                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bumgardner and Lemons


STEPHEN SANTORO AND
 DONNA SANTORO
                                             MEMORANDUM OPINION *
v.   Record No. 1801-99-1                        PER CURIAM
                                               FEBRUARY 8, 2000
PATSY OWENS


           FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
                        AND COUNTY OF JAMES CITY
                         Thomas B. Hoover, Judge

             (Stephen Paul Santoro; Donna Starks Santoro,
             pro se, on brief).

             No brief for appellee.


     Stephen Santoro and Donna Santoro (the Santoros) appeal the

decision of the circuit court denying their Motion to Vacate the

April 21, 1993 custody order of the Juvenile and Domestic

Relations District Court for the City of Williamsburg and County

of James City (domestic relations court).    On appeal, the Santoros

contend the 1993 order of the domestic relations court was void

because the domestic relations court failed to appoint a guardian

ad litem to represent the children whose custody was at issue.

The Santoros also contend on appeal that the trial court erred by

failing to hear evidence on their motion.    Upon reviewing the

record and opening brief, we conclude that this appeal is without


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
merit.   Accordingly, we summarily affirm the decision of the trial

court.   See Rule 5A:27.

     The record on appeal does not contain a transcript, but does

include the Amended Written Statement of Facts signed by the trial

judge.

                 Appointment of a Guardian ad Litem

     The Santoros contend that the 1993 order of the domestic

relations court was void because the court did not appoint a

guardian ad litem as required by Code § 16.1-266(A).   The trial

court found that the Santoros' Motion to Amend Custody did not

require the appointment of a guardian ad litem under Code

§ 16.1-266(A).   We agree.

     In pertinent part, Code § 16.1-266(A) provides:

           Prior to the hearing by the court of any
           case involving a child who is alleged to be
           abused or neglected or who is the subject of
           an entrustment agreement or a petition
           terminating residual parental rights or is
           otherwise before the court pursuant to
           subdivision A 4 of § 16.1-241, the court
           shall appoint a discreet and competent
           attorney-at-law as guardian ad litem to
           represent the child pursuant to
           § 16.1-266.1.

In contrast, subsection (D) provides:

           In all other cases which in the discretion
           of the court require counsel or a guardian
           ad litem to represent the interests of the
           child or children or the parent or guardian,
           a discreet and competent attorney-at-law may
           be appointed by the court. However, in
           cases where the custody of a child or
           children is the subject of controversy or
           requires determination and each of the

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             parents or other persons claiming a right to
             custody is represented by counsel, the court
             shall not appoint counsel or a guardian ad
             litem to represent the interests of the
             child or children unless the court finds, at
             any stage in the proceedings in a specific
             case, that the interests of the child or
             children are not otherwise adequately
             represented.

        The record indicates that the Santoros repeatedly called

the James City County Department of Social Services (DSS) during

1991 and 1992 with allegations of child abuse by the children's

custodian, paternal grandmother Patsy Owens, and a paternal

aunt.     DSS determined that the complaints were unfounded.      The

matter pending before the domestic relations court at the time

of the 1993 order was the Santoros' motion to change custody.

Therefore, the case was not properly characterized as one

involving "a child who is alleged to be abused or neglected" so

as to come within the scope of Code § 16.1-266(A).     Instead, it

was a case "where the custody of a child or children is the

subject of controversy" under Code § 16.1-266(D).     Under the

latter section, the trial court was not required to appoint a

guardian ad litem for the child.     Accordingly, the trial court

properly found that there was no merit to the Santoros' argument

that the unappealed 1993 order was void.

                          Evidentiary Hearing

        The Santoros also contend that the trial court erred by

failing to conduct an evidentiary hearing on the "nature, source,

and effects of abuse allegations made during the court of the

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litigation that produced" the 1993 order.   Whether to receive

evidence is a matter left to the discretion of the trial court,

whose decision will not be reversed in the absence of an abuse of

that discretion.   The question raised by the Santoros was strictly

a question of law, not fact.   Therefore, the trial court did not

abuse its discretion in refusing to conduct an evidentiary

hearing.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                         Affirmed.




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