                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Bumgardner
Argued by teleconference


LAURA C. PANNER
                                      MEMORANDUM OPINION * BY
v.        Record No. 1739-97-2         JUDGE LARRY G. ELDER
                                          APRIL 14, 1998
BENJAMIN D. SILLMON


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     Timothy J. Hauler, Judge
          Edward D. Barnes (Charles E. Powers; Barnes &
          Batzli, P.C., on briefs), for appellant.

          Lawrence D. Diehl (Susanne L. Shilling;
          Shilling & Associates, on brief), for
          appellee.



     Laura C. Panner ("mother") appeals the trial court's order

granting the motion of Benjamin D. Sillmon ("father") to transfer

the physical custody of their daughter, Katie, to him.      Father

requests an award of attorney fees and costs incurred to defend

this appeal.   For the reasons that follow, we affirm and remand.

                                 I.

               STANDARD OF REVIEW AND BURDEN OF PROOF

     We disagree with mother's contention that the trial court

failed to apply a de novo standard of review to the J&DR court's
order granting father's motion and erroneously placed the burden

on her to prove that placing Katie in her physical custody was in

Katie's best interests.   After reviewing the record, we hold that
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the trial court was aware of and applied the correct standard of

review and burden of proof.

                               II.

                    DR. STOLBERG'S TESTIMONY

     Assuming that mother's motion was timely, we hold that the

trial court did not err when it denied her motion to strike the

testimony of Dr. Arnold L. Stolberg from the record.    The

evidence in the record regarding Dr. Stolberg's background

established that he was qualified to evaluate parenting skills

and to testify about the effects of divorce upon children.    The

evidence regarding Dr. Stolberg's possible bias was relevant to

his credibility as a witness and the weight of his opinion, not

to the admissibility of his testimony.   See Ford v. Ford, 200 Va.

674, 679, 107 S.E.2d 397, 401 (1959).

                              III.

                       EVIDENTIARY RULINGS

                               A.

    DR. STOLBERG'S TESTIMONY REGARDING MEALS IN CONCORD, N.C.

     Although expert testimony is inadmissible if it is

"speculative or founded upon assumptions that have an

insufficient factual basis," Tittsworth v. Robinson, 252 Va. 151,
154, 475 S.E.2d 261, 263 (1996), we hold that Dr. Stolberg's

testimony regarding the probable location of Katie's and father's

meals during future visitation in North Carolina was neither

speculative nor unsupported by the record.   Dr. Stolberg's




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understanding is supported by father's testimony regarding the

arrangements he would make when visiting Katie in North Carolina.

                                  B.

 FATHER'S TESTIMONY REGARDING THE PROCEEDINGS IN THE J&DR COURT

        We hold that the trial court did not abuse its discretion

when it admitted father's testimony regarding the proceedings in

the J&DR court.    Father testified about the approximate date that

he petitioned the J&DR court for a change in child custody and

the date of one of the parties' appearances before that court.

These factual issues were material to the trial court's

understanding of the case, and father's testimony tended to prove

them.
                                  C.

    FATHER'S TESTIMONY REGARDING THE FREQUENCY OF VISITATION

        We hold that the trial court did not err when it prevented

father from testifying regarding how frequently he believed

visitation with Katie should occur.    Because father's testimony

on this subject was not likely to indicate his propensity to

support Katie's relationship with mother under the custody

arrangement eventually ordered by the trial court, it was not

relevant to Code § 20-124.3(6).

                                  D.
                     MOTHER'S TESTIMONY REGARDING

                HER PROPENSITY TO COOPERATE WITH FATHER

        We hold that Rule 5A:18 bars us from considering mother's

argument that the trial court erred when it prevented her from



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responding to her counsel's question about her willingness to

cooperate with father to transport Katie in between Richmond and

Concord, North Carolina.   The trial court sustained father's

objection to the question posed by mother's counsel on the ground

that the question was leading.   Without attempting to rephrase

the question, mother's counsel moved on to another line of

inquiry.   Because mother failed to argue to the trial court that

her response to this question was relevant, we will not consider

this argument for the first time on appeal.
                                 E.
                   TRIAL JUDGE'S PRESENCE DURING

            FATHER'S PROFFER OF MR. MELBERG'S TESTIMONY

     We hold the Rule 5A:18 also bars us from considering

mother's argument that the trial court committed reversible error

by remaining in the courtroom while father's counsel proffered

the excluded testimony of Peder K. Melberg.   Our review of the

record indicates that mother did not object to the trial court's

presence at the time of the proffer.

                                 IV.

                 MOTION TO STRIKE FATHER'S EVIDENCE

     Mother contends that the trial court erred when it refused

to strike father's evidence at the conclusion of his

case-in-chief.   However, because mother waived her right to stand

on her motion to strike father's evidence at the conclusion of

his case-in-chief by presenting evidence on her behalf following

this motion, we will consider her challenge to the sufficiency of



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the evidence by examining the entire record.    See Carter v.

Commonwealth, 223 Va. 528, 531, 290 S.E.2d 865, 866-67 (1982);

Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266

(1948).

                                V.

                      CHANGE IN CHILD CUSTODY

     Mother contends that the trial court erred when it

transferred physical custody of Katie from her to father.

Because credible evidence supports the trial court's conclusions

as well as its factual findings and because the record does not

establish that its weighing of the statutory factors of Code

§ 20-124.3 was erroneous, we disagree.
     It is well established that a trial court should grant a

motion for a change in child custody only if the moving party

proves both (1) that a "change in circumstances" has occurred

since the most recent custody award and (2) that a change in

custody would be in the "best interests of the child."    See
Hughes v. Gentry, 18 Va. App. 318, 321, 443 S.E.2d 448, 450-51

(1994) (citing Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917,

921 (1983)).   It is now established by statute that the second of

these two "prongs" -- the best interests of the child -- must be

the trial court's "primary consideration."   Code § 20-124.1(B);

see also Keel, 225 Va. at 612, 303 S.E.2d at 921 (stating that

"the second prong . . . is clearly the most important part of the

two-part test").



