                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia


LEWIS H. CLEMENTSON
                                              MEMORANDUM OPINION *
v.   Record No. 1859-96-2                   BY JUDGE MARVIN F. COLE
                                                 JUNE 24, 1997
NANCY TAYLOR CLEMENTSON, n/k/a
 NANCY LLOYD


              FROM THE CIRCUIT COURT OF HENRICO COUNTY
                       George F. Tidey, Judge
            Lawrence D. Diehl for appellant.

            Thomas Scott Word, III, for appellee.



     In this child custody cause, the appellant, Lewis H.

Clementson (father), challenges the sufficiency of the evidence

to support the trial court's determination that the best

interests of Elizabeth and Douglas Clementson would not be served

by transferring their custody to him, the children's father.   We

find no merit to this contention and affirm.
                                 Facts

     Lewis and Nancy Taylor Clementson, now Nancy Taylor Lloyd,

(mother) were married on June 25, 1977.    They have three

children:   David, born August 2, 1980; Elizabeth, born December

6, 1982; and Douglas, born May 28, 1987.   Father is a practicing

attorney.   Mother is a school teacher.   The parties separated and

mother filed a bill of complaint on August 27, 1990, requesting a
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
divorce on the grounds of cruelty and desertion.   She also

requested spousal support, custody of the children, and equitable

distribution of the marital property.   Father filed an answer

stating that he wanted the relationship to continue, but, in the

alternative, he requested custody of the children.

     On January 2, 1991, the trial court entered a consent order

granting temporary custody of Elizabeth and Douglas to the mother

and temporary custody of David to the father.   Visitation rights

were agreed to by the parties.
     On January 22, 1991, a hearing was held concerning child

custody, child support, spousal support, and other matters.    The

trial court found it in the best interests of the parties and the

children that they all submit to medical, psychological and/or

psychiatric examinations.   They were ordered to attend all

sessions required and to submit to all testings determined

necessary by Dr. Dennis L. Hawley, a psychologist.   Dr. Hawley

was ordered to prepare a report with recommendations regarding

custody and visitation of the children.   The trial court further

referred the matter to the Henrico County Department of Social

Services to conduct a home study of the two homes and to prepare

a report with recommendations regarding custody and visitation of

the children.   The temporary order entered on January 2, 1991

addressing child custody was continued in force.

     On June 5, 1992, the trial court granted a final divorce to

mother on the ground that the parties had lived separate and




                                 2
apart for one year, commencing December 21, 1990.      It affirmed,

ratified and incorporated by reference into the decree a property

settlement agreement dated May 28, 1992.      The trial court

declined to make a final determination of custody, child support,

and visitation and reserved these matters for future

consideration, and the award previously made was continued in

force.

     An ore tenus hearing was held on August 10, 13, and 28,

1992, on the question of permanent custody and support of the

children.   The record does not contain a transcript of this

proceeding, but we know that the psychological report and home

study previously ordered by the court were filed as evidence.
     Dr. Hawley's evaluation, dated March 26, 1991 and filed with

the court, included three individual sessions each with father

and mother, and a full psychological battery of tests on each

parent and each of the three children.      In addition, Dr. Doyle

Pruitt, a licensed clinical psychologist, saw each of the

children once individually and all three collectively.

     Dr. Hawley's report generally was favorable to the mother as

custodian of all three children.       As a result of the emotional

trauma and upheaval in the family, he thought that it was

important to keep all the children together.      As between the

parents, he felt that the mother was the least angry and

vindictive of the two and that the children would fare better

with the mother.



                                   3
     In a report dated April 18, 1991, the Henrico County

Department of Social Services made its recommendations.    A

representative from the agency interviewed both parents, visited

each home, and received additional information from school

teachers and others.   The agency reported that all three children

should be kept together and recommended that custody should be

awarded to the mother.

     A report of Dr. Joseph J. Crowley, Ph.D., clinical

psychologist, was introduced as an exhibit at the hearing.     Dr.

Crowley became involved on May 12, 1992, when mother's attorney

referred her to him to help Elizabeth deal with concerns she was

expressing to mother that she should be dominated by males.    In

addition, Dr. Crowley was asked to make recommendations to the

trial court regarding custody of the Clementson children.

