                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Baker, Elder and Fitzpatrick


JAMES RICHARD BOYLES

v.   Record No. 2050-95-1                        MEMORANDUM OPINION *
                                                     PER CURIAM
SELINA M. BOYLES                                   APRIL 30, 1996


                                         FROM THE CIRCUIT COURT OF
THE CITY OF VIRGINIA BEACH
                    A. Bonwill Shockley, Judge
            (James R. Boyles, pro se, on brief).

            No brief for appellee.



     James R. Boyles (father) appeals the decision of the circuit

court (a) granting the motion of Selina M. Boyles (mother) to

move from the Virginia Beach area to Charlottesville, and (b)

denying father's injunction to bar the move.      Father raises the

following issues on appeal:
          (1) whether the trial court abused its
               discretion by failing to determine
               if the proposed move was in the
               best interests of the children;

           (2)   whether the trial court abused its
                 discretion by failing to apply a
                 material change in circumstances
                 test;

           (3)   whether the trial court abused its
                 discretion by not allowing father
                 to present all of his evidence;

           (4)   whether the trial court abused its
                 discretion by denying father's
                 motion to rehear; and
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
           (5)   whether the trial court abused its
                 discretion by modifying the
                 parties' contract.


Upon reviewing the record and opening brief, we conclude that

this appeal is without merit.   Accordingly, we summarily affirm

the decision of the trial court.       Rule 5A:27.

     The decision of the trial court is presumed to be correct

and father bears the burden to prove by the record that the trial

court erred.
           The 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. It is appropriate that this be the rule
           governing our review of appeals because the
           trial judge was in a position to see and hear
           the witnesses, and to closely examine the
           evidence. As such, his findings are entitled
           to an appropriate degree of respect.


Simmons v. Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199

(1986).   Here, evidence of the proceedings before the trial court

is contained in the written statement of facts, composed of

father's proposed statement and mother's supplementary objections

and additions.   We review father's contentions based upon the
                                               1
record and the written statement of facts.
     Under the terms of the parties' Stipulation and Agreement,

incorporated into the November 9, 1994 court order, mother agreed

     1
        Father's opening brief contains allegations referring to
events which are not part of the record on appeal and thus cannot
be considered by this Court. Rule 5A:7.



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"so long as she has custody . . . [to] live within a reasonable

commuting distance of [father] so as not to cause undue hardship

upon [father], regarding the travel time or expenses necessary to

effect the aforementioned visitation."   In the hearing on

mother's motion to move to Charlottesville from the Virginia

Beach area, the trial court noted that mother's relocation was

barred under the terms of the Agreement.   The court then required

mother to present evidence supporting the move.   Mother testified

that she was moving to an area where she had siblings and family

support.    Mother presented evidence showing that father continued

to contact and harass her, despite previous court orders

requiring no contact.   Mother also presented evidence that

father's derogatory comments to the children about mother were

found to constitute mental child abuse by the Virginia Beach

Department of Social Services.   The trial court granted mother's

motion.

                     Best Interests of Children
     Father contends the trial court abused its discretion by

allowing mother's relocation with the children without

considering whether the move was in the best interests of the

children.   "It is well settled in Virginia that the best

interests of the children controls the issue of a change of

custody or the issue of a custodial parent moving the children to

another state."    Simmons, 1 Va. App. at 362, 339 S.E.2d at 200.

Although the move in this instance was intrastate, the concerns



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raised by father were identical to those raised in an interstate

context.

