                                 COURT OF APPEALS OF VIRGINIA


Present: Judges McClanahan, Petty and Senior Judge Annunziata
Argued at Alexandria, Virginia


DIMITRIOS S. MASTORAS
                                                                MEMORANDUM OPINION * BY
v.      Record No. 1794-07-4                                  JUDGE ROSEMARIE ANNUNZIATA
                                                                      JUNE 10, 2008
REBECCA A. MASTORAS


                        FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                    R. Terrence Ney, Judge

                   David M. Zangrilli, Jr. (Odin, Feldman & Pittleman, P.C., on briefs),
                   for appellant.

                   Mary Elizabeth White (Surovell Markle Isaacs & Levy, PLC, on
                   brief), for appellee.


        Dimitrios S. Mastoras (father) appeals a decision of the trial court modifying the terms of

the parties’ visitation schedule and denying his motion for a change in custody. Both father and

Rebecca A. Mastoras (mother) request an award of attorney’s fees expended on appeal. For the

reasons that follow, we affirm the decision of the trial court. We decline to award either party

attorney’s fees.

                                               Background

        The parties were divorced by final decree entered on December 15, 2004. They had one

minor child. The parties’ Custody, Support and Property Settlement Agreement (“the

agreement”) dated March 5, 2004, was affirmed, ratified, and incorporated into the final divorce

decree. Pursuant to the agreement, the parties have joint legal custody of the child.



        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       The agreement contains a “Parenting Schedule” provision, which provides, in pertinent

part: “The parties agree that the Wife shall have primary care of [the child] except for those

times when [the child] is with the Husband as provided in the parenting schedule below.”

Paragraph 5(A)(2) provides in part: “Commencing approximately May 2, 2004 when the

Husband’s work schedule changes, the parties shall rearrange the above schedule so that each

party has [the child] approximately fifty (50%) of the time.” In addition, Paragraph 5(F),

“Changes to Schedule,” of the agreement states:

               In accordance with the regular schedule that will commence on
               approximately May 2, 2004, the Wife shall have [the child] with her
               approximately fifty percent (50%) of the time and the Husband shall
               have [the child] with him approximately fifty percent (50%) of the time.
               . . . In the event that the Husband’s work schedule is changed or [the
               child] starts school, the parties agree that they shall rearrange the regular
               schedule, if necessary, such that each party has approximately fifty
               percent (50%) of the time with [the child].

       In February 2007, father filed a motion to modify custody and visitation, requesting

primary physical custody of the child and a change in the visitation schedule. In addition, father

asked the trial court to order that the child attend school in Fairfax County. Mother filed a

response to father’s motion and a cross-motion for modification of visitation. Mother requested,

among other things, that the trial court grant her “primary residence of” the child as

contemplated by the parties in the agreement and order that the child attend school in the location

of the child’s primary residence. Mother also asked the trial court to modify father’s visitation

schedule with the child during the school year, the summer months, and holidays.

       The presented evidence at a hearing held on June 18 and 19, 2007 established that mother

resides in Leesburg, the father in Centreville and that the child would begin kindergarten in




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September 2007. Father’s evidence also established that he has remarried and that the child has

a good relationship with his new wife. 1

          In the final order entered on June 26, 2007, the trial court incorporated its rulings from

the bench, stating, “The transcript of the Court’s ruling is attached hereto and incorporated

herein, and the terms there of shall be a part of this order.” The order also noted, inter alia, that

the “precipitating factor” bringing the matter before the court was the child starting school. It

further noted that the mother lives in Leesburg where “she has primary physical residence of the

child” and that father lives in Centreville. It found both parties were fit parents.

          Addressing the father’s motion to award him primary physical custody of the child, the

court interpreted the term, “primary physical residence,” as used in the agreement, to mean “the

primary place where a child will attend school.”2 It further found that the parties signed the

agreement, knowing mother had moved to Leesburg, where the child’s primary physical

residence would also be located. It, therefore, concluded that the circumstances relating to where

the parties had agreed the child would live and attend school had not changed. The trial court

accordingly denied father’s motion to award him primary physical custody and change the

child’s primary physical residence from Leesburg to Fairfax, as well as father’s motion for an

order modifying mother’s visitation were primary custody to be awarded to him. The court

granted mother’s motion to modify father’s visitation on the ground that the current schedule was

no longer workable. Father appeals the trial court’s decision. For the reasons that follow, we

affirm.




          1
          Father’s evidence that mother is an unfit parent was not material to the court’s decision
since, as the court found, the allegations concerned pre-divorce instances of mother’s conduct.
          2
              Father’s counsel conceded these facts in the trial court.
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                                             Analysis

       “A trial court’s decision, when based upon an ore tenus hearing, is entitled to great

weight and will not be disturbed unless plainly wrong or without evidence to support it.”

Lanzalotti v. Lanzalotti, 41 Va. App. 550, 554, 586 S.E.2d 881, 882 (2003) (citing Venable v.

Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986)).

