                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia


SHARONE DENI BOISSEAU
                                         MEMORANDUM OPINION *
v.   Record No. 2407-95-2                    PER CURIAM
                                          OCTOBER 22, 1996
JAMES MAURICE SCOTT


            FROM THE CIRCUIT COURT OF HENRICO COUNTY
                    L. A. Harris, Jr., Judge
          Marilynn C. Goss (Central Virginia Legal Aid
          Society, Inc., on brief), for appellant.

          G. Ronald Grubbs, Jr., for appellee.



     Sharone Deni Boisseau appeals the decision of the circuit

court awarding physical custody of the parties' child to James

Maurice Scott.   Appellant raises three questions on appeal:

(1) whether the trial court erred in denying appellant's motion

for a continuance and motion to rehear; (2) whether the trial

court erred in finding that a change of custody was in the best

interests of the child; and (3) whether the trial court erred in

finding appellant's relocation to Williamsburg was sufficient

grounds to change custody.   We conclude that there is sufficient

evidence in the record to support the circuit court's findings

and, accordingly, affirm the decision.

     On April 19, 1995, the Henrico Juvenile and Domestic

Relations District Court awarded appellant custody of the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
parties' son, Che' Mandell Boisseau, and child support payments

of $215.   The child's father, James Maurice Scott, appealed the

decision to the Circuit Court of Henrico County.

     At the circuit court hearing on August 28, 1995, appellant

appeared pro se and appellee appeared in person and by counsel.

Appellant requested a continuance to obtain counsel, explaining

that she had only been able to get an appointment with legal aid

for the morning of the hearing.   The court, after questioning

appellant about her efforts to obtain counsel, denied the motion.

Appellant proceeded to put on her case, examining three of her

own witnesses and cross-examining appellee and his witnesses.

Appellant's witnesses testified that appellant had been the

primary caretaker of the child and had provided for her son's

physical and emotional needs.   Appellant testified that she had

recently relocated with her parents and son to Williamsburg.

Appellant explained that she moved in order to get away from the

"verbal abuse" of appellee.   Appellee denied verbally abusing

appellant, and the parties disagreed as to whether notice had

been given to appellee of appellant's relocation.
     Appellee put on evidence of his positive and continuous

relationship with his son.    Appellee also testified that he had

regularly and willingly paid $25 a week in support for his son.

Appellant asserted that appellee had verbally abused her and

occasionally refused to give her funds.   It was also established

that appellee had fathered two other sons by two different



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mothers and that appellee had never been married to either

mother.    Appellee's current wife, with whom appellee has had no

children, testified that she would welcome Che' Mandell Boisseau

into her home.

        The court announced that it would award joint legal custody

to the parties and would take under advisement the issue of

physical custody.    A new hearing date was set for September 18,

1995.    At the September 18 hearing appellant again appeared pro

se and the appellee appeared in person and by counsel.      After

questioning appellant about her current place of residence and

learning that she still resided in Williamsburg and had taken

steps to enroll her son in school there, the court announced its

decision, awarding sole physical custody to appellee.      The order

was entered on September 20, 1995, and on that day, appellant, by

counsel, filed a Motion to Stay the Order Transferring Custody

and Grant a Rehearing.    Appellant's motion was argued October 10,

1995, where both parties were represented by counsel.      The

circuit court denied the motion.
                        Motion for Continuance

        "'The decision whether to grant a continuance is a matter

within the sound discretion of the trial court.      Abuse of

discretion and prejudice to the complaining party are essential

to reversal.'"     Lowery v. Commonwealth, 9 Va. App. 304, 307, 387

S.E.2d 508, 509 (1990) (citation omitted).       See Autry v. Bryan,

224 Va. 451, 454, 297 S.E.2d 690, 691-92 (1982).



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     The record demonstrates that appellee appealed the district

court's order on April 20, 1995.       Appellant appeared without

counsel at the July 10, 1995 docket call.      When the trial date

was set, the court urged appellant to retain counsel.      On the

August 28, 1995 trial date, appellant came to court with three

witnesses but requested a continuance to obtain counsel.      The

appellee was present with counsel and witnesses.      The court

denied her motion, but granted her substantial latitude in the

presentation of her case.   Although the trial judge set another

hearing date and took under advisement the question of physical

custody of the child, appellant failed to obtain counsel for that

hearing.   Only after the court entered judgment, did appellant

obtain counsel, who filed a motion to rehear, alleging that

appellant tried to obtain counsel immediately after the July

docket call, but the earliest appointment she could get was for

the day of trial.
     Appellant has not demonstrated that the trial court abused

