                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


TAMMY GAIL WALDEN COLE

v.   Record No. 1570-95-1                        MEMORANDUM OPINION *
                                                     PER CURIAM
ROBERT CLARK COLE                                 FEBRUARY 27, 1996


           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                      John E. Clarkson, Judge

            (George A. Christie; Christie & Kantor, on
            brief), for appellant.
            (Henry M. Schwan; Allan D. D. Cahill, on
            brief), for appellee.



     Tammy Gail Walden Cole (mother) appeals the decision of the

circuit court awarding Robert Clark Cole (father) physical

custody of the parties' minor daughter.   Mother also argues that

the trial court erred in disqualifying the opinion testimony of

her expert witness; crediting father with $6,000 from the sale

proceeds of the parties' North Carolina property; and failing to

award mother her costs and attorney's fees.   Father contends the

trial court erred by failing to award him his attorney's fees and

costs.   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.
     The evidence was heard by the commissioner in chancery, to

whose report father filed numerous exceptions.      The trial court
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
accepted the majority of father's exceptions.    On review, we note

that the commissioner's report
          should be sustained unless the trial court
          concludes that the commissioner's findings
          are not supported by the evidence. This rule
          applies with particular force to a
          commissioner's findings of fact based upon
          evidence taken in his presence, but is not
          applicable to pure conclusions of law
          contained in the report. . . . [W]here the
          chancellor has disapproved the commissioner's
          findings, this Court must review the evidence
          and ascertain whether, under a correct
          application of the law, the evidence supports
          the findings of the commissioner or the
          conclusions of the trial court. Even where
          the commissioner's findings of fact have been
          disapproved, an appellate court must give due
          regard to the commissioner's ability, not
          shared by the chancellor, to see, hear, and
          evaluate the witnesses at first hand.


Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296-97 (1984)

(citations omitted).

                             Custody

     "In matters of custody . . . 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. 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. at 327, 387 S.E.2d at 795 (citations omitted).    Factors to be

considered when determining a child's best interests include,



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among others, the child's age and physical and mental condition,

"giving due consideration to the child's changing developmental

needs;" "the relationship existing between each parent and each

child, giving due consideration to the positive involvement with

the child's life . . .;" and "[t]he role which each parent has

played and will play in the future, in the upbringing and care of

the child."   Code § 20-124.3(1), (3), and (5).

     Contrary to mother's assertion, the court's opinion,

rejecting the recommendation of the commissioner in chancery that

custody of the child be so ordered to her, demonstrates that the

court applied the appropriate legal standard to its determination

of custody.   The court discussed the statutory factors, noting

that "the past . . . is the best prognostication for the future."

Based upon the "majority of the evidence from the hearing and

the social history" prepared for the district court, the trial

court concluded that father was "a good father" and "the best

caretaker" who "had a positive, continuing involvement with the

child" and "to the best of his ability under extremely difficult

situations, met the emotional, intellectual, educational and

physical needs of the child."   In assessing mother's role, the

court noted that she
          does not now have custody of her son from a
          former marriage, at one time, deserted the
          child of this marriage by moving out and has
          committed adultery and continues to live with
          a male during the time that this divorce has
          been filed. She apparently does not believe
          that a father can raise a daughter.




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      The child's teachers testified that father was on the

school's volunteer list and participated in school activities and

field trips.     Father enrolled the child in ballet and gym

classes.     There was evidence that mother reduced her visitation

with the child to accommodate the fact that her companion was

away only one night.

      While the court stated that it found "no legal reason to

change custody at this time," the court did not impose upon

mother any requirement to demonstrate a change in circumstances

meriting a change in custody.     The court's ruling demonstrates

that it considered the evidence to determine which parent would

provide the child with the best primary residence at this time.
      Based upon our review of the evidence, we find that the

evidence supports the conclusion of the trial court that the best

interests of the child were served by granting father physical

custody.

