COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner 

Argued at Salem, Virginia 

WILLIAM SESSOMS 

 MEMORANDUM OPINION* BY 

v. Record No. 1227-98-2 JUDGE RUDOLPH BUMGARDNER, III 

 MAY 25, 1999 

BARBARA ELIZABETH MYER 

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

Jay T. Swett, Judge 

Annie Lee Jacobs (Tracey C. Hopper; Parker, 

McElwain & Jacobs, P.C., on briefs), for 

appellant. 

Patricia M. Brady for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication.

 William Sessoms appeals a final decree of divorce awarding 

Barbara Elizabeth Myer physical custody of their daughter, child 

and spousal support, and attorney’s fees. He argues that the 

trial court erred (1) in authorizing the wife to petition for a 

custody review without needing to prove a change in 

circumstances; (2) by ordering visitation not in accordance with 

the recommendation of his experts; (3) in failing to impute 

income to the wife; (4) in ruling that wife had a need for 

support and attorney's fees; and (5) in calculating child and 

spousal support. She appeals the decisions (6) directing her to 

reside in the Charlottesville-Albemarle area for at least three 
years and (7) admitting certain expert testimony not revealed 

during discovery. We conclude that the trial court erred in 

authorizing the wife to petition for review without having to 

show a change of circumstances, in limiting the custody order to 

three years, and in calculating the support. We conclude the 

trial court did not err on the other issues. 

The wife left her job in California where she earned 

$31,200 as a television production assistant and moved to 

Charlottesville where the parties married in 1994. The wife had 

various lower paying jobs ranging from temporary secretarial 

work to creative writing, but she never worked full-time after 

their daughter was born in June 1996. The couple had serious 

marital problems before the birth of their daughter, but in 

January 1997 without any notice to her husband, the wife filed 

for divorce, took their child, and left for Colorado. She had 

never lived there, but most of her family was living there. She 

resided with her father and was able to get a job from her 

sister that allowed her to keep her daughter with her while she 

worked. 

Both parties wanted custody. The husband stressed that it 

was very important that both parents have frequent and regular 

contact with their child and that it was in her best interest to 

see both parents on a reasonably frequent basis. He wanted to 

visit her during the week and to have overnight visitation 

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during the week and every other weekend. The wife wanted to 

live in Colorado, work, and raise her daughter there. 

 The wife returned to Virginia for a pendente lite hearing 

in February 1997. The trial court awarded the parties joint 

legal custody, gave the wife physical custody, but ordered her 

to remain in the Charlottesville area. The husband was awarded 

visitation for several hours, five days a week and every other 

weekend. In August 1997, the court increased husband’s 

visitation by several hours each week. 

 The trial was held January 22, 1998 on all matters of 

custody, visitation, child support, spousal support, and 

attorney’s fees. The parties settled the equitable distribution 

issues. After hearing extensive evidence including five 

experts, the trial court awarded physical custody to the wife 

provided she remained in the Charlottesville area. It limited 

the restriction to three years and ruled that the wife could 

petition for a change in the custody order without showing a 

material change in circumstances.1 

 

 1The trial court stated: 

 

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that primary physical custody shall be with 

the mother, providing she resides in the 

Charlottesville/Albemarle area; this 

restriction is to be in place for a period 

of three years. After that time, if the 

parties cannot reach an agreement as to 

where Ms. Myer resides, Ms. Myer shall be 

able to return to this Court to seek a 

review of this Court’s ruling regarding 

change of residence without needing to prove 
The husband contends the trial court erred when it allowed 

the wife to seek review in three years without having to 

establish a material change in circumstances. The wife contends 

the trial court erred when it required her to reside in the 

Charlottesville area. We affirm the decision of the trial court 

awarding physical custody to the mother and restricting her to 

the area. However, we conclude that the trial court erred in 

limiting the custody order to three years and in authorizing the 

wife to petition for modification without showing a change in 

circumstances. 

Courts are authorized to prohibit custodial parents from 

removing a child from the state, see Carpenter v. Carpenter, 220 

Va. 299, 302, 257 S.E.2d 845, 848 (1979), or to permit such 

removal. See Gray v. Gray, 228 Va. 696, 698-99, 324 S.E.2d 677, 

678 (1985). When the trial court bases its decree on the best 

interest of the child, it will not be reversed unless plainly 

wrong or without evidence to support it. See Scinaldi v. 

Scinaldi, 2 Va. App. 571, 573, 347 S.E.2d 149, 150 (1986); Gray, 

228 Va. at 698-99, 324 S.E.2d at 678; Carpenter, 220 Va. at 302, 

257 S.E.2d at 848. 

 

a material change in circumstances, but 

rather, the sole issue shall be what is in 

the best interests of the child. 

