                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia


JAMES B. MONTGOMERY
                                            MEMORANDUM OPINION *
v.          Record No. 2555-96-2         BY JUDGE JOSEPH E. BAKER
                                              JULY 15, 1997
PATRICIA TALBOT


            FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                      William R. Shelton, Judge
            Ronald S. Evans (Jay O. Millman; Brenner,
            Dohnal, Evans & Yoffy, P.C., on brief), for
            appellant.

            No brief or argument for appellee.



     In this appeal from the Circuit Court of Chesterfield County

(trial court), the controlling issue presented is whether the

trial court erred in holding that it was in the best interests of

the children of James B. Montgomery (father) and Patricia Talbot

(mother), formerly husband and wife, that custody of the parties'

minor children "shall be shared jointly by the parties consistent

with the previous arrangements of the parties as to physical

custody."

     The father and mother were divorced by decree entered in the

trial court on August 28, 1989.      At that time the children were
                       1
ages five and three.       The divorce decree approved an agreement

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      The children are James B. Montgomery, III, born on May 12,
1984, and Mae Ann Collins Montgomery, born March 28, 1986.
(PSA) made on September 19, 1988 wherein the parties agreed to

"split custody" of the children as follows:
            Unless modified by mutual agreement after
          consultation with the children, physical
          custody shall be vested in each of the
          parties on alternating weekends beginning
          8:00 a.m. on Saturday and ending 8:00 a.m. on
          Monday. Holidays shall also be alternated
          but, to the extent mutually agreed to, shall
          be included as part of the general weekend
          visitation. At Christmas both children shall
          spend Christmas Eve with one parent and
          Christmas Day with the other, with other
          Christmas holiday arrangements to be by
          mutual agreement.
            Physical custody during normal weekdays
          shall be as follows:
               a. 8:00 a.m. Monday through 8:00 a.m.
          Tuesday, and 8:00 a.m. Wednesday through 8:00
          Thursday with [father];
               b. 8:00 a.m. Tuesday through 8:00 a.m.
          Wednesday, and 8:00 a.m. Thursday through
          8:00 a.m. Friday with [mother]; and
               c. 8:00 a.m. Friday through 8:00 a.m.
          Saturday [father] and [mother] each have one
          child on an alternating basis.


     On November 20, 1989 the parties executed an addendum to the

September 19, 1988 PSA which, in relevant part, provided that in

lieu of the custody provisions in the former agreement, physical

custody should be as follows:
            1. Custody: With respect to page 4,
          paragraph 8 of the [PSA], and in lieu of the
          language contained therein, the following
          physical custody schedule shall apply:
               a) Monday and Tuesday with [mother];
          7:30 a.m. pickup on Tuesday by [mother] when
          applicable
               b) Wednesday and Thursday with [father]
               c) Friday, Saturday and Sunday
          alternated between [mother] and [father].
            The following holiday schedule shall
          replace the previously stated holiday
          schedule in the [PSA]:
            a) Thanksgiving vacation period: from



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            Thanksgiving Day through subsequent Sunday,
            with one parent and alternating thereafter.
            Effective 1989, this vacation period with
            [father]
              b) Christmas vacation period: Christmas
            Eve with one parent; Christmas Day from 12:00
            noon through return to school with other
            parent and alternating thereafter. Effective
            1989, this vacation period with [father]
              c) Easter/Spring vacation period: this
            vacation period shall correspond with the
            public school spring break. Effective 1990,
            this vacation period with [mother], and
            alternating thereafter.
              d) Memorial Day: effective 1990, with
            [father] and alternating thereafter
              e) July 4: effective 1990, with [mother]
            and alternating thereafter
              f) Labor Day: effective 1990, with
            [father] and alternating thereafter.


The record is unclear; however, it appears that the addendum was

submitted to the juvenile and domestic relations district court

(district court) and approved.

       On August 8, 1995, 2 both father and mother, among other

things, requested the district court to eliminate the split

custody requirement and direct where the children would be

required to attend school.    On October 18, 1995, the district

court held:
              1. Custody of the said children shall be
            shared jointly by the parties consistent with
            the previous arrangements of the parties as
            to physical custody.
              2. James B. Montgomery, III, shall
            continue to attend Dinwiddie Public Schools.
              3. Mae Ann Montgomery shall attend
            Dinwiddie Public Schools unless father elects
            to enroll her at St. Joseph's School at his
            own voluntary expense. It is expressly
       2
        At that time, the children were eleven and nine years of
age.




                                 - 3 -
             ORDERED that such expense is to be a
             voluntary one by father alone and one which
             shall not be deducted from any child support
             obligations of father. Said election is to
             be made on or before August 18, 1995.
               And all other motions of the parties are
             dismissed, there having been no evidence
             presented for the Court's consideration
             thereof.


     Mother appealed the district court findings to the trial

court.   When the matter came before the trial court, the

children's ages were twelve and ten.     Mother resided in Dinwiddie

County, and father resided in Chesterfield County.    In a letter

dated August 22, 1996, the trial court ruled as follows:    "The

Court will adopt the ruling of the [district court], as its

ruling."   Father appealed the trial court's ruling to this Court.
     In an appeal from a decision of the juvenile and domestic

relations district court to the circuit court, the matter must be

heard de novo.     See Peple v. Peple, 5 Va. App. 414, 425, 364

S.E.2d 232, 239 (1988) (Baker, J., concurring).    It is clear from

the trial court record that both parents complied with all

previous decrees concerning custody; that father and mother, from

their custodial experience, concluded that it would be in the

best interests of the children to eliminate the split custody

arrangement; and that the evidence supported the parents' desire

to discontinue the split custody requirement and to have the

trial court determine what change would be in the children's best

interests.    The record discloses that the children suffered under

the arrangement that required their mid-week transfer from one



                                 - 4 -
parent's home to the other.   There is no evidence to the

contrary.

     Because the record fails to show evidence sufficient to

support the trial court's decision, we reverse and remand this

case to the trial court with direction that it hear such further

evidence relating to the best interests of the children and

render a decision in accord therewith.

                                            Reversed and remanded.




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