                                           COURT OF APPEALS OF VIRGINIA


            Present: Judges Alston, McCullough and Huff
PUBLISHED


            Argued at Alexandria, Virginia


            JOSEPH A. WIENCKO, JR.
                                                                                   OPINION BY
            v.      Record No. 2078-12-4                                  JUDGE STEPHEN R. McCULLOUGH
                                                                                   JULY 23, 2013
            AKEMI TAKAYAMA


                                FROM THE CIRCUIT COURT OF FREDERICK COUNTY
                                            John E. Wetsel, Jr., Judge

                            Marilyn Ann Solomon (Thomas W. Ashton; Gerardo M. Delgado;
                            Law Firm of Marilyn Solomon and Associates, on brief), for
                            appellant.

                            Peter W. Buchbauer (Buchbauer and McGuire, P.C., on brief), for
                            appellee.


                    Joseph A. Wiencko, Jr., father, assigns four errors in connection with his divorce and

            custody proceedings. He argues (1) the trial court violated his rights under the Equal Protection

            Clause of the United States Constitution when it awarded custody to mother “based primarily upon

            Father’s decision to stay home and raise the children rather than focus on employment,” (2) the

            court abused its discretion “in awarding Father the vast majority of the marital debt, while awarding

            Mother nearly all of the marital assets,” (3) the court abused its discretion “in relying upon the

            report of the Guardian ad Litem, and in eventually accepting wholesale her recommendations as to

            custody and visitation, when the Guardian ad Litem failed to do a thorough investigation and

            submitted said report and recommendation without even meeting with the children which were the

            subject of the custody and visitation dispute,” and (4) the court abused its discretion “in failing to

            prohibit the Mother from all international travel with the children, instead of limiting its prohibition

            to just Japan, because she can get the children to Japan by going through another country.”
                                          BACKGROUND

       Father and mother were married on August 21, 1999. They separated in June of 2011.

Mother and father have four boys: the eldest was born in 2000, followed by twins born in 2002, and

finally the youngest, who was born in 2004.

                                    I. CUSTODY OF THE CHILDREN

       The evidence established that both father and mother were loving parents who were very

devoted to their children. The court indicated in its finding of facts and conclusions of law that

“[b]oth parents are very concerned about the welfare of their children, and both appear to be

sincerely motivated to do what they each perceive is in the children’s best interests.” At the time of

the relevant custody hearings, the children were doing very well in school and were actively

engaged in activities such as the Boy Scouts.

       The court heard testimony from mother and father and from several of their friends. Since

2004, father has assumed a greater role in caring for the children, a role that only grew more

significant with the loss of his employment in 2009.

       Dr. Bernard J. Lewis prepared a detailed parental capacity evaluation for each parent. He

wrote that mother “presented as a very bright, emotionally sensitive, and psychologically healthy

individual.” In contrast, Dr. Lewis concluded father’s answers suggested he possesses “certain

narcissistic quality.” Dr. Lewis further stated in his report that “[t]here is clear and substantial

evidence from the interviews with the boys that [father] has provided them with considerable

inappropriate information which undermines [mother’s] parental authority with the boys and

their respect for her as a parent.” Finally, Dr. Lewis’s report stated that father’s “rigid, inflexible

style likely results in a ‘one size fits all’ approach to parenting. This was apparent from his

descriptions of his children and his focus on their intellectual and academic abilities with little

regard to their social or behavioral development.” At trial, Dr. Lewis testified that, during the

                                                 -2-
evaluations, father came across “as very rigid, inflexible, insensitive, and self-centered.” In his

view, father was “just focused on [the children’s] academics . . . and relatively blind to any other

issues or problems with them.” Dr. Lewis formed a “strong opinion that [mother] is the better

parent” with regard to assessing and meeting the emotional, intellectual, and physical needs of

the children.

       The guardian ad litem recommended that sole legal and physical custody be awarded to

mother. The guardian ad litem

                acknowledge[d] Father’s devotion to his children and his role these
                past few years as a “stay at home dad.” However, the guardian ad
                litem strongly believes that this role was not assumed just because
                of Mother’s career, but because of Father’s inability to obtain
                employment and/or his unwillingness to compromise on some
                “must haves” for his desired employment situation.