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The trial court found that both parents cared deeply for 

the child and that neither parent wanted to keep the child from 

the other parent. The trial court found husband’s evidence 

regarding the importance of a strong relationship between father 

and child during the early years credible and gave it great 

weight. Consequently, the court ruled that it was in the 

child’s best interest during the early years “to be able to be 

with and see her father on a reasonably frequent basis.“ 

The evidence supported the conclusion of the trial court 

that the child’s relationship with the father would not be 

maintained at the same level if it permitted the mother to take 

her to Colorado. The added difficulty of maintaining a 

relationship between the child and the parent “should not be the 

sole basis for restricting a custodial parent’s residence except 

where the benefits of the relationship cannot be substantially 

maintained if the child is moved away.” Scinaldi, 2 Va. App. at 

575, 347 S.E.2d at 151. Here, the trial court did not abuse its 

discretion because it was in the child’s best interest to order 

the mother and child to stay in Virginia. 

The trial court stressed that it based its decision on 

custody and to restrict the mother to the area “primarily due to 

the young age of the child.” While it may be inevitable that 

circumstances will change in three years as the child reaches 

school age, the court cannot make that determination 

prospectively. It must first find a material change of 

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circumstances before it modifies a custody decree. See Bostick 

v. Bostick-Bennett, 23 Va. App. 527, 536, 478 S.E.2d 319, 323 

(1996) (increased certainty regarding custodial parent's 

impending move is not a change in circumstances); Turner v. 

Turner, 3 Va. App. 31, 36, 348 S.E.2d 21, 23-24 (1986) (the 

"paramount concern [is] the best interests of the child at a 

given point in time, recognizing that it may become appropriate 

to make a change in the future"). A custody decision is res

judicata of the issue unless there is a material change of 

circumstances. See Hiner v. Hadeed, 15 Va. App. 575, 580, 425 

S.E.2d 811, 814 (1993). We conclude that the trial court erred 

by limiting the duration of the custody order, and we reverse 

the decision to prospectively limit its restriction on the 

wife’s residence to three years. 

Similarly, we conclude that the trial court erred when it 

relieved the wife of the burden of proving a change in 

circumstances when she petitioned for review of the custody 

decision. When modifying a decree that denied permission to 

remove a child from the state, the trial court applies a 

two-part test: a material change in circumstances since the 

last custody award, and a determination that relocation is in 

the child’s best interest. See Keel v. Keel, 225 Va. 606, 611, 

303 S.E.2d 917, 921 (1983); Parish v. Spaulding, 26 Va. App. 

566, 573, 496 S.E.2d 91, 94 (1998), aff'd, 257 Va. 357, ___ 

S.E.2d ___ (1999); Bostick, 23 Va. App. at 535, 478 S.E.2d at 

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523. Here, the trial court lacked authority to alter the 

two-part Keel test. A petition for modification of a custody 

decree must include a showing of a change in circumstances. 

The husband next assigns as error the refusal of the trial 

court to follow the experts’ recommendation regarding 

visitation. "[T]he best interests of the child are paramount" 

in determining visitation of a non-custodial parent. Wilson v. 

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

(citation omitted). Determination of visitation rights is a 

matter of judicial discretion. See Eichelberger v. 

Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986). 

When the trial court considers all the factors outlined in Code 

§ 20-124.3, "it is not 'required to quantify or elaborate 

exactly what weight or consideration it has given to each of the 

statutory factors.'" Sargent v. Sargent, 20 Va. App. 694, 702, 

460 S.E.2d 596, 599 (1995) (quoting Woolley v. Woolley, 3 Va. 

App. 337, 345, 349 S.E.2d 422, 426 (1986)). "It is well 

established that the trier of fact ascertains [an expert] 

witness' credibility, determines the weight to be given 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). 

While it may be ideal for a child to have daily contact 

with both parents, this is not always practical when the parties 

are divorced. The trial court considered all relevant factors, 

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carefully weighed the extensive evidence from four experts, and 

attempted to establish a stable routine for the child. It gave 

the father liberal visitation rights. Though it did not grant 

visitation every day, the father received weekend overnight 

visitation, frequent visitation during the week, and some 

overnight visitation during the week. The trial court acted 

within its discretion when it declined to follow the precise 

recommendations of the husband’s experts. It was not required 

to adopt totally the views of expert witnesses, and the evidence 

supported the visitation schedule established by the trial 

court. 

The husband argues that the trial court erred in refusing 

to impute income to the wife when determining both spousal and 

child support. Code §§ 20-107.1(1) and 20-108.1 set forth the 

factors that the trial court is to consider in making spousal 

and child support determinations. Support decisions rest within 

the sound discretion of the trial court and will not be reversed 

unless plainly wrong or unsupported by the evidence. See

Bennett v. Dep't of Social Servs., Div. of Child Support 

Enforcement, 22 Va. App. 684, 691, 472 S.E.2d 668, 672 (1996); 

Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 

(1994). 

We view the evidence in the light most favorable to the 

wife, the prevailing party below. See Cook v. Cook, 18 Va. App. 

726, 731, 446 S.E.2d 894, 896 (1994). The evidence established 

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that the mother’s last full-time job was in 1994 when she earned 

an annual income of $31,200 in California as a television 

production assistant. The husband’s vocational expert testified 

that the wife could earn $30,000 to $40,000 based on her resume 

and the opportunities available in the Charlottesville area. 

This expert, however, identified no jobs actually available to 

the wife. The wife testified that she unsuccessfully sought 

employment upon moving to the area but had only worked 

intermittently since then. She testified there were no jobs 

available in her field of television production. Except for 

minimum-wage jobs, the evidence of job availability and pay was 

conflicting. The wife did not feel it practical to earn minimum 

wage and pay for day care when she could personally care for the 

young child herself. The husband testified that he did not 

“particularly like the option of day care . . . .” 

The trial court did not abuse its discretion in refusing to 

impute income to the wife. See Saleem v. Saleem, 26 Va. App. 

384, 494 S.E.2d 883 (1998) (no error in refusing to impute where 

custodial parent was asked to resign her prior employment); 

Bennett, 22 Va. App. at 691-92, 472 S.E.2d at 672 (no error 

where age of child and circumstances did not permit custodial 

parent to be gainfully employed); Theismann v. Theismann, 22 Va. 

App. 557, 573, 471 S.E.2d 809, 816-17 (1996). Not being 

permitted to return to Colorado limited the employment and 

earning potential of the wife while the child was very young. 

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Both parties emphasized the importance to them of both the 

father and mother having close contact during the early 

development of their daughter. Given the age of the child, the 

wife’s role as a full-time mother before the separation, and the 

limitation placed on her so the child could enjoy a substantial 

relationship with both parents, the trial court did not abuse 

its discretion in refusing to impute income to the wife. See

Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 23 (1993) 

(need evidence of recent past earnings). She was entitled to 

continue the lifestyle to which she was accustomed during the 

marriage. See Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 

396 S.E.2d 675, 679 (1990). 

The husband next contends that the trial court erred in 

awarding the wife spousal support and attorney’s fees and in 

ordering him to pay more than his ability to pay. The trial 

court ordered the husband to pay $850 in spousal support and 

$680 in child support. He contends that the trial court erred 

in finding he had the ability to pay. We disagree. 

Evidence was presented on all statutory factors, including 

the parties’ agreed upon equitable distribution payments and the 

duration of the marriage. In addition to his salary of $63,000, 

the husband had equity in his home, a retirement plan, and 

$14,000 in an IRA account. The wife had spent her IRA and was 

$4,500 in debt. The parties were not financially equal. The 

wife made a financial and career sacrifice in moving to 

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Charlottesville. It was a proper exercise of discretion to 

award spousal support and attorney’s fees. The award of spousal 

support and attorney’s fees is within the sound discretion of 

the trial court and will not be reversed on appeal unless 

injustice results. See Brooks v. Brooks, 27 Va. App. 314, 498 

S.E.2d 461 (1998); Lightburn v. Lightburn, 22 Va. App. 612, 620, 

472 S.E.2d 281, 285 (1996) (wife's sacrifice in moving is 

appropriate consideration for spousal support determination). 

The wife concedes that the trial court erred in failing to 

account for the spousal support award before calculating child 

support. See Code § 20-108.2(G)(1); Frazer v. Frazer, 23 Va. 

App. 358, 477 S.E.2d 290 (1996). We remand this matter for 

reconsideration of the child support award because any deviation 

in the combined award is best determined by the trial court. 

Finally, the wife contends that the trial court erred in 

permitting the husband’s experts to testify because the 

substance of their testimony was not disclosed in a timely 

fashion, and the bases for their opinions were not fully 

disclosed. We disagree. 

The husband designated his experts on November 21, 1997, 

but he did not provide the details of their testimony or the 

bases of their opinions. At the pretrial hearing December 11, 

1997, the trial court extended the deadline for completing 

discovery to December 31, 1997. On January 5, 1998, the husband 

provided the wife a designation of the testimony of two of the 

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four experts. The trial court refused to exclude the experts 

from testifying because it found the husband had substantially 

complied with the discovery order. The trial court did exclude 

their testimony concerning facts or opinions not stated in the 

designation. 

The wife presented no evidence that she made any effort to 

depose or investigate the substance of their testimony during 

the period of discovery. The trial court had the discretion to 

modify the deadline for completing discovery. The fact that the 

court sua sponte extended the date for compliance with 

discovery, without more, is not an abuse of discretion. Absent 

a showing of prejudice, there is no abuse of discretion with 

respect to discovery issues. See Rakes v. Fulcher, 210 Va. 542, 

546, 172 S.E.2d 751, 755 (1970). 

The wife requests that this Court award her attorney’s fees 

incurred during the appeal. Both parties appealed from 

provisions of the final decree, and both prevailed on certain 

issues. The appeals were not frivolous, and we find no other 

reasons to justify ordering the husband to pay the wife’s 

attorney’s fees incurred for this appeal. See O'Loughlin v. 

O'Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). 

The motion is denied. 

For the foregoing reasons, we reverse the trial court's 

order to the extent that it limited the duration of its decree 

and relieved the wife of proving a change in circumstance when 

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petitioning for a review. We remand for recalculation of the 

support award, and we affirm all other rulings. 

 

 Affirmed in part, reversed

 and remanded in part, 

 reversed and final judgment

 in part.

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