its discretion in denying her motion for a continuance or that

she was prejudiced by the denial.      The record established that

both parties had witnesses present and that appellant had been

earlier urged to come to court with counsel.      Appellant called

witnesses in her own behalf, testified herself, and

cross-examined the witnesses called by appellee as well as

appellee himself.   Therefore, the trial court did not abuse its

discretion in denying appellant's request for a continuance.




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                      Best Interests of the Child

     "In matters concerning custody and visitation, the welfare

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).       The trial

court is vested with broad discretion to make the decisions

necessary to safeguard and promote the child's best interests,

and its decision will not be set aside unless plainly wrong or

without evidence to support it.        Farley v. Farley, 9 Va. App.

326, 327-28, 387 S.E.2d 794, 795 (1990).

     The trial court ruled that the best interests of the child

would be served by granting physical custody to appellee.       The

evidence demonstrated that appellee and his new wife lived in a

three-bedroom home.    Both parents were college-educated and had

stable jobs.   Appellee had made arrangements for his child to

attend the local school and participate in neighborhood sports

activities.    Witnesses testified that appellee was involved with

his son and had a good relationship with him.       Appellee's new

wife testified that her ten-year-old son currently lived with

them and got along well with appellee's son and that she was

supportive of appellee's desire to have his son live with them.

     Appellant's witnesses testified that she was a good mother

who was actively involved with her son's school and regularly

took him to church.    Appellant testified that, although she was

presently unemployed, in the past five years she had worked



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through agencies doing day work, babysitting, and cleaning.

Appellant lived with her disabled parents and had done so for a

number of years.   They lived in an apartment in the Richmond area

and had recently moved to another apartment in Williamsburg.   The

testimony indicated that appellant and her parents had relocated

to Williamsburg "because 'she felt like it.'"   Appellant

testified that the move "was only temporary" and she intended to

return "sometime."
     The trial court noted that it considered the evidence heard

ore tenus as well as the statutory factors set out in Code

§§ 20-124.2 and 20-123.3 before determining that it was in the

best interests of the child to award physical custody to

appellee.   Credible evidence supports the finding of the trial

court.

                      Appellant's Relocation

     The trial court questioned why appellant relocated from the

Richmond area to the Williamsburg area.   Appellant alleged that

appellee had subjected her to verbal abuse.    Appellant's

witnesses indicated that appellant moved merely because she

wanted to do so, and appellant herself indicated that the move

was only temporary.   Appellee denied any verbal abuse and

testified that appellant had been less cooperative in

facilitating visitation when she learned he was getting married.

     The court found that the move to Williamsburg was

detrimental to the child's best interests, and continued the



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matter to allow appellant to return with the child to the

Richmond area before ruling on physical custody.   At the

subsequent hearing, appellant appeared without counsel and

indicated that she had enrolled the child in school in

Williamsburg.

     Credible evidence supports that trial court's determination

that appellant's move away from the area where the child had the

opportunity to have a substantial relationship with his father

was not in the child's best interests.   Appellee's home was

stable and provided the benefits of a neighborhood setting with

additional activities appropriate for children.    Moreover, the

evidence proved that the appellant was unemployed and did not

prove that the "temporary" move to Williamsburg provided any

benefit to the child.
     Prior to the filing of the custody petition in the juvenile

and domestic relations district court, no court order existed

determining custody of the child.    Thus, appellee was entitled to

a de novo hearing in the circuit court upon his appeal from the

initial custody determination by the juvenile court.     Peple v.

Peple, 5 Va. App. 414, 419, 364 S.E.2d 232, 236 (1988).     "A de

novo hearing means a trial anew, with the burden of proof

remaining upon the party with whom it rested in the juvenile

court."   Parish v. Spaulding, 20 Va. App. 130, 132, 455 S.E.2d

728, 729 (1995) (citations omitted).   At the de novo hearing, the

primary issue was the best interests of the child.     Kogon, 12 Va.




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App. at 596, 405 S.E.2d at 442.

     Accordingly, the decision of the circuit court is affirmed.

                                                  Affirmed.




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