       Mother, a professional violinist, worked throughout the marriage, teaching music and

occasionally traveling out of town to perform. Father holds a master’s degree in mechanical

engineering. Initially, he worked from home as a consultant to the telecommunications industry.

For a time, he earned a very comfortable living. For example, in 2004, father earned $197,600.

Gradually, the contracts began to diminish. In 2008, he earned $93,689. In 2009, father’s lone

remaining client did not renew his consulting contract, and father has been unemployed since that

time. He did not seek further employment. Instead, father devoted himself to taking care of the

children and the household, becoming, in his own words, “Mr. Mom.” The loss of father’s

substantial income after 2009 required him to make significant withdrawals from his retirement

accounts to maintain the household.

       The trial court issued a detailed written opinion analyzing the statutory custody factors

found in Code § 20-124.3. The court noted that mother “is psychologically best suited to be the

primary custodian of the children, and she has the present ability to provide an independent

household for the family, whereas the father does not.” In discussing “[t]he role which each parent
                                                -3-
has played and will play in the future, in the upbringing and care of the child,” the court specifically

acknowledged father’s extensive role in raising the children, including preparing meals, taking care

of laundry, and running errands, as well as his loving relationship with the children. The court

observed, however, that father “unilaterally decided to become a stay at home Father” after he lost

his consulting contract. In addressing the circumstances that led to the dissolution of the marriage,

the court wrote that

                the catalyst for the final breakup of the marital relationship was the
                Husband’s loss of employment. In his late 40’s and confronted by
                the loss of his lucrative employment, the Husband understandably
                became depressed. Rather than shouldering the burden of seeking
                new employment, he elected to withdraw into the home and devote
                himself to his children. This was basically a retreat from reality.

        Later, in the context of discussing the role each parent has played in the upbringing and care

of the children, the court made the following observations:

                As previously noted, after losing his employment in 2009, the
                Father withdrew from the adult world of employment. His
                obsession with his children’s intellectual and personal
                development is a product of his withdrawal from the world of
                adults. Parenting requires balancing, and the Father has lost his
                sense of parental perspective with respect to his role as a Father.
                While he has commendably engaged his children in a wide range
                of activities designed to develop their intellectual, social, and
                spiritual life, he has totally abrogated his responsibility to
                physically provide for his family. He has returned to his childhood
                and become actively engaged in children’s activities like scouting
                and recreation. He took them to a variety of amusement parks.
                These are salutary and commendable activities provided that you
                have the money to fund them.

                       If granted custody, the Father plans to return to his
                childhood home in Herndon to live with his mother, thereby
                completing his retreat from the adult world.

Mother, on the other hand, “would remain in the Winchester area to maintain consistency and

routine in the children’s lives.” The court also found that she “is willing to make adjustments to

her work schedule to be more available for her children.”

                                                  -4-
        The court ordered joint legal and physical custody with primary physical custody going

to mother. The court further established a detailed visitation schedule for father that included the

first, third, and fifth weekends of every month, as well as weekday evening visitation on

Tuesdays and Thursdays and summer visitation for up to six weeks.

        Father objected to the custody award. He filed a motion to reconsider in which he argued

that “the Court violated his 14th Amendment right to Equal Protection under the Constitution

when it granted custody of the children to the mother on the basis that he left his job to be a stay-

at-home dad and raise the children.” The court denied the motion to reconsider.

                                     II. EQUITABLE DISTRIBUTION

        The principal marital assets consisted of a home with an outstanding note of approximately

$400,000 and little to no equity, a violin bow, several automobiles and household furnishings, and

retirement accounts from mother’s employers with a marital share worth approximately $68,000.

Father had largely depleted the marital share of his retirement accounts and little was left in those

accounts. Father still had over $270,000 in retirement accounts that were his separate property.

Credit cards in father’s name had an outstanding balance of approximately $37,000.