Included in his report to the court was his assessment of father,

his assessment of mother, and his assessment of each of the three

children.
     The details contained in Dr. Crowley's report about the

family are significant.   All of the facts and circumstances

cannot be stated in this opinion.    However, his report

recommended that custody of all three children be awarded to the

mother.   Dr. Crowley reported that, although the father's style

is more charismatic, engaging and spontaneous, the mother is more

thoughtful, reflective and less spontaneous, and she has been

quite successful at maintaining an even hand in regard to the




                                 4
children.   Dr. Crowley further reported that the father had

changed very little over the past year and a half.      However, the

mother had shown substantial change in her own growth and

development.   He stated that she has been successful in pursuing

her vocational aspirations and has maintained herself as an

independent, well functioning adult.      He concluded that the

mother was the best suited to be the custodial parent, stating

that she maintained a sensible and balanced home environment.
     Based upon the evidence presented on August 10, 13, and 28,

1992, on November 16, 1992, the trial court entered a decree

awarding permanent custody of David to father and permanent

custody of Elizabeth and Douglas to mother.      Incidentally,

counsel for both mother and father asked for entry of the decree.

     On January 27, 1993, the trial court entered a decree fixing

child support and visitation rights.      In this decree, the trial

court restated the child custody provisions made in its decree of

November 16, 1992.

     Despite the fact that the trial court had finally resolved

all outstanding issues, problems continued to surface and

petitions continued to be filed.       On March 24, 1993, mother filed

a petition for suspension of visitation rights, alleging that

father was continuing to manipulate the children for his own

purposes, and that he was continuing to hamper and frustrate the

children's love for her.   On June 4, 1993, father filed a motion

for reduction in child support, and, on the same day, he filed a




                                   5
separate motion for change in custody.   On June 9, 1993, mother

filed a petition for modification of visitation rights to permit

her to relocate in Alabama.   On June 10, 1993, father filed a

petition to enjoin removal of Elizabeth and Douglas from the

state.    On June 18, 1993, mother filed a motion to quash

subpoenas served upon her to bring Elizabeth and Douglas to court

for a hearing scheduled on June 28, 1993.

     In an order entered on July 8, 1993, the trial court

disposed of all of the issues.   The trial court refused to permit

relocation of the children to Alabama and decreed that the order

of January 27, 1993, regarding visitation, custody, and child

support remain in effect.   Father's motions for change of custody

and reduction of child support were denied, and he was enjoined

from discussing mother's attempt to move to Alabama with

Elizabeth.
     A period of relative calm followed entry of the July 8, 1993

order.    Mother described this as a "happy" period.   During the

1996 spring break, Elizabeth and Douglas spent nine days with

father.   Mother testified that when the children returned home

from the visitation, there was a specific, observable change in

the children.   Elizabeth came back angry with mother.    She gave

no specifics, but just said she was angry and mad with her.

Douglas was also upset and mad at mother.   Douglas said that

father had taken him aside to have private talks.      In later

testimony, father denied that he had pushed, coaxed or




                                  6
brainwashed Elizabeth to come live with him.    He stated that

during "one of these more thorough discussions that we had, I

asked Elizabeth would she like somebody else to talk to about

this; and she said, 'Yes.'"

     Father testified that he and Elizabeth together contacted

Dr. George Bright of the Adolescent Health Center and that they

saw him on April 8, 1996.   Dr. Bright's billing office records

indicate that an office visit for psychotherapy was also made on

April 27, 1996.
     On April 29, 1996, Elizabeth disappeared from home after

being dropped off at home by her school carpool.    On April 30,

1996, father filed an emergency petition for custody, asking that

custody of Elizabeth and Douglas be awarded to him.    Mother

answered by filing a petition for suspension of father's

visitation rights.

     On May 10, 1996, a hearing was held on these issues.       At the

May 10, 1996 hearing, father called Dr. Bright and Dr. Elouise

Cobb as expert witnesses.   Two friends also testified on his

behalf.   At the conclusion of father's evidence, mother moved the

trial court to dismiss the petition because a material change in

circumstances had not been proved.    The trial court overruled

this motion and proceeded to hear the evidence based upon the

best interests of the children.   The trial court entered an order

on July 2, 1996, denying father's request for a change in the

custody of Elizabeth and Douglas.     This appeal followed.




                                  7
     At the May 10, 1996 hearing, Dr. Bright classified his

practice as adolescent medicine.       Dr. Bright testified that

Elizabeth asked him to have a meeting with her to discuss her

request for a hearing before a judge to request a change of

custody from her mother to her father.      At the initial stage of

the meeting, it was disclosed to Dr. Bright that mother was the

custodial parent.   Dr. Bright requested another member of the

Adolescent Health Center, Dr. Elouise Cobb, a clinical

psychologist, to join him and asked her if he could proceed with

the evaluation since father did not have custody.      According to

Dr. Bright, Elizabeth had requested that her mother not be

contacted.   Dr. Bright and Dr. Cobb determined that it was legal

and ethical for them to proceed. 1     Dr. Bright referred Elizabeth

to Dr. Cobb who performed a battery of standardized tests and

rendered a written report, which was introduced in evidence.