          Disqualification of Expert Witness' Opinion Testimony
      The trial court accepted, without comment, the following

exception by father to the commissioner's report:     "2.   The

Commissioner's erroneous custody recommendation is found upon the

opinions of a unqualified alleged 'expert' nurse (Michele

Zimmerman); objections to the qualifications of this witness as

an expert witness and to the opinions of that witness were timely

made." 1
      1
      It is unclear from this exception, and from the record as a
whole, whether the trial court determined that Zimmerman did not



                                    4
     Zimmerman testified that she was a clinical nurse

specialist, with a master's degree in psychiatric and mental-

health nursing, and was board-certified as a specialist in both

adult and child/adolescent psychiatric nursing, and was certified

in family therapy.   Zimmerman also testified that she was a

practicing psychotherapist, but was neither a psychiatrist nor a

psychologist.   Zimmerman noted that she had published in the

areas of addictions, child sexual abuse and stress management,

and wrote a unit in a book for persons taking advanced practice

boards on the diagnosis and treatment of child and adolescent

psychiatric disorders.   Zimmerman was offered as an expert in

child and adolescent psychology in order "to talk about

evaluations of children and family relations."
     In her testimony, Zimmerman admitted that she had not met

father and she had little information about the child's life with

her father.   Conclusions she drew about father were based on the

information received from mother.    The trial court did not, and

was not required to, "accept as conclusive the opinion of an

expert."   Lassen v. Lassen, 8 Va. App. 502, 507, 383 S.E.2d 471,

474 (1989).   Thus, while Zimmerman may have been qualified as an

expert, we cannot say the trial court erred in rejecting her

opinion.

     Zimmerman stated that "all things being equal, two equally

qualify as an expert or that she did qualify but that the court
nonetheless rejected her opinions. For our purposes, we assume
the latter.



                                 5
loving and competent parents . . . it makes sense for the child

to be with the same-sex parent."       The trial court determined that

the parents were not equal and that father was the better

caretaker. 2   Evidence supports the trial court's decision.

Therefore, we find no reversible error in the decision of the

trial court to reject the opinion of mother's expert witness.

                          Traceable Funds

     The parties agreed that the $6,000 received by father as an

advance on his inheritance was his separate property, and that

father used that money as part of the down payment on the

purchase of the parties' property in North Carolina.      Code
§ 20-107.3(A)(1)(ii).   Under the statutory scheme, property can

be classified as part marital and part separate, and marital

property includes "all property titled in the names of both

parties . . . except as provided by subdivision A 3."      Code

§ 20-107.3(A)(2)(i). In particular, the statute states:
          e. When marital property and separate
          property are commingled into newly acquired
          property resulting in the loss of identity of
          the contributing properties, the commingled
          property shall be deemed transmuted to
          marital property. However, to the extent the
          contributed property is traceable by a
          preponderance of the evidence and was not a
          gift, the contributed property shall retain
     2
      Zimmerman also stated that "most child experts would agree
that, given a little girl of tender years, that it is in a
child's best interests to be with the same-sex parent." Code
§ 20-124.2(B) provides that "[a]s between the parents, there
shall be no presumption or inference of law in favor of either."
Reliance upon a "tender years" presumption or inference in
custody determinations is reversible error. Visikides v. Derr,
3 Va. App. 69, 72, 348 S.E.2d 40, 42 (1986).




                                   6
            its original classification.


Code § 20-107.3(A)(3)(e) (emphasis added).    Moreover, under

subsection (g), "[n]o presumption of gift shall arise under this

section where (i) separate property is commingled with jointly

owned property . . . ."    The classification of the property "is

determined by the statutory definition and is not determined by

legal title."    Garland v. Garland, 12 Va. App. 192, 195, 403

S.E.2d 4, 6 (1991).
     Father traced the use of his separate property as part of

the funds used to purchase the North Carolina property.    The fact

that the property was jointly titled did not create a presumption

of a gift by father.    Mother presented no other evidence to prove

the $6,000 was a gift.    Therefore, the trial court did not err in

allowing father to recover his separate funds from the sale

proceeds.

                       Attorney's Fees and Costs

     Awards of attorney's fees or costs are matters submitted to

the sound discretion of the trial court and are reviewable on

appeal only for an abuse of discretion.     Graves v. Graves, 4 Va.

App. 326, 333, 357 S.E.2d 554, 558 (1987).     Cf. Donald v. Fairfax

County Dep't of Human Dev., 20 Va. App. 155, 160-62, 455 S.E.2d

740, 743-44 (1995).    The key to a proper award of counsel fees or

costs is reasonableness under all the circumstances.     McGinnis v.

McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).

     The trial court required the parties to pay their own



                                   7
attorney's fees and share the costs equally.   We cannot say that

the trial court abused its discretion in denying either party an

award of attorney's fees and in splitting the costs.




                                8
     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                  Affirmed.




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