        The court wrote a memorandum opinion in which it thoroughly reviewed the evidence and

addressed each of the Code § 20-107.3 factors. Among other things, the court acknowledged

father’s significant financial contributions to the marriage, including father’s contribution of

$40,000 of his separate property to satisfy a judgment against mother and his contribution of

$200,000 of father’s separate property toward the purchase of the home. The court also made note

of the fact that, at a time when mother was embroiled in litigation, he purchased mother’s violin

bow at a cost of $16,000 and later gave it to her so as to insulate that asset from bankruptcy.

        The court awarded the marital home to father and the bow to mother. With regard to credit

card debt, the trial court held that “[t]he parties will pay the credit cards in their individual names

                                                   -5-
without contribution from the other spouse.” As to marital retirement accounts, the court provided

as follows in a section of its opinion titled “Pension and Retirement Plans”:

                        Each party shall retain their respective pension and retirement
                plans free of the interest of the other party. There does not appear to
                be any marital portion remaining in the SEP IRA; however, to the
                extent that there is, that shall go to the Husband.

                        The Husband has substantial separate property, his retirement
                accounts greatly exceed those of the Wife, and he is receiving the
                marital residence, whatever it may be worth.

                         III. THE INVESTIGATION OF THE GUARDIAN AD LITEM

        Father and mother requested the appointment of a guardian ad litem. The court appointed

Karen M. Holman, who had served as the guardian ad litem for the oldest child in the context of

father’s ultimately unsuccessful effort to obtain a protective order on behalf of all four children

against mother.1 Holman had interviewed the children during the course of her investigation

concerning application for the protective order. She did not, however, interview the children anew

for purposes of the child custody litigation. Father objected to the court relying on the report of the

guardian ad litem, arguing that she was biased and had not conducted a thorough investigation.

        Dr. Lewis interviewed the children and discussed his findings with Holman. Holman found

that the information Lewis gleaned from his interviews with the children was essentially the same as

what Holman had learned from her previous interviews with the children. In addition to Dr. Lewis,

Holman spoke with father and mother, the maternal grandparents, the paternal grandmother, and

counsel for both parties. Holman also spoke with a former neighbor of father and mother, and she

reviewed discovery responses and documents, videos, and other materials provided to her by the



        1
         Father has contended that mother abused the oldest of the children. The record
establishes that when one of the children obstreperously refused to go to his room, mother
dragged him to his room by his feet. The child suffered a bruise when his head struck a door.
Child Protective Services investigated the matter but did not file any charges or take further
action. Mother acknowledged the inappropriateness of her actions.
                                               -6-
parties. Holman later issued a second report containing a final recommendation for the court. Her

invoice reflects that she spent nearly 42 hours on the case.

                                      IV. TRAVEL RESTRICTIONS

        Mother originally is from Japan. She arrived in the United States in 1991 to study music.

She obtained an undergraduate degree from the University of Wyoming, followed by a master’s

degree from the Cleveland Institute of Music. Mother and father have visited Japan on an annual

basis to allow the children to see their maternal grandparents. Mother’s current employment is in

the United States. Since coming to the United States, she has not returned full time to Japan and has

no plans to do so. She testified that she recognizes that the children love their father and “value

what [he] has to offer.” She said she does not want to stop the relationship the children have with

their father. The children were raised entirely in the United States. Mother denied that she has any

intention to take the children to Japan permanently. In March of 2008, she became a citizen of the

United States while, according to father, retaining her Japanese citizenship.

        Throughout the litigation, father has been gravely concerned about the possibility that

mother might permanently return to Japan with the children. His fear is grounded in the fact that

Japan has not signed multilateral treaties such as the 1980 Hague Convention on the Civil Aspects

of Child Abduction. According to father, he would effectively have no recourse were mother to

permanently return to Japan and take the children with her. For her part, mother asked the court to

allow her to travel to Japan, where her parents and other family reside. The final divorce decree

provides that “Mother may not take the children to Japan without the Father’s written consent or

a court order approving the trip.”




                                                 -7-
                                             ANALYSIS

            I. THE TRIAL COURT DID NOT VIOLATE FATHER’S EQUAL PROTECTION RIGHTS.

        Father does not challenge the facial constitutionality of Virginia’s child custody statutes.

