                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


JOHN R. ZAMPOLIN
                                           MEMORANDUM OPINION *
v.   Record No. 1647-99-2                      PER CURIAM
                                            DECEMBER 28, 1999
MARY ELIZABETH BARNUM HICKS


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Theodore J. Markow, Judge

           (David B. Hargett; Morrissey & Hershner, PLC,
           on brief), for appellant.

           (Susan C. Armstrong; Melissa J. Roberts;
           Mays & Valentine, L.L.P., on brief), for
           appellee.



     John R. Zampolin appeals the decision of the circuit court

granting the petition of Mary Elizabeth Barnum Hicks to modify

visitation.   Zampolin raises the following issues:   (1) whether

the circuit court had jurisdiction when a Petition for Custody was

filed by Zampolin in the juvenile and domestic relations district

court before Hicks filed a Petition for Reinstatement in the

circuit court; (2) whether the trial court erred by refusing to

receive and properly consider the son's testimony as to his

preference; and (3) whether the trial court abused its discretion

in evaluating the evidence and determining the best interests of


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the child.   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.    See Rule 5A:27.

                            Jurisdiction

     The circuit court awarded Hicks legal and physical custody

of the parties' son and referred this matter to the juvenile

court.    On March 14, 1996, the circuit court reinstated the

case, denied Hicks' Motion to Modify Decree, and struck the

matter from the docket without referring it to the juvenile

court.    On July 21, 1997, the circuit court granted Zampolin's

motion to reinstate the matter, later denied Zampolin's motion

to modify custody, visitation and child support, and struck the

matter from the docket without referring it to the juvenile

court.    When Hicks filed a Petition to Show Cause in the circuit

court on November 6, 1997, alleging support arrearages, the

circuit court referred that issue to the juvenile court.

     On April 8, 1999, Zampolin filed in the juvenile court a

motion to amend custody, and Hicks filed in the circuit court

her petition to modify visitation.      The circuit court granted

Hicks' petition to reinstate the case on the circuit court's

docket.

     We find no error in the circuit court's exercise of

jurisdiction.   The record clearly establishes that custody and

visitation matters were not transferred to the juvenile court

after being reinstated in the circuit court.     The order entered

                                - 2 -
October 10, 1997 struck the case from the docket after denying

Zampolin's petition to modify custody, visitation, and child

support.   It did not create concurrent jurisdiction with the

juvenile court.    Cf. Crabtree v. Crabtree, 17 Va. App. 81, 84,

435 S.E.2d 883, 886 (1993) (holding that a transfer from a

circuit court to a juvenile court pursuant to Code § 20-79(c)

"conveys concurrent jurisdiction on the [juvenile court] to hear

those matters, but . . . does not divest the circuit court of

its continuing jurisdiction to consider those issues, should it

exercise its discretion to do so").     Moreover, in the absence of

a transfer, the juvenile court lacked jurisdiction to hear this

matter.    Therefore, the circuit court retained jurisdiction to

reinstate the matter.   Zampolin's contention that Hicks engaged

in "forum shopping" is without merit.

               Consideration of the Child's Preference

     Zampolin contends that the circuit court erred by failing

to consider the preference of the parties' son, Jack, contrary

to the requirement of Code § 20-124.3(7).    We find this

contention to be without merit.

     By order entered June 18, 1999, the circuit court granted

Hicks' motion to modify visitation due to her upcoming

relocation to Georgia with her current husband.    Code

§ 20-124.3(7) provides:

            In determining best interests of a child for
            purposes of determining custody or
            visitation arrangements including any

                                - 3 -
             pendente lite orders pursuant to § 20-103,
             the court shall consider the following:

             *        *       *      *      *      *      *

             7. The reasonable preference of the child,
             if the court deems the child to be of
             reasonable intelligence, understanding, age
             and experience to express such a preference
             . . . .

     The circuit court spoke with the child in camera, noting

that "I don't want him to think there's some repercussion from

whatever he tells me."       Neither party objected to the trial

judge's in camera discussion.        We find no abuse of discretion in

this procedure, which was clearly designed to allow the court to

hear from the child without imposing upon him the unconscionable

task of expressing a preference in front of his parents or their

representatives.

     After meeting with Jack, the trial court noted that he was

"an impressive young man" and that "it was a pleasure to talk

with him."       In its written order, the trial court acknowledged

that "[Jack's] preference is that he not leave Richmond.          This

is expressed more in the normal apprehension of the unknown than

a preference for one parent over the other."       Therefore, the

trial court considered the preference expressed by the child, as

well as its basis.        We will not reverse the trial court's

evaluation of testimony heard ore tenus.




                                    - 4 -
                     Best Interests of the Child

     As the party seeking to modify visitation, Hicks bore the

burden to prove that a change of circumstances occurred and that

such a change in visitation would be in the best interests of

the child.   See Code § 20-108.     See also Parish v. Spaulding,

257 Va. 357, 513 S.E.2d 391 (1999); Hughes v. Gentry, 18 Va.

App. 318, 321, 443 S.E.2d 448, 450-51 (1994).     "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).     Trial

courts are vested with broad discretion in making the decisions

necessary to guard and to foster a child's best interests.         See

Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795

(1990).   It was uncontested that there was a change in

circumstances due to Hicks' pending relocation to Georgia with

her new husband.   "'The court, in the exercise of its sound

discretion, may alter or change custody or the terms of

visitation when subsequent events render such action appropriate

for the child's welfare.'"   Wilson v. Wilson, 18 Va. App. 193,

195, 442 S.E.2d 694, 695-96 (1994) (quoting Eichelberger v.

Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986)).

The trial court's evaluation of the best interests of the child

will not be disturbed on appeal if the court's findings are



                                  - 5 -
supported by credible evidence.    See Walker v. Fagg, 11 Va. App.

581, 586, 400 S.E.2d 208, 211 (1991).

     Zampolin contends that the circuit court failed to properly

weigh the evidence and failed to consider the best interests of

the child before granting Hicks' motion to modify visitation.

The trial court heard the evidence, including the testimony of

the parties and their witnesses.   In making its decision, the

trial court expressly considered the statutory factors set out

in Code § 20-124.3.   The court noted that it found "no factor

weighing in favor of or against either parent, except as

specifically discussed here."   The court then noted that,

          [f]rom the earliest times, [Zampolin's]
          hostility toward [Hicks] has prevented any
          significant cooperation with the mother.
          His testimony at the hearing was heavily
          weighted toward tearing down [Hicks] as
          opposed to emphasizing his strengths. For
          years he has kept copious notes and diaries
          recording instances which he believes will
          show the mother in a negative light. . . .
          His record keeping is not reflective of
          someone attempting to work with the other
          parent for their child's good, but rather a
          disposition to build a case for an advantage
          over [Hicks] and to cast her in a negative
          light. At the hearing, [Zampolin] made no
          meaningful proposal or plan to enable the
          son to maintain a relationship with his
          mother should he gain custody. When asked
          that question, it was apparent that he had
          given the subject no consideration
          whatsoever.

Based upon the evidence, including the testimony of the parties,

and after considering the statutory factors, the trial court

granted Hicks' motion to modify visitation.   The circuit court's

                                - 6 -
decision was based upon its evaluation of the testimony heard

ore tenus and its determination of the child's best interests.

The trial court also considered but rejected Zampolin's Motion

for Reconsideration, in which Zampolin raised at length the

arguments on which he based this portion of his appeal.

Credible evidence supports the trial court's factual

determinations.   We find no grounds to reverse the trial court's

exercise of its discretion authority.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                          Affirmed.




                               - 7 -
