                                 COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Clements and Senior Judge Coleman
Argued at Richmond, Virginia


TINA WILSON, F/K/A
 TINA M. EPLEY
                                                               MEMORANDUM OPINION * BY
v.       Record No. 0427-07-2                                  JUDGE SAM W. COLEMAN III
                                                                  DECEMBER 18, 2007
JAMES O. EPLEY


                    FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                                Ernest P. Gates, Judge Designate

                   Erica Burns (Richard L. Ducote; Shannon D. Lemm; Richard Ducote
                   & Associates, PLC; Joseph W. Hood, Jr. PC, on brief), for appellant.

                   W. Todd Watson (Hargett & Watson, PLC, on brief), for appellee.


         Tina Wilson, mother, appeals from the trial court’s decree modifying child custody and

visitation. On appeal, mother contends the trial court abused its discretion in awarding James O.

Epley, father, sole legal and physical custody of their minor child. Mother also argues the trial court

improperly considered certain evidence. Both parties request an award of attorney’s fees and costs.

We affirm the judgment of the trial court and grant father’s request for appellate attorney’s fees and

costs.

                                               Background

         The parties were divorced in 2003. The final divorce decree awarded the parties joint legal

custody of their then six-year-old daughter, with mother having primary physical custody. In

January 2005, both parties requested a modification of the custody award. By order entered on July

22, 2005, the juvenile and domestic relations district court granted father sole legal and physical

         *
             Pursuant to Code § 17.1-413, this opinion is not designated for publication.
custody of their daughter and awarded mother supervised visitation. Mother appealed the decision

to the trial court.

        The trial court held hearings in the matter on May 5, 2006, June 22, 2006, November 15,

2006, and January 18, 2007. The court heard testimony from numerous psychological experts, the

child’s teachers, lay witnesses, social workers, and the parents. Much of the evidence presented

addressed allegations that father had sexually and physically abused the child. A senior social

worker with Child Protective Services (CPS) who investigated the allegations of physical and

sexual abuse concluded that she believed the allegations to be unfounded. She testified that two

therapists who had counseled the child also did not believe the child was being truthful about the

abuse allegations and in their opinion the child was being coached.

        At the conclusion of the January 18, 2007 hearing, the trial court found that mother’s

repeated but unfounded allegations of abuse by father, mother’s hostile feelings toward father, the

problems caused by mother associated with visitation, and the stress in the familial relationship

created by mother were material changes in circumstances and those changes had been detrimental

to the child.

        In determining the custody/visitation arrangement that would serve the best interest of the

child, the court indicated it had considered all the factors of Code § 20-124.3. The court found that

when the child was either in father’s custody or was in foster care, the child’s aggressive nature and

behaviorial problems improved, however, when she was with mother or when mother had

unsupervised visitation with the child, the aggressive behavior returned. The court further found

that the child’s developmental needs were being met in her present school system, the child thrives

when she is not in mother’s custody, and father can more actively assess and meet the child’s

emotional, intellectual, and physical needs. The trial judge noted that both parents love the child,

but they have been unable to cooperate with custody arrangements. In addition, the trial court found

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that mother did not actively support the child’s contact and relationship with father, but, on the other

hand, father will encourage and support the relationship between the child and mother. Considering

the needs of the child and the relationship between the parents, the court awarded father sole legal

and physical custody of the child, with mother having visitation. Mother appealed the trial court’s

decision to this Court.

                                                Analysis

          Mother raises two issues on appeal: (1) whether the trial court improperly considered

certain evidence or failed to properly consider other evidence, and (2) whether the evidence was

sufficient to support the custody and visitation awards.

                 “In matters of custody, visitation, and related child care issues, the
                 court’s paramount concern is always the best interests of the
                 child.” Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794,
                 795 (1990). “In matters of a child’s welfare, trial courts are vested
                 with broad discretion in making the decisions necessary to guard
                 and to foster a child’s best interests.” Id. at 328, 387 S.E.2d at 795
                 (citing Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345
                 S.E.2d 10, 12 (1986)). “A trial court’s determination of matters
                 within its discretion is reversible on appeal only for an abuse of
                 that discretion . . . and a trial court’s decision will not be set aside
                 unless plainly wrong or without evidence to support it.” Id.
                 (citations omitted).

Goldhamer v. Cohen, 31 Va. App. 728, 734-35, 525 S.E.2d 599, 602 (2000).

          On appeal the trial court is presumed to have thoroughly weighed all the evidence,

considered all of the statutory requirements, and made its determination based on the child’s best

interests. Brown v. Spotsylvania Dep’t of Soc. Servs., 43 Va. App. 205, 211, 597 S.E.2d 214, 217

(2004).

                                           Evidentiary Issues

          We first address mother’s arguments that the trial court failed to consider the “family abuse

factor” of Code § 20-124.3(9) and improperly considered evidence that the child’s behavior

improved when she was not in mother’s custody.
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        In determining the best interests of a child, the court must consider all of the factors set forth

in Code § 20-124.3, Sargent v. Sargent, 20 Va. App. 694, 701, 460 S.E.2d 596, 599 (1995), and the

failure to consider all of the factors is reversible error. See Robinson v. Robinson, 5 Va. App. 222,

227, 361 S.E.2d 356, 358 (1987). However, a trial court need not “‘quantify or elaborate exactly

what weight or consideration it has given to each of the statutory factors.’” Sargent, 20 Va. App. at

702, 460 S.E.2d at 599 (quoting Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426

(1986)). The trial court’s findings, however, must have some foundation based on the evidence in

the record, and if the trial court’s findings lack evidentiary support, its determination of child

custody is an abuse of discretion. Cf. Trivett v. Trivett, 7 Va. App. 148, 153-54, 371 S.E.2d 560,

563 (1988).