     The court's order contains no express recitation that the

move was in the best interests of the children.    However, the

record indicates that there was credible evidence from which the

trial court could conclude that mother's move did promote the

children's best interests.   Father's visitation rights had

previously been limited.   By order dated May 19, 1995, the trial

court restored father's visitation rights, subject to the

requirement that father's mother or sister supervise visitation

at all times.   Both parties were enjoined from "subjecting the

children to derogatory remarks concerning the parties or other

family members; . . . and from questioning the children regarding

the activities of either parent."     The record supports the

conclusion that father harassed mother and that his derisive

comments about her to the children rose to the level of child

abuse.    Mother's motion indicated that father's actions had made

it "impossible for her to remain in this geographic area and live

her life with any modicum of peace and privacy."    Cards and

letters introduced by mother at the hearing demonstrated father's

continued contacts with mother in contravention of previous court

orders.
     The court required mother to drive the children to Norfolk

every other weekend in order to facilitate father's regular

visitation.   Father was required to return the children to




                                  4
Charlottesville on Sunday nights.      This arrangement imposed

additional travel time and accompanying expense on both parties,

although the visitation schedule was left substantially

unchanged.    While father alleges that he will lose over one

hundred days of visitation annually, the record indicates his

visitation rights had been curtailed previously due to his

harassment of mother and his inclusion of the children in that

harassment.
          [Q]uestions of custody and removal from the
          noncustodial parent's state of residency
          involve a balancing of interests. More often
          than not there are advantages and detriments
          on both sides of the issue. A trial court's
          role is to weigh those concerns and
          conscientiously seek the solution that serves
          the best interests of the children.


Id. at 364, 339 S.E.2d at 201-02.      While this move does not take

the children from father's home state, the trial court was faced

with a similar balancing of concerns.     Credible evidence supports

the conclusion that mother's relocation would separate the

parents without harming father's relationship with the children

and that the result would promote the children's best interests.

Therefore, we do not find an abuse of discretion on the part of

the trial court.
                   Material Change in Circumstances

        Father alleges that the trial court failed to apply a

material change in circumstances test before allowing mother to

move.    "[W]henever the evidence suggests . . . that the

relocation of the custodial parent may not be in the child's best



                                   5
interests, the relocation of the custodial parent constitutes a

material change of circumstances."    Hughes v. Gentry, 18 Va. App.

318, 322, 443 S.E.2d 448, 451 (1994).   A material change in

circumstances may warrant a reexamination of current custody or

support arrangements.   Id.

     The evidence indicated that mother's relocation was in the

best interests of the children.   Because mother was the custodial

parent and because the court determined that the move was in the

children's best interests, we find no error in the failure of the

trial court to specifically articulate whether the relocation

constituted a material change of circumstances warranting a

reexamination of custody.
                    Presentation of Evidence

     Father contends that he was not allowed to present all his

evidence at the August 4, 1995 hearing.   The written statement of

facts does not support father's contention.    Moreover, the

admission of evidence is a matter committed to the discretion of

the trial court and the court's decision will not be reversed in

the absence of an abuse of its discretion.    Logan v. Fairfax

County Dep't of Human Dev., 13 Va. App. 123, 132, 409 S.E.2d 460,

465 (1991).

     Similarly, father contends the trial court abused its

discretion by refusing to hear evidence in support of his August

22, 1995 motion to rehear.    "The decision whether to grant or

deny a rehearing is within the trial court's sound judicial




                                  6
discretion."      Hughes, 18 Va. App. at 326, 443 S.E.2d at 453.   We

find no evidence of an abuse of discretion, and thus will defer

to the trial court's decision because it ruled "with the benefit

of the credibility determinations made during the prior ore tenus

hearing."   Id.



                        Modification of Contract

     Father's last argument is that the trial court's order

allowing mother to move violated Virginia law because it was

contrary to the terms of the parties' Stipulation and Agreement.

The agreement was incorporated into the court's order.       It

therefore was modifiable by order of the court.     Code § 20-109.1.

Moreover, the court retains authority over matters pertaining to

the custody and visitation of children.     Code § 20-108.   See

Kelley v. Kelley, 248 Va. 295, 298, 440 S.E.2d 55, 56 (1994).      As

such, the agreement did not bar the trial court from entering an

order approving mother's relocation.

     Accordingly, the decision of the circuit court is summarily

affirmed.
                                            Affirmed.




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