                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Annunziata and
          Bumgardner
Argued at Alexandria, Virginia


AMY JO CLARK ETTER
                                        MEMORANDUM OPINION * BY
v.       Record No. 0506-97-4   CHIEF JUDGE JOHANNA L. FITZPATRICK
                                              MAY 5, 1998
CRAIG ALAN ETTER


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                         Gerald B. Lee, Judge
             David H. Fletcher (Martin A. Gannon; Gannon,
             Cottrell & Ward, on briefs), for appellant.

             David D. Masterman (Cheryl K. Graham; Condo &
             Masterman, on brief), for appellee.



     On appeal from the trial court's decision awarding Craig

Alan Etter (father) sole custody of the parties' children, Amy Jo

Clark Etter (mother) contends the court erred in finding:    (1)

that a material change in circumstances had occurred subsequent

to the parties' stipulated custody agreement; and (2) that the

change in circumstances justified a modification awarding sole

custody of the children to father.     For the following reasons, we

affirm the judgment of the trial court.

                                  I.

     On May 16, 1995, mother and father entered a comprehensive

"Stipulation of Agreement" concerning the custody of their three

children.    This agreement was incorporated into a Final Decree of

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Divorce on June 15, 1995.    The agreement established joint legal

custody:
           "meaning on all matters of importance,
           including but not limited to the residence of
           the children, their education, medical
           treatments, and all other developmental
           issues, . . . [the parties] shall make joint
           decisions in the best interests of the
           children."


     On August 12, 1996, father filed for modification based on

numerous allegations that mother had violated the terms of the

agreement by failing to consult him on required issues, that the

parties could not communicate, and that mother had interfered

with his visitation.   He requested sole custody based on changed

circumstances.   Mother filed a similar petition on November 12,

1996, requesting sole custody based on changed circumstances,

including the parties' inability to co-parent.   On January 13,

1997, the trial court held a two day ore tenus hearing.

     "'[W]e view the evidence and all reasonable inferences in

the light most favorable to the prevailing party below.'"
Johnson v. Johnson, 26 Va. App. 135, 144, 493 S.E.2d 668, 672

(1997) (citation omitted).   Viewed in this light, the evidence

adduced at the hearing established that the parents'

communication had deteriorated significantly from the time the

Stipulation of Agreement was entered.   Rather than consulting

with each other, they communicated via fax, phone, letter, and

occasionally through the children.    Further, mother made

decisions concerning the children without consulting father.




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Most notably, she decided unilaterally to place Joseph, a child

who required special services, in a different school and

subsequently refused to discuss this issue with father, either

directly or through mediation.   Additionally, the parties were

unable to conduct visitation transitions smoothly.    When father

was scheduled to pick up the children for his summer visitation

in 1995, he obtained police intervention because mother refused

to give him the children or to talk with him over the phone or in

person.   The parties also engaged in argument over the duration

of father's time with the children on Father's Day.
     At the conclusion of the hearing, the trial court found that

"joint custody has been a failure," because the parties "have not

cooperated, not communicated."   The court further found that the

friction between the parents has "impacted the children."   While

the trial court acknowledged that father was not "blame free,"

the court noted mother's repeated refusals to participate in

mediation or talk with father and her insistence on communicating

by message, fax or mail.   The trial court reviewed each of the

statutory factors in Code § 20-124.3 and concluded:
          under factor number six, the propensity of
          each parent to actively support the
          children's relationship with the other parent
          and the ability to cooperate -- there is a
          key distinction between the two [parties]. I
          find that Ms. Clark is well intentioned [but]
          her judgment over the last eighteen months
          has severely impacted these children's
          relationship with the father in a way that is
          unacceptable. I find that . . . it is in the
          best interest of the children that the sole
          custody be awarded to the father.




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                                  II.

     Mother contends the trial court erroneously found a change

in circumstances justifying a modification of the stipulated

custody agreement.    We disagree.

     The standard to be applied to modification of child custody

is well settled:
          "A trial court, in determining whether a
          change of custody should be made, must apply
          a two-pronged test: (1) whether there has
          been a [material] change in circumstances
          since the most recent custody award; and (2)
          whether a change in custody would be in the
          best interests of the child."