Instead, he raises an “as applied” challenge, contending that awarding custody to mother rather than

to him violated his rights under the Equal Protection Clause. He argues that the trial court based its

custody decision “on the biased, archaic and stereotypical view that men are supposed to provide for

the family financially and have no place in the household with children.” Appellant’s Br. at 27.

        The Fourteenth Amendment of the Constitution provides in relevant part that “no state

shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § 1. “Absent clear evidence to the contrary in

the record, the judgment of a trial court comes to us on appeal with a presumption that the law

was correctly applied to the facts.” Yarborough v. Commonwealth, 217 Va. 971, 978, 234

S.E.2d 286, 291 (1977). To succeed on an “as applied” challenge, where a litigant does not

challenge the validity of a legislative classification, but, rather, claims that a court has violated

the Equal Protection Clause in a particular divorce case by discriminating on the basis of sex, the

litigant must make an unambiguous showing that the trial court’s decision was grounded in

invidious discrimination on the basis of sex. McCreery v. McCreery, 218 Va. 352, 237 S.E.2d

167 (1977). See also Mandell v. Haddon, 202 Va. 979, 992, 121 S.E.2d 516, 526 (1961) (noting

the purpose of the Equal Protection Clause is to protect against invidious discrimination).

        A number of cases from Virginia and other states have examined arguments similar to

those made by father. Most relevant is the McCreery decision from the Supreme Court. In that

case, the Court rejected the mother’s claim that she had been “treat[ed] differently from the

father on the basis of her employment.” 218 Va. at 356, 237 S.E.2d at 169. After examining the

record, the Supreme Court concluded that

                                                  -8-
               [t]he chancellor did not divide working parents into separate
               classes according to sex. Nor did he base his decision upon a
               finding that mothers are not proper custodians unless they are
               full-time housewives. Rather, comparing the quality of custodial
               care offered by two working parents, he decided that the effect of
               Mrs. McCreery’s employment on her “habits and behavior”, i.e.,
               her preoccupation with “the glamour of her work” and “her
               relationship with her supervisor”, was such that “the interests of
               the two children in this case would be best served” by awarding the
               children the custodial care of a working father who “is willing to
               place the welfare of these children above all else, to a much greater
               extent than the mother”.

Id. at 357, 237 S.E.2d at 170. The Court held that the custody determination was not the product

of “invidious discrimination.” Id. See also Lawrence v. Lawrence, 628 P.2d 542, 543 (Wyo.

1981) (rejecting father’s claim that the custody determination was made on the “improper and

illegal assumption that custody” should be awarded to the mother because this argument

“completely disregards the other findings of fact made by the court which reflect consideration

given by it to all aspects of the relationship in an effort to make the award which would be in the

best interests of the child”); Burroughs v. Burroughs, 239 S.E.2d 357, 358 (Ga. 1977) (“The

record shows that the trial judge awarded custody to the husband because this would be in the

children’s best interests, not because the wife was career-minded.”).

       We have little difficulty in concluding that the trial court did not violate the Equal

Protection Clause in granting custody of the children to mother rather than to father. The record

demonstrates that the trial court carefully analyzed all the statutory factors in Code § 20-124.3

and reached a decision based on the entirety of the evidence. The statements father singles out

do not reflect the breadth of the trial court’s opinion. The trial court had before it the report of

Dr. Lewis, the recommendation of the guardian ad litem, and other evidence, all of it pointing

clearly in the direction of giving primary or sole custody to mother. Certainly, the trial court

made plain that it viewed negatively father’s decision to abandon a once thriving career in favor

of devoting himself exclusively to the children. This was not, however, a situation involving a
                                                 -9-
father who by mutual consent sacrificed a career in favor of assuming a caretaker role. Rather,

in the context of all the evidence, the court noted the negative impact of father’s assumption of a

provider role followed by a unilateral decision on his part to abandon that provider role to stay at

home with the children.

       Father urges us to compare the outcome in this case with an unreported decision by the

same trial judge in which the court commended the mother for sacrificing her career for the sake

of her family. We decline father’s invitation to engage in this exercise. Divorce cases involve

such widely varying factual situations, and the statutory standard governing the adjudication of

these cases is so broad and flexible, that, unlike, for example, the employment context, making

such case-to-case comparisons would serve no useful purpose in determining the validity of an

equal protection claim.

