstance since the final decr ee was entered back in December- 6 - We find that the evidence in this case s upports the court’s ruli ng that a change of

circumstances occurred warranti ng a modification of the child’ s visitation schedule during the school year and leaving the summ er visitation schedule intact. The difficulties of implementing an equal division of custodial a nd visitation time with the child once the child started school are patent, when considered in light of the di stances separating the parties’ residences. Father also argues the trial court erred by failing to award him a dditional visitation and the trial court erred by failing to consider the Code § 20-124.3 (best interests of the child) factors. However, the trial court orally revi ewed these factors at th e hearing and provided a thorough analysis of its decisi on at the hearing. Code § 20-124.3 provides the court shall

communicate the basis of its decision “either orally or in writing.” Therefore, father’s argument is without merit. Furthermore, both parties conced ed that some of the f actors were inapplicable to the case. In addition, “[t]he court, in the exercise of its so und discretion, may alter or change custody or the terms of visitation when subsequent events render such ac tion appropriate for the

child’s welfare.” Eichelberger v. Eichelberger , 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986). The record supports the tria l court’s decision concerning the modified visitation. Both parties request attorney ’s fees expended on appeal. See O’Loughlin v. O’Loughlin , 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Upon cons ideration of the entire record in this case, we hold that neither party is entitled to costs or attorney’s fees in the matter. “[W]e find the litigation addressed appropriate and substantial issues . . . .” Estate of Hackler v. Hackler , 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004). Therefore, each party’s request for an award of fees and costs on appeal is denied.

of ‘04. The first one is [the child ] is about to start school. Because of the distance between the partie s caused by [mother] moving to Loudoun, the current schedule just really can’t work anymore.- 7 - For the above stated reasons, we affi rm the decision of the trial court.

Affirmed.