Wilson v. Wilson, 18 Va. App. 193, 195, 442 S.E.2d 694, 696

(1994) (quoting Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d

40, 41 (1986)).    "'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.'"     Ohlen v. Shively,

16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993) (citation

omitted).   "[T]rial courts are vested with broad discretion in

making the decisions necessary to guard and to foster a child's

best interests."     Farley v. Farley, 9 Va. App. 326, 328, 387

S.E.2d 794, 795 (1990) (citing Eichelberger v. Eichelberger, 2

Va. App. 409, 412, 345 S.E.2d 10, 12 (1986)).    "Where a trial

court makes a determination which is adequately supported by the

record, the determination must be affirmed."     Farley, 9 Va. App.




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at 328, 387 S.E.2d at 796.

     In deciding what custody arrangement is in the child's best

interests, the court must consider the following factors in Code

§ 20-124.3:
          1. The age and physical and mental condition
          of the child, giving due consideration to the
          child's changing developmental needs;
          2. The age and physical and mental condition
          of each parent;
          3. The relationship existing between each
          parent and each child, giving due
          consideration to the positive involvement
          with the child's life, the ability to
          accurately assess and meet the emotional,
          intellectual and physical needs of the child;
          4. The needs of the child, giving due
          consideration to other important
          relationships of the child, including but not
          limited to siblings, peers and extended
          family members;
          5. The role which each parent has played and
          will play in the future, in the upbringing
          and care of the child;
          6. The propensity of each parent to actively
          support the child's contact and relationship
          with the other parent, the relative
          willingness and demonstrated ability of each
          parent to maintain a close and continuing
          relationship with the child, and the ability
          of each parent to cooperate in matters
          affecting the child;
          7. The reasonable preference of the child, if
          the court deems the child to be of reasonable
          intelligence, understanding, age and
          experience to express such a preference;
          8. Any history of family abuse as that term
          is defined in § 16.1-228; and
          9. Such other factors as the court deems
          necessary and proper to the determination.


(Emphasis added).

     In the instant case, the record provides ample credible

evidence that the custody circumstances had changed from the date



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of the stipulation.   The parties' inability to cooperate

sufficiently to co-parent clearly was not contemplated by the

agreement.   The lack of effective communication and the inability

to adequately consult and make joint decisions regarding the

children undermined the earlier joint custody agreement.    The

trial court's finding that the joint custody plan was "a failure"

was supported by credible evidence.

     Additionally, mother conceded in her trial court pleadings

that the parties' inability to communicate or maintain a civil

relationship constituted a change in circumstances justifying a

change in custody.    Therefore, we hold that the trial court did

not abuse its discretion in finding a change in circumstances

requiring modification of the custody agreement.
     Mother also argues that the trial court abused its

discretion because the award of sole custody to father was

unsupported by the evidence and contrary to the recommendation of

the expert custody evaluator.   We disagree.   The trial court need

not adopt the recommendation of the expert.    See Street v.

Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en

banc) ("the fact finder is not required to accept the testimony

of an expert witness merely because he or she has qualified as an

expert").    The record demonstrates that the trial court

considered the behavior of both parents as well as the expert's

recommendation.   Although not required to do so, the court

specified its reasons for rejecting the expert's recommendation




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in favor of a more definitive solution.   Furthermore, the record

establishes that mother's behavior regarding visitation and her

refusal to discuss schooling and other issues with father

supports the trial court's finding that she "does not exhibit [a]

spirit of cooperation."   The record before us adequately supports

the trial court's determination that the children's best interest

was served by an award of sole custody to father.

     Mother also contends the trial court erred in denying her

motion to reconsider in light of evidence of the oldest child's

desire to remain with mother and other proffered testimony.    "In

the absence of a material change in circumstance, reconsideration

. . . would be barred by res judicata."   Hiner v. Hadeed, 15 Va.

App. 575, 580, 425 S.E.2d 811, 814 (1993).   The trial court

addressed the question of the children's wishes and declined to

find that any of the children were of the age, intelligence, and

experience to express a cognizable preference.    As to the other

proffered testimony, the court found that mother had an

opportunity to present her case at the hearing.    We hold that the

proffered testimony failed to demonstrate a material change in

circumstances subsequent to the trial court's custody order and

that the trial court did not abuse its discretion in denying

mother's motion to reconsider.

     Father has requested an award of attorney's fees for this

appeal.   We find that wife had reasonable grounds for appeal.

Therefore, husband's request for fees is denied.    See Gayler v.




                                 7
Gayler, 20 Va. App. 83, 87, 455 S.E.2d 278, 280 (1995).    For the

foregoing reasons, the judgment of the trial court is affirmed.

                                                          Affirmed.




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