       The record reflects that the trial court carefully weighed the evidence and based its

decision on the individual facts of the case and the factors listed in the statute. Father has fallen

far short of making an unambiguous showing that the trial court made its custody determination

based on invidious discrimination.

II. THE TRIAL COURT ERRED IN CONSIDERING FATHER’S SEPARATE PROPERTY RETIREMENT ACCOUNTS
              IN AWARDING MOTHER THE TOTALITY OF THE MARITAL RETIREMENT ACCOUNTS.

       Father does not challenge the trial court’s classification of property. He does, however, raise

a number of arguments in connection with the court’s equitable distribution of marital property. On

appeal, a trial court’s equitable distribution award will not be overturned unless the Court finds “an

abuse of discretion, misapplication or wrongful application of the equitable distribution statute, or

lack of evidence to support the award.” McIlwain v. McIlwain, 52 Va. App. 644, 661, 666 S.E.2d

538, 547 (2008).

       Retirement accounts in mother’s name constituted one of the principal marital assets. The

marital share of these accounts was worth approximately $68,000. In a section of the trial court’s
                                                 - 10 -
findings of fact and conclusions of law captioned “Pension and Retirement Plans,” the court held as

follows:

                        Each party shall retain their respective pension and retirement
                plans free of the interest of the other party. There does not appear to
                be any marital portion remaining in the SEP IRA; however, to the
                extent that there is, that shall go to the Husband.

                        The Husband has substantial separate property, his
                retirement accounts greatly exceed those of the Wife, and he is
                receiving the marital residence, whatever it may be worth.

(Emphasis added). Plainly, the existence of father’s separate property retirement accounts

influenced the court’s decision to award the marital property retirement accounts entirely to mother.

Father argues that it was error for the trial court to award mother the retirement accounts, which

constituted marital property, based, at least in part, on the fact that father had retirement accounts

that were his separate property. We agree with father.

        We first turn to the text of the statute. At the outset, Code § 20-107.3(A) directs the court to

classify property and to segregate marital property from separate property. Code § 20-107.3(E) then

provides a list of factors that govern the equitable distribution of marital property and the

apportionment of marital debt. Significantly, the General Assembly did not list the value of

separate property as an equitable distribution factor. In contrast, the General Assembly has directed

trial courts to consider the availability of all financial resources, including separate property, in

fashioning a spousal support award or when varying from the presumptive child support

guidelines. See Code §§ 20-107.1(E)(1) (in determining spousal support, trial court to consider,

among other things, parties’ “financial resources . . . of whatever nature”), 20-108.1(B)(10) (in

determining whether to vary child support from the presumptive guidelines, trial courts should

consider the “financial resources . . . of each parent”). Had the General Assembly intended to

include all property, rather than just marital property, in the equitable distribution calculus, it

would have done so in Code § 20-107.3(E).
                                                 - 11 -
       Taking separate property into account would not only import into Code § 20-107.3 a

factor the General Assembly chose not to include, it also would be inconsistent with the purpose

of the equitable distribution statute. The General Assembly was well aware of the problems

associated with the regime that existed before equitable distribution, where spouses received

property based chiefly on title and the needs of the divorced spouse were provided for through

spousal support awards. Report of the Joint Subcommittee Studying Section 20-107 of the Code of

Virginia To the Governor and The General Assembly of Virginia, House Doc. No. 21, 1982

Session, at 4. In enacting the equitable distribution statute, the General Assembly sought to

               recognize marriage as a partnership to which each party contributes,
               albeit not always equally, to the well-being of the family unit. These
               contributions, both monetary and nonmonetary, have value and
               should be weighed, along with other factors, in allocating marital
               assets or their dollar equivalent between the parties when they are
               divorced or their marriage is dissolved.

Report of the Joint Subcommittee Studying Section 20-107 of the Code of Virginia To the Governor

and The General Assembly of Virginia, House Doc. No. 21, 1982 Session, at 7. See also Sawyer v.

