                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


KAREN RENEE TUCKER
                                               MEMORANDUM OPINION *
v.   Record No. 2014-97-3                          PER CURIAM
                                                 MARCH 24, 1998
JAMES CARL TUCKER


            FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
                    Duncan M. Byrd, Jr., Judge

           (M. Teresa Harris, on brief), for appellant.
            Appellant submitting on brief.
           (Laura L. Dascher; Jeanne M. Hepler; Pasco &
           Dascher, on brief), for appellee. Appellee
           submitting on brief.



     Karen Renee Tucker (mother) appeals the decision of the

circuit court awarding custody of the parties' son to James Carl

Tucker (father).    Mother contends that the trial court erred by

(1) exercising jurisdiction after the matter had been transferred

to the juvenile and domestic relations district court; and (2)

awarding custody to father.    We disagree and affirm the decision

of the trial court.
                             Jurisdiction

     Mother contends that the circuit court lacked jurisdiction

to hear father's motion for custody.    We disagree.   In Crabtree

v. Crabtree, 17 Va. App. 81, 84, 435 S.E.2d 883, 886 (1993), we

held that the transfer of "matters pertaining to support . . .

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and custody" to a juvenile and domestic relations district court

pursuant to Code § 20-79(c) does not divest the circuit court of

its continuing jurisdiction to consider those issues.      Under Code

§ 20-108,
            a circuit court, after entry of a final
            decree of divorce, has continuing
            jurisdiction to change or modify its decree
            as to matters affecting custody, support, and
            visitation of minor children. Thus, although
            a final divorce decree had been entered, when
            the case was reinstated on the docket of the
            circuit court, the case was "pending" for
            consideration of those matters over which the
            circuit court had continuing jurisdiction.


Crabtree, 17 Va. App. at 85, 435 S.E.2d at 886.

     In January 1996, the juvenile and domestic relations

district court entered a consent decree awarding the parties

joint custody.    Father filed his bill of complaint for divorce in

the circuit court in February 1996.      The circuit court entered

the final decree on April 12, 1996 and remanded "all future

matters regarding child custody, visitation and support" to the

juvenile and domestic relations district court.      In April 1997,

father filed a motion to reinstate the matter and to determine

custody.    Upon the filing of father's motion, the circuit court

had authority to reinstate the case and to consider father's

custody motion.
                               Custody

     "In matters concerning custody and visitation, the welfare

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

controlling consideration[s].'"       Kogon v. Ulerick, 12 Va. App.



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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.       See Farley v. Farley, 9 Va. App.

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

that there was a material change in circumstances.      Therefore,

the trial court was required to determine "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).

     Because the child was beginning school, the trial court

noted that it was essential that one parent have primary physical

custody.   The court found that father lived with his parents,

whose home had been the child's primary residence since birth;

that the preponderance of the evidence indicated that the child

had spent more time with father than with mother since September

1996; and that the child's current need for stability would best

be served by awarding primary physical custody to father.      The

court's decision was based upon the child's best interests and

was supported by the evidence.    Therefore, we find no indication

that the trial court abused its discretion.

     Accordingly, the decision of the circuit court is affirmed.

                                                            Affirmed.




                                  3
Benton, J., dissenting.

     For the reasons stated in my dissent in Crabtree v.

Crabtree, 17 Va. App. 81, 89-92, 435 S.E.2d 883, 888-91 (1993)

(Benton, J., dissenting), I do not agree with the majority's

conclusion that the circuit court had jurisdiction to consider

the father's motion.   I would hold that the circuit court judge

exceeded his power when he reinstated the case that had been

transferred to the juvenile and domestic relations district court

more than twenty-one days prior to the reinstatement order.

Because I would hold that the circuit court lacked jurisdiction,

I would not reach the merits of the mother's additional question.




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