     Dr. Bright was asked to render an opinion on the emotional

status of Elizabeth.   He stated she "is a very anxious young lady

that shows indications of depression that's been there for a

period of time."    He further testified that she had no other

mental illness, but that she did have dysthymia.

     On cross-examination, Dr. Bright admitted that he had not

spoken to mother because his patient had told him not to do so.

His file contained reports from Dr. Doyle Pruitt, Dr. Stolberg

and Dr. Flynn which father had delivered to him, but he had no
     1
      We express no opinion on these two issues.




                                   8
knowledge of the reports of Dr. Dennis L. Hawley, the home study

report of the Henrico County Department of Social Services or the

extensive report of Dr. Joseph J. Crowley.   He did not have any

transcripts of any of the previous custody hearings upon the

question of custody that would have informed him of the

conflicting evidence in this case.    He did not contact the school

teachers to find out how Elizabeth or Douglas were doing in

school, although he reports that Elizabeth was doing well.      His

report taken from Elizabeth indicates that she participated in

track and cheerleading, school musicals, and her church choir.
     Dr. Cobb testified that her report was not intended as a

custody evaluation.    It was intended "to help us understand

Elizabeth's emotional status and her personal characterization

that would contribute to understanding her adjustment at that

time."

     In her report, Dr. Cobb stated that Elizabeth was a petite,

attractive young lady, and that she maintained a reserved

demeanor and a steady smile at all times.    Other signs indicated

that she was anxious.   When describing her mother, their

relationship and specific events in her life at home, Elizabeth

kept her smile, but her voice took on an angry tone.   Her

language patterns and vocabulary level were mature.    Her fine

motor skills were excellent.   In general, Elizabeth's response

style was thoughtful and evidenced good development of strategy

for problem solving.




                                  9
     Dr. Cobb testified there were a number of key findings from

the evaluation data.   One was that Elizabeth was an extremely

intelligent child -- a child of superior intellect.    She had some

areas of extraordinary cognitive ability.    Her verbal expressive

skills were high.    She achieved a score that was in the very

superior range on a measure of social knowledge and practical

reasoning ability.   However, there was a finding of weakness in

the area of ability to focus her mental activity to concentrate

and to apply her mental skills in a focused manner.    This was far

below average.
     Dr. Cobb gave no recommendation as to custody.       She

recommended that the court take another look at the current

living arrangements.   She admitted that she did not know all the

factors, but suggested that the data that she had indicated that

the current living situation was contributing to Elizabeth's poor

adjustment.

     Mother called as an expert witness Dr. Steven B. Robbins, a

professor and chair of psychology and professor of psychiatry at

Virginia Commonwealth University.     He is a licensed clinical

psychologist and has an active private practice.    Dr. Robbins had

reviewed the files of both Dr. Bright and Dr. Cobb.    He opined

that it undermines the credibility of the evaluation to consider

only one parent.    He stated that a psychologist has a

responsibility to bring all informed parties to the table,

clarify the rules, and to clarify consent and confidentiality.




                                 10
He also testified that doctors have a duty to check multiple

sources of information before making a diagnosis.

        Dr. Robbins testified that, based upon the information

contained in the files of Dr. Bright and Dr. Cobb, there was no

evidence of risks or endangerment to Elizabeth.    He noted that

the intake officer at the Adolescent Health Center checked her

personality as confident.    He stated that all three persons from

the Adolescent Health Center dealing with Elizabeth said she was

functioning well in school.    Socially, she was involved with

extracurricular activities.    Dr. Robbins also testified that

there was no report that she had been in trouble to warrant the

diagnosis of dysthymia.    It was his opinion that the medical

records do not support a diagnosis of dysthymia.
        Mother testified that she married Lawrence Lloyd on June 10,

1994.    She denied that Elizabeth had any sleeping disorder or

sleep walking problem.    She testified that she had no knowledge

that Elizabeth had gone any nights without sleeping.    She denied

that Elizabeth had any eating disorder.    She testified that

Elizabeth is a healthy eater, she is informed about nutrition,

and she drinks a lot of milk.    Mother stated that, lately,

Elizabeth has been following the track coach's regimen about

eating meals prior to track meets.

