                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Baker, Elder and Fitzpatrick


MURRAY L. STEINBERG
                                                 MEMORANDUM OPINION *
v.   Record No. 2557-96-2                            PER CURIAM
                                                    JULY 15, 1997
KATHERINE T. STEINBERG


                                         FROM THE CIRCUIT COURT OF
HENRICO COUNTY
                      L. A. Harris, Jr., Judge
            (Murray L. Steinberg, pro se, on briefs).

            (Murray J. Janus; Bremner & Janus, on
            brief), for appellee.



     Murray L. Steinberg (father) appeals the decision of the

circuit court denying his motion to modify the visitation

schedule shared with Katherine T. Steinberg Shumaker (mother).

In a previous appeal, we remanded this matter to the trial court

for it to hold an evidentiary hearing.   See Steinberg v.

Steinberg, Record No. 2315-95-2 (Va. Ct. App. June 18, 1996).       In

this appeal, father contends that the circuit court (1) lacked

subject matter jurisdiction; (2) erred in denying father's

recusal motion; (3) denied father and daughter due process and

equal protection of the law; (4) violated the First Amendment

rights of father and daughter; (5) erred in finding no

substantial change in circumstances; (6) erred in failing to

consider the statutory factors set out in Code § 20-124.3; (7)
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
erred in failing to consider Code § 20-124.2; (8) caused the

child to be "abused or neglected" under Code § 16.1-228; and (9)

violated Rule 5A:8 by relying upon the hearing transcript rather

than father's proposed written statement of facts.     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.

                                Issue 1
     Father once again raises the issue whether the circuit court

had subject matter jurisdiction to initially decide custody.      The

initial custody decision was appealed and affirmed.      See

Steinberg v. Steinberg, Record Nos. 1839-91-2, 2036-91-2,

2172-91-2 (Va. Ct. App. Feb. 9, 1993).      Father's current

challenge to the circuit court's jurisdiction rests on

allegations of fraud and factual determinations in connection

with mother's divorce action filed in the circuit court.       Among

other allegations, father contends that there was no cause

pending in the circuit court because mother's bill of complaint

was flawed.   However, those challenges were not raised at the

time of the initial appeal.
          Generally, a judgment or decree rendered by a
          court having jurisdiction over the parties
          and subject matter must be challenged by
          direct appeal and cannot be attacked
          collaterally. A party may, however, assail a
          void judgment at any time, by direct or
          collateral attack. Although a judgment
          obtained by "extrinsic fraud" is void and,
          therefore, subject to direct or collateral
          attack, a judgment obtained by "intrinsic
          fraud" is merely voidable and can be


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challenged only by direct appeal or by a
direct attack in an independent proceeding.




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               "Intrinsic fraud" includes perjury, use
          of forged documents, or other means of
          obscuring facts presented before the court
          and whose truth or falsity as to the issues
          being litigated are passed upon by the trier
          of fact. A collateral attack on a judgment
          procured by intrinsic fraud has been deemed
          not warranted because the parties have the
          opportunity at trial through
          cross-examination and impeachment to ferret
          out and expose false information presented to
          the trier of fact. When a party discovers
          that a judgment has been obtained by
          intrinsic fraud, the party must act by direct
          attack or appeal to rectify the alleged wrong
          and cannot wait to assail the judgment
          collaterally whenever it is enforced.


Peet v. Peet, 16 Va. App. 323, 326-27, 429 S.E.2d 487, 490 (1993)

(citations omitted).   Father's challenge to the subject matter

jurisdiction of the circuit court is based upon allegations of

intrinsic fraud.   Father cannot make that challenge by collateral

attack.

                              Issue 2

     The recusal decision is left to the sound discretion of the

trial judge.   See Deahl v. Winchester Dep't. of Social Servs.,

224 Va. 664, 672-73, 299 S.E.2d 863, 867 (1983).   The trial judge

stated that he could give appellant a fair hearing.   Upon

reviewing the record, we find no abuse of discretion in the trial

judge's decision to deny father's motion to recuse.
                              Issue 3

     Father's allegation that he was denied due process in the

custody determination on April 21, 1991 is without merit.    The

record demonstrates that mother's motion to quash father's



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interrogatories and requests for admission was timely received.