       “When a trial court has entered a final custody and visitation order, it cannot be modified

absent (i) a showing of changed circumstances under Code § 20-108 and (ii) proof that the

child’s best interests under Code § 20-124.3 will be served by the modification.” Petry v. Petry,

41 Va. App. 782, 789, 589 S.E.2d 458, 462 (2003) (footnote omitted). See also Keel v. Keel,

225 Va. 606, 611, 303 S.E.2d 917, 921 (1983) (“[F]irst, has there been a change in circumstances

since the most recent custody award; second, would a change in custody be in the best interests

of the children.”). “‘Whether a change in circumstances exists is a factual finding that will not

be disturbed on appeal if the finding is supported by credible evidence.’” Ohlen v. Shively, 16

Va. App. 419, 423, 430 S.E.2d 559, 561 (1993) (quoting Visikides v. Derr, 3 Va. App. 69, 70,

348 S.E.2d 40, 41 (1986)).

       The trial court’s denial of father’s motions to award him primary physical custody, to

change the child’s primary physical residence, to order the child attend school in Fairfax, and to

modify mother’s visitation schedule on the ground that a material change of circumstances had

not occurred since the parties entered into the agreement is supported by credible evidence.

Referring to the agreement as the “governing document” in determining whether a change of

circumstances had occurred, the trial court underscored the fact that the parties signed the

agreement, knowing mother had moved to Leesburg where she had “primary physical residence

of the child,” and knowing the child would start school while living with mother. Clearly, the

circumstances relating to the child’s primary physical residence and her expected entry into

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school had not changed since the court’s prior order. In the absence of a change of

circumstances being proved, the trial court is without authority to modify child custody and we

find that its denial of father’s petition for change of custody, including the child’s primary

residence, her school, and her visitation schedule with mother was without error. 3

       Turning then to the court’s grant of mother’s motion to modify father’s visitation

schedule, the trial court identifies two factors as significant to its decision that a change of

circumstances warranting a modification of father’s visitation schedule had occurred: the child’s

entry into kindergarten, which it describes as the “precipitating factor which brings this matter to

the Court’s attention,” and the location of the parents’ residences. Orally addressing the time the

child had been able to spend with each parent under the court’s prior order, the court observed:

               It has been better for this child to be with her father than to be in
               day care. But that has become or is about to become history,
               because the child is going to be in school all day or is going to be
               in school and day care all day. The circumstances that have
               provided the genesis for this agreement [that the child will spend
               fifty percent of the time in the care of each parent] are in some
               respects simply disappearing, because as the child grows, she goes
               to school and/or day care, and that is going to change matters. 4


       3
          Although the court found that father’s remarriage constituted a change in circumstances,
the court concluded that the change “does not amount to a change in circumstances such as
contemplated by the applicable Virginia law governing cases of this nature,” a finding, by
implication, that the change in father’s marital status, in light of mother’s fitness as a parent, was
not sufficient to establish that it was in the child’s best interest to award him primary physical
custody and to modify the child’s primary residence. We find no reversible error in these
findings and rulings. Cf. Visikides, 3 Va. App. at 71-72, 348 S.E.2d at 41 (finding mother’s
remarriage, having another child, and ability to stay at home with the children was material
change in circumstances). See also Turner v. Turner, 3 Va. App. 31, 35, 348 S.E.2d 21, 23
(1986) (first prong of Keel test met where noncustodial parent showed remarriage has stabilized,
child had undergone changes and had expressed a preference in living with the noncustodial
parent).
       4
         Indeed, father conceded in his testimony that the schedule was no longer workable, and
his counsel argued:

               There is no doubt that there has been a material change of
               circumstance since the final decree was entered back in December
                                               -5-
       We find that the evidence in this case supports the court’s ruling that a change of

circumstances occurred warranting a modification of the child’s visitation schedule during the

school year and leaving the summer visitation schedule intact. The difficulties of implementing

an equal division of custodial and visitation time with the child once the child started school are

patent, when considered in light of the distances separating the parties’ residences.

       Father also argues the trial court erred by failing to award him additional visitation and

the trial court erred by failing to consider the Code § 20-124.3 (best interests of the child)

factors. However, the trial court orally reviewed these factors at the hearing and provided a

thorough analysis of its decision at the hearing. Code § 20-124.3 provides the court shall

communicate the basis of its decision “either orally or in writing.” Therefore, father’s argument

is without merit. Furthermore, both parties conceded that some of the factors were inapplicable

to the case. In addition, “[t]he 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.” Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986).

The record supports the trial court’s decision concerning the modified visitation.

       Both parties request attorney’s fees expended on appeal. See O’Loughlin v. O’Loughlin,

23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Upon consideration of the entire record in this

case, we hold that neither party is entitled to costs or attorney’s fees in the matter. “[W]e find

the litigation addressed appropriate and substantial issues . . . .” Estate of Hackler v. Hackler, 44

Va. App. 51, 75, 602 S.E.2d 426, 438 (2004). Therefore, each party’s request for an award of

fees and costs on appeal is denied.




               of ‘04. The first one is [the child] is about to start school. Because
               of the distance between the parties caused by [mother] moving to
               Loudoun, the current schedule just really can’t work anymore.

                                                 -6-
For the above stated reasons, we affirm the decision of the trial court.

                                                                           Affirmed.




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