                                 5
        On appeal, we consider the evidence in the light most

favorable to the party prevailing below.     See Wilson v. Wilson,

12 Va. App. 1251, 1254, 408 S.E.2d 576, 578 (1991).      "The

judgment of a trial court sitting in equity, when based on

evidence heard ore tenus, will not be disturbed on appeal unless

plainly wrong or without evidence to support it."       Peple v.

Peple, 5 Va. App. 414, 423, 364 S.E.2d 232, 237 (1988).

                                  A.
                        CHANGE IN CIRCUMSTANCES

        We disagree with mother's contention that the trial court

erred when it concluded that a "change in circumstances" had

occurred since the entry of the prior custody order on March 6,

1995.    The range of "changes" that satisfy the first prong of the

so-called "Keel test" is broad and may include either positive or

negative changes in the circumstances of either parent as well as

changes in the child stemming from his or her development.         See

Keel, 225 Va. at 611-12, 303 S.E.2d at 921.       "Whether a change of

circumstances exists is a factual finding that will not be

disturbed on appeal if the finding is supported by credible

evidence."     Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40,

41 (1986).

        We hold that the evidence was sufficient to support the

trial court's finding that a change of circumstances occurred

since the most recent custody award.    The record proved that both

parties had remarried since March 1995 and that Katie was about




                                   6
to begin schooling that would require her to remain in one

geographic location on days that school was in session.   In March

1996, mother moved with Katie to Concord, North Carolina, which

is over 250 miles away from Richmond.   Because of Katie's

impending entry into kindergarten and the distance between

Concord and Richmond, mother's move to North Carolina rendered

the existing arrangement of custody and visitation impracticable.

Moreover, Dr. Stolberg testified that, by reducing father's

daily involvement in Katie's life, this move would have an

adverse impact upon Katie's development.   Based on this evidence,

we cannot say that the trial court's finding of a change in

circumstances was erroneous.   See Hughes, 18 Va. App. at 322, 443

S.E.2d at 451.

                                B.

                      BEST INTERESTS OF CHILD

     We also disagree with mother that the evidence was

insufficient to support the trial court's finding that changing

Katie's physical custody was in Katie's best interests or that

the trial court misapplied the factors of Code § 20-124.3.

     When determining which custody arrangement is in the best

interests of a child, the trial court is required to consider the

evidence presented as it relates to the factors listed in Code

§ 20-124.3.   See Code § 20-124.3.   The trial court is not

required to quantify or elaborate what weight or consideration it

has given to each of the factors enumerated in Code § 20-124.3 or



                                 7
to weigh each factor equally.   See Sargent v. Sargent, 20 Va.

App. 694, 702, 460 S.E.2d 596, 599 (1995).   However, the trial

court's findings must have some foundation based on the evidence

in the record, and if the trial court's findings lack evidentiary

support, its determination of child custody is an abuse of

discretion.   Cf. Trivett v. Trivett, 7 Va. App. 148, 153-54, 371

S.E.2d 560, 563 (1988); Woolley v. Woolley, 3 Va. App. 337, 345,

349 S.E.2d 422, 426 (1986).
     We hold that the trial court's determination that

transferring Katie's physical custody from mother to father was

in Katie's best interests was neither unsupported by the evidence

nor an abuse of discretion.   The trial court stated that it

considered all of the statutory factors of Code § 20-124.3,

except for Katie's preference, which it excluded because of

Katie's young age.   The trial court also made numerous findings

regarding these factors, all of which are supported by the

evidence.

     The evidence presented by both parties regarding their care

of Katie supports the trial court's findings that both parties

are fit to properly care for Katie, have sought to maximize her

opportunities for social, educational, and religious development,

and have created loving and nurturing environments for her in

their respective homes.   This evidence also supports the trial

court's finding that Katie was "doing well with dad" during her

visitation with him prior to the hearing.    Mother's testimony



                                 8
that she has been Katie's primary caretaker since her birth and

father's testimony regarding his participation in Katie's care

during her early childhood supports the trial court's finding

that each parent contributed to Katie's early care and

development.   The trial court's finding that father's assault of

Raymond Davis, mother's father, on the day the parties separated

was an aberration is supported by Mr. Davis' testimony that

father was never physically abusive to him or mother either

before or after that incident.    The trial court's finding that

Katie's potential development will be maximized by her continued

exposure to her extended family in Virginia is supported by Dr.

Stolberg's testimony on this point.       As the trier of fact, the

trial court was entitled to determine the weight and credibility

of Dr. Stolberg's testimony.     See Ford, 200 Va. at 679, 107

S.E.2d at 401.   The evidence regarding Katie's activities and

friendships in Richmond, her choice of schools, and her health

care supports the trial court's finding that "collateral

resources . . . located in the local Richmond area" will also

benefit her development.

                                  VI.

                       ATTORNEY FEES AND COSTS

     Based on the circumstances of this appeal, we grant father's

request for an award of attorney fees and costs incurred in this

proceeding.    We remand this case to the trial court for an

assessment of a reasonable fee.        See O'Loughlin v. O'Loughlin, 23




                                   9
Va. App. 690, 479 S.E.2d 98 (1996).

     For the foregoing reasons, we affirm the trial court's order

and remand for a determination of father's attorney fees and

costs related to this appeal.

                                        Affirmed and remanded.




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