        Mother testified that Elizabeth attends Tuckahoe Middle

School and that she is an active member of the chorus there.      She

participates in musical productions, is a member of the track




                                  11
team, is a cheerleader, is active in church, and she takes part

in other school activities.   Mother presented Elizabeth's report

card showing all A's, except one B in math, with several

complimentary comments by her teachers.

     Mother testified that Elizabeth and Douglas had a good

relationship with her husband, Lawrence.

     Lawrence Lloyd testified that Elizabeth "seemed to be a

happy, normal, well adjusted teenager to [him].   She has lots of

friends and participates in a lot of activities at school and at

church."   He also stated that "[t]here have been occasions after

spending lengths of time with her father that she has come home

in rather strange moods."   He opined that after a while she came

out of them.
     Lawrence testified that Elizabeth eats like a "normal

teenager."   He stated that she sleeps normally and he observed no

disfunction in her sleeping habits.

     Lawrence testified that before Elizabeth went to father's

home for spring break, there was nothing noteworthy about her

attitude or emotions.   She seemed to be happy and a normal

person.    He testified that when Elizabeth came home after the

spring break, she was not distressed, but that she was not

respectful to her mother and was not responsive to her or him.

     Following the spring break and on the night that Elizabeth

ran away, (April 29, 1996), Lawrence had a conversation with

father in front of father's home when he carried David home.




                                 12
Father admitted that he knew that Elizabeth had run away and that

he had been notified of the incident by a "third party."     On this

occasion, father stated to Lawrence that it would be easy to

settle the matter.   All Lawrence had to do was to convince mother

that she could end the whole thing by agreeing to transfer

custody to father.   At that time, Lawrence had no knowledge about

any court hearing.

     In addition to the run-away on April 29, 1996, father makes

much of the fact that Elizabeth had run away on two previous

occasions.   In June of 1992, Elizabeth went to the home of her

paternal grandparents.   A custody hearing was scheduled on June

29, 1992.    In March of 1993, she went to a shopping center.    A

custody hearing was scheduled on June 28, 1993.     The record shows

that the only time Elizabeth ran away from home was in

preparation for a custody hearing.

                              Analysis

     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 in 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).     Where both parents are deemed

to be fit custodians, the trial court is accorded considerable

latitude in determining the custodial arrangement which will best

serve the child's future interests.      We will not reverse a




                                 13
decision entered pursuant to Code § 20-107.1 unless it is

apparent that the trial court abused its discretion by failing or

declining to consider all the enumerated factors.      See, e.g.,

Brooker v. Brooker, 218 Va. 12, 13, 235 S.E.2d 309, 310 (1977);

Bristow v. Bristow, 221 Va. 1, 3, 267 S.E.2d 89, 90 (1980).      The

decision of a trial court shall be upheld on appeal so long as it

is reasonably supported by substantial, competent, and credible

evidence.    See Canavos v. Canavos, 200 Va. 861, 866, 108 S.E.2d

359, 363 (1959).   "'For purposes of appellate review, a trial

court's determination is considered to have settled all conflicts

in the evidence in favor of the prevailing party, and the

prevailing party's evidence is entitled to all inferences fairly

deducible therefrom.'"    Haase v. Haase, 20 Va. App. 671, 684, 460

S.E.2d 585, 591 (1995) (citation omitted).     "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."      Hughes v. Gentry, 18 Va. App.

318, 321-22, 443 S.E.2d 448, 451 (1994).

     In this cause, the decision of the trial judge is peculiarly

entitled to respect because he saw the parties, heard the

evidence, has been in close contact with the family situation for

six years, and has had an opportunity to determine the

credibility of the witnesses and the weight to be accorded their

testimony.   This Court is limited to a review of the written

record, much of which was not transcribed, and we are handicapped



                                 14
by the absence of the transcripts from numerous hearings held

before the trial court.

     The trial court considered the best interests of both

Elizabeth and Douglas and found that custody should remain with

mother.   The trial court's decision has settled all conflicts in

the evidence, of which there are many.     The trial court's

decision is entitled to great weight.    It is our duty to uphold

its decision if it is supported by substantial, competent, and

credible evidence.   We find that it is.   Accordingly, we find

that the trial court did not abuse its discretion, and we affirm

the decree.

                                                      Affirmed.

Benton, J., concurring.

     The record in this custody case is extensive and reflects

that a high degree of contentiousness exists between the parents.

Because the trial judge heard ore tenus conflicting evidence,

including evidence that clearly supports the decree, we cannot

say that the trial judge's "determination is not without

substantial, competent, and credible evidence to support it."
Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796

(1990).   Therefore, I agree that the decree must be affirmed.




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