        Here, the trial judge heard extensive evidence at four separate hearings extending over a

nine-month period dealing with evidence, both lay and expert, related to the allegations that father

had sexually, physically, and emotionally abused the child. Certain evidence called into question

whether father even had exercised visitation with the child during the time period when some of the

abuse allegedly took place. Numerous expert witnesses, social workers, and lay witnesses testified

for each party. The social worker who investigated the sexual and physical abuse allegations for

CPS concluded the allegations were unfounded. Several other expert witnesses questioned the

truthfulness and the validity of the allegations. The trial judge specifically found: “I do not find

from the evidence that the father physically and sexually abused [the child]. I have determined that

this allegation is unfounded.” Thus, the trial court considered the evidence related to Code

§ 20-124.3(9), and considered the credibility of the witnesses and the weight that should be

accorded their testimony and opinions and found the evidence failed to prove the child suffered

from any abuse by father. The factual finding was within the trial court’s purview as trier of fact.

“It is well established that the trier of fact ascertains a witness’ credibility, determines the weight to

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be given to [a witness’] 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). These

principles for resolving factual disputes apply to the testimony of both lay and expert witnesses. Id.

at 387-89, 488 S.E.2d at 668-69.

       Similarly, abundant evidence was presented at the four hearings from which the trial judge

could conclude that the child’s behavior improved when she was in father’s custody or when she

was in a foster home. “In determining whether credible evidence exists, the appellate court does not

retry the facts, reweigh the preponderance of the evidence, or make its own determination of the

credibility of the witnesses.” Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32,

35 (1991).

                                     Sufficiency of the Evidence

       Mother challenges the sufficiency of the evidence to support the finding that the best interest

of the child would be served by awarding sole legal and physical custody of the daughter to the

father. On appeal, in performing a sufficiency review we view the evidence in the light most

favorable to father, the party prevailing in the trial court. Petry v. Petry, 41 Va. App. 782,

785-86, 589 S.E.2d 458, 460 (2003). Thus, we will “discard the evidence of [mother] which

conflicts, either directly or inferentially, with the evidence presented by [father].” Id. at 786, 589

S.E.2d at 460.

       A party seeking to modify an existing custody order bears the burden of proving that a

material change in circumstances has occurred since the last custody determination and that the

circumstances warrant a change of custody to promote the child’s best interests. See Keel v.

Keel, 225 Va. 606, 611-12, 303 S.E.2d 917, 921 (1983). “Whether a change of circumstances

exists is a factual finding that will not be disturbed on appeal if the finding is supported by

credible evidence.” Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986).

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        Here the evidence was sufficient to support the trial court’s finding that a material change of

circumstances occurred since the most recent custody award. The record demonstrates that the trial

court carefully and thoroughly considered and weighed the evidence presented at the four hearings.

The trial judge went to great lengths to provide a case specific explanation of its custody

determination. The judge cited mother’s repeated abuse allegations that were determined by CPS

and by the trial judge to be unfounded, the problems and stress experienced by the child after

visitation with the mother, the positive change in the child’s behavior when she was in father’s

custody as compared to misbehavior after visiting with mother, and mother’s ill will and hostile

attitude toward father as material changes in circumstances that convinced the trial court that the

best interest of the child would be served by an award of custody to father. The father, the child’s

teachers, and a foster parent testified that the child’s behavioral problems diminished when she was

in father’s custody. This evidence supported the trial court’s findings that father met the

developmental needs of the child, that he could assess and meet her emotional, intellectual, and

physical needs, and that he would support the child’s relationship with mother. The trial judge saw

the witnesses, he heard their testimony, he had closely observed the custody/visitation situation for

several months while the case was pending before him, and he had the opportunity to determine the

credibility of the witnesses and parties and the weight to be accorded their testimony. The trial

judge specifically noted he had considered all the requirements of Code § 20-124.3 related to a best

interests of the child analysis. The trial court’s decision is entitled to respect and affirmation and

will be “‘reversible on appeal only for an abuse of that discretion, and a trial court’s decision will

not be set aside unless plainly wrong or without evidence to support it.’” Vissicchio v. Vissicchio,

27 Va. App. 240, 246, 498 S.E.2d 425, 428 (1998) (quoting Farley, 9 Va. App. at 328, 387 S.E.2d at

795). See also Brooks v. Rogers, 18 Va. App. 585, 587, 445 S.E.2d 725, 726 (1994).




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          Mother has not demonstrated that the trial court abused its discretion in its decision, and we

cannot say that the custody decision of the trial court was plainly wrong or without evidence to

support it. Accordingly, sufficient evidence supports the trial court’s finding that a change in

custody to the father was in the best interests of the child.

                                             Attorney’s Fees

          Both father and mother request costs and attorney’s fees for expenditures relating to this

appeal.

                  The rationale for the appellate court being the proper forum to
                  determine the propriety of an award of attorney’s fees for efforts
                  expended on appeal is clear. The appellate court has the
                  opportunity to view the record in its entirety and determine
                  whether the appeal is frivolous or whether other reasons exist for
                  requiring additional payment.

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Because this

appeal lacks merit, we grant father’s request for reasonable appellate attorney’s fees and costs.

See Miller v. Cox, 44 Va. App. 674, 688, 607 S.E.2d 126, 133 (2005). Accordingly, we remand

this case to the trial court for determination and award of the appropriate appellate attorney’s

fees and costs. Id.

          For these reasons, we affirm the judgment of the trial court, grant father’s request for

attorney’s fees and costs, and remand for determination of those fees and costs.

                                                                          Affirmed and remanded.




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