     Father also argues that the trial court denied him due

process and/or equal protection of the law by not ruling on his

motion for a change in the parenting arrangements, custody or

transportation of the child; not allowing him to present evidence

on his motion for recusal; and not swearing him in as a witness

prior to his testimony.

     A custody determination was not before the court.    The

remand from this Court concerned a visitation dispute.    The trial

court entertained father's arguments on that issue.
     Father cites to no statutory or case law, and we know of

none, that requires a trial court to hear evidence on a recusal

motion.

     Finally, the transcript of the evidentiary hearing clearly

states that father was "duly sworn" prior to his testimony.

     Having considered father's additional allegations that he

was denied due process and equal protection of the law, we find

those allegations without merit.

                             Issue 4

     Father contends that the current custody arrangement

unconstitutionally impinges on his freedom of religion.   There is

no evidence in the record that the child's exercise of religion

is impeded or impaired by the custody arrangement.    On the

contrary, the record reflects that father has been able to expose

the child to religious training through his visitation on




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alternative weekends and Jewish holidays.      Moreover, in the order

from which father appeals, the court granted a modification of

father's regular Tuesday afternoon visitations so that the child

could attend religious school, as father requested.      The trial

court found no evidence that mother was interfering with the

daughter's exposure to Judaism.   Father's challenge to the

current custody arrangements on First Amendment grounds is not

supported by the record.

                           Issues 5 and 6

     "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.

595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted).      In

considering a petition to change child custody, a trial court

applies a two-part test to determine "(1) whether there has been

a [material] change of circumstances since the most recent

custody award; and (2) 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).
          [D]espite changes in circumstances, there can
          be no change in custody unless such change
          will be in the best interests of the
          children. The second prong, then, is clearly
          the most important part of the two-part test.
          It underscores the importance we place upon
          securing the best interests of children whose
          interests, in the final analysis, must be
          protected by the courts.


Keel v. Keel, 225 Va. 606, 612, 303 S.E.2d 917, 921 (1983).




                                  6
     The trial court received the evidence presented by the

parties, including father's evidence challenging the quality of

the child's current school and day care, and heard the testimony

of the witnesses.   The transcript demonstrates that the court

allowed father to present relevant evidence concerning changed

circumstances.   The court concluded however, that, with the

exception of an extended visit on Tuesdays for religious school,

a change in the current custody arrangements was not warranted.

The evidence supports the trial court's conclusions, and, as

noted below, it is clear that the decision was made with the best

interests of the child as the foremost concern.
     While father contends that the court failed to consider the

child's best interests, the record demonstrates the opposite.

The court remarked on how well the child continues to function,

despite the numerous custody hearings.   The court noted that it

"has set what it feels is the best visitation for the child."    It

also noted that
          [w]e've been through [what would make the
          parents work better together] a number of
          times and the Court has set what it feels to
          be the best interest of the child. And I
          would have to say from the results things are
          not going particularly bad at this particular
          time as far as [the child] is concerned.
          That's my only concern.


In fact, the court found that the child "continues to do

extremely well."    Therefore, we find no evidence that the trial

court failed to consider the best interests of the child, as

required under Code § 20-124.3.



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                               Issue 7

     The visitation arrangement allowed the parties equal time

with the child.   Under the appealed order, father was granted an

extension of his Tuesday visitations.    Father's argument that the

court's decision violated Code § 20-124.2 is without merit.

                               Issue 8

     The trial court found that father's contentions that the day

care and elementary school placed the child at risk were

unsupported by the evidence.   The court noted that the child

continued "to do extremely well" in her current arrangement.    The

mere fact that the day care may care for some dysfunctional

children, or that the elementary school near father's home had

higher standardized test scores than the child's current school,

does not mean that the child is an abused or neglected child

within the meaning of Code § 16.1-228.
                               Issue 9

     Father timely filed a proposed Written Statement of Facts.

Mother objected to the statement and filed a transcript of the

hearing.   The trial court ruled that the transcript of the

hearing constituted the Statement of Facts.   Rule 5A:8 allows the

trial judge to make corrections, additions, and certifications of

the manner in which the record is incomplete.   We find no error

in the trial court's decision to rely upon the hearing transcript

rather than father's proposed written statement.    See White v.
Morano, 249 Va. 27, 452 S.E.2d 856 (1995).




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     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                       Affirmed.




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