Sawyer, 1 Va. App. 75, 78, 335 S.E.2d 277, 279 (1985) (“The legislature enacted Code § 20-107.3

to give the courts power to compensate a spouse for his or her contribution to the acquisition of

property obtained during the marriage without regard to title when the marriage is dissolved.”

(emphasis added)).

       The purpose of equitable distribution differs from the purpose animating an award of

spousal and child support. This Court has recognized that

               support and equitable distribution awards are based on entirely
               different considerations and serve entirely different purposes.
               Court ordered support is intended to place the burden on a spouse
               or parent to maintain his or her family rather than placing that
               burden on the state. Furthermore, the amount of support is based
               on current needs of the spouse and/or children and the ability of the
               other spouse/parent to pay from current assets. The “equitable
               distribution” statute, however, is intended to recognize a marriage
               as a partnership and to provide a means to divide equitably the
                                                - 12 -
                 wealth accumulated during and by that partnership based on the
                 monetary and non-monetary contributions of each spouse.

Williams v. Williams, 4 Va. App. 19, 24, 354 S.E.2d 64, 66 (1987).

        We hold that the value of separate property is irrelevant to the equitable distribution

analysis.2 Whether a divorcing spouse commands vast resources of separate property, or,

conversely, possesses little or no separate property, is a circumstance external to the marriage and to

the accumulation of wealth during the marriage. The trial court’s decision to award mother the

marital property retirement accounts based in part on the existence of father’s separate property

retirement accounts constitutes a misapplication of the equitable distribution statute. Consequently,

we reverse and remand the equitable distribution award for further proceedings not inconsistent with

this opinion.3

       III. THE TRIAL COURT PROPERLY CONSIDERED THE REPORT OF THE GUARDIAN AD LITEM.

        Father next argues that the trial court committed an abuse of discretion in relying on the

report of the guardian ad litem. He contends that the guardian ad litem failed to conduct a thorough

investigation and, in particular, failed to meet with the children who were the object of the custody

and visitation dispute. We agree with mother that this issue should be reviewed under an abuse of




        2
         Of course, past contributions of separate property made for the benefit of the household
during the marriage must be considered in making the equitable distribution. Code
§ 20-107.3(E)(2).
        3
         Father also argues that the trial court, in contravention of our holding in Reid v. Reid, 7
Va. App. 553, 565, 375 S.E.2d 533, 540 (1989), improperly considered his earning capacity in
making the equitable distribution award. The record does not support this contention. The court
referenced father’s unilateral decision to stay at home and abandon the workforce as one of the
circumstances that led to the dissolution of the marriage. In contrast to Reid, the trial court here
did not base its equitable distribution award on father’s earning capacity. Father also argues that
the court abused its discretion in awarding most of the marital assets to mother while awarding
most of the debt to father. He stresses the value of his own contributions, monetary and
non-monetary, to the marriage. In light of our remand, we do not address this argument.

                                                 - 13 -
discretion standard. This standard affords the trial court appropriate flexibility in determining to

what extent it should rely on the recommendation of the guardian ad litem.

        The guardian ad litem serves a vital role in our judicial system. The task of the guardian ad

litem is to rise above the fray of the contending parties to ensure that the interests of persons under a

legal disability are “represented and protected.” Code § 8.01-9(A). See also Rule 8:6 (the role of

the guardian ad litem for a child is to “vigorously represent the child, fully protecting the child’s

interest and welfare”). Although the Supreme Court has held that a trial court should consider the

recommendation of the guardian ad litem, see Bottoms v. Bottoms, 249 Va. 410, 420, 457 S.E.2d

102, 108 (1995), that holding presupposes that the report prepared by the guardian ad litem rests on

an adequate investigative foundation.

        It is true, as father notes, that the guardian ad litem did not interview the children in

connection with the divorce case. Standard A of The Standards to Govern the Performance of

Guardians ad litem for Children specifies that “in fulfilling the duties of a Guardian ad Litem . . ., an

attorney shall [m]eet face-to-face and interview the child.”4 Significantly, however, Holman

previously served as the guardian ad litem for the oldest child in connection with a protective order

sought by father approximately seven months prior to her appