COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

JOHN S. LEWIS 

 MEMORANDUM OPINION*

v. Record No. 1915-96-4 PER CURIAM 

 FEBRUARY 18, 1997 

KATHLEEN A. CALLAHAN 

 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Richard B. Potter, Judge 

 (Robert B. Machen, on briefs), for appellant. 

 (Margaret B. Craig; Surovell, Jackson, Colten & 

Dugan, on brief), for appellee. 

 John S. Lewis appeals the decision of the circuit court 

denying his motions to change custody and reduce or eliminate 

child support. The trial court ruled that Lewis had failed to 

demonstrate a basis to transfer sole custody of the parties' 

child, Joshua, from Kathleen A. Callahan. Lewis presents fifteen 

questions on appeal, and argues that the court failed to consider 

the factors set out in Code § 20-124.3 in determining the child's 

best interests. 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. 

 Rule 5A:27. 

Change of Custody

 "In matters concerning custody and visitation, the welfare 

 

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

designated for publication. 
 2 

and best interests of the child are the 'primary, paramount, and 

controlling considerations.'" Kogon v. Ulerick, 12 Va. App. 595, 

596, 405 S.E.2d 441, 442 (1991) (citation omitted). In 

considering a petition to change child custody, a trial court 

applies a two-part test to determine "(1) whether there has been 

a [material] change of circumstances since the most recent 

custody award; and (2) whether a change in custody would be in 

the best interests of the child." Visikides v. Derr, 3 Va. App. 

69, 70, 348 S.E.2d 40, 41 (1986). 

 The trial court is required to consider the factors set out 

in Code § 20-124.3 when making custody and visitation decisions 

in the child's best interests. Lewis' issues one through eleven 

and fifteen challenge the trial court's decision that Callahan 

retain sole custody. As the party seeking reversal of the trial 

court's decision, Lewis bears the burden to demonstrate error by 

record proof. Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 

S.E.2d 384, 387 (1991). 

Issues 1 and 2. Lewis contends the court abused its 

discretion in allowing Callahan to retain sole custody because it 

was not in Joshua's best interest to stay in day care before and 

after school. Lewis alleged that, because he worked at home, he 

could care for Joshua. 

 The trial court noted that the evidence indicated that 

Joshua's "experience in day care has been a good one and a 

positive one. So, I don't think there is anything detrimental in 
 3 

day care in this case." Furthermore, noting that Lewis' efforts 

to restore his income to previous levels would take him away from 

home, the court determined that the issue of day care was not 

sufficient ground to change custody. We find no abuse of 

discretion in the court's determination. 

Issue 3. Lewis argues that day care prevented Joshua from 

interacting with his teenage half-siblings each day. As noted 

above, the trial court found the issue of day care was an 

insufficient basis for modifying custody. 

Issues 4, 6, 8, 10 and 11. Lewis contends that the trial 

court abused its discretion by failing to consider evidence of 

the parties' respective willingness to cooperate with each other. 

See Code § 20-124.3(6). In support of his contention, Lewis 

argues that he demonstrated his ability to cooperate through his 

good relationship with his first ex-wife and her family. Lewis 

called his first ex-wife and former mother-in-law as witnesses. 

They testified that they had good relationships with Lewis and 

endorsed Lewis' abilities as a father. 

 Lewis claimed that Callahan refused to cooperate with him, 

made false allegations of abuse by the half-siblings, and would 

not allow additional visitation and contacts unless ordered to do 

so by the court. In its ruling, the court expressly addressed 

the parties' ability to cooperate with each other. Having seen 

the witnesses and heard their testimony, the court concluded that 

"there has been some miscommunications in the past," that 
 4 

"[t]here has been some animosity and some mistakes in 

communication . . . by both parents in this case," and that "both 

of them have overreacted at certain times." Thus, contrary to 

Lewis' contention, the trial court concluded that both parents 

had been less than fully cooperative. 

 "The court is the judge of the credibility of the witnesses, 

and its findings are of great weight on appeal." Klein v. Klein, 

11 Va. App. 155, 161, 396 S.E.2d 866, 869 (1990). The court 

considered the statutory factor and made its ruling based upon 

the evidence presented and its assessment of the witnesses' 

credibility. Lewis has not demonstrated that the trial court 

abused its discretion in its weighing of this factor. 

Issue 5. Lewis contends, without reference to the record, 

that Callahan refused to allow him to have telephone contact with 

Joshua. "We will not search the record for errors in order to 

interpret the appellant's contention and correct deficiencies in 

a brief." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 

237, 238 (1992). Lewis has failed to demonstrate reversible 

error relating to this issue. 

Issue 7. Lewis testified about an incident in which 

Callahan threatened him with court action if he visited Joshua's 

day care without her knowledge. He contends that the incident 

demonstrates her inability to cooperate in matters affecting the 

child. As noted above, the trial court considered the parties' 

respective cooperation, and we find no abuse of discretion in the 
 5 

trial court's determination. 

Issue 9. Lewis contends, without citation to authority or 

the record, that Callahan was unable to instill family values in 

Joshua. The court found that Callahan had been a good and 

responsible mother. We do not address this contention further. 

Buchanan, 14 Va. App. at 56, 415 S.E.2d at 238. 

Issue 15. Finally, Lewis contends that the trial court 

abused its discretion by failing to consider the adverse health 

consequences to Joshua of being in the sole custody of Callahan. 

 The trial court found Joshua to be in generally good physical 

health. 

 In terms of his physical health, he has had 

respiratory infections. There is no expert 

evidence presented as to the cause of those 

infections, other than to say they appear to 

be normal infections, seasonal infections 

during the winter months, including no expert 

testimony as to the impact of smoking by 

[Callahan] on Joshua. 

 Obviously, smoking would have impact on 

somebody with respiratory problems. But 

other than [Lewis'] opinion, I do not have 

any evidence as to any impact of that 

smoking. And, in any event, she has 

testified that she gave up smoking in 

February of 1996, so it is a moot issue as 

far as I am concerned today. 

Therefore, there is insufficient evidence to support Lewis' 

contention on appeal. 

Child Support

 "Once a child support award has been entered, only a showing 

of a material change in circumstances will justify modification 
 6 

of the support award. The moving party has the burden of proving 

a material change by a preponderance of the evidence." Crabtree 

v. Crabtree, 17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993). 

 In Issue 12, Lewis contends the trial court failed to 

consider the expenses paid by him for his two other children when 

determining child support for Joshua. The record demonstrates 

that the court considered those expenses and reduced Lewis' 

support payment. The court specifically noted that "while 

[Lewis] seeks a reduction in child support for Joshua, it can be 

noted that he seeks no support relief for [the half-siblings]." 

We find no abuse of discretion on the part of the trial court. 

 In Issue 13, Lewis contends that the court failed to 

consider his ability to provide day care when making the support 

award. See Code § 20-108.2(F). The court considered, but 

rejected, Lewis' ability to provide day care, noting that as 

Lewis returned to his full earning capacity, he would likely be 

available less freely. Lewis has not demonstrated reversible 

error on the part of the trial court. 

Ex Parte Motion

 Lewis contends, without citation to the record or to 

authority, that the trial court erred by reviewing an "ex parte 

motion to dismiss." The certificate of service in the record 

demonstrates that Lewis was served with the motion by both 

facsimile and hand delivery. Moreover, there is no indication in 

the record that Lewis raised any objection to this motion or its 
 7 

subsequent denial by the court. Therefore, we do not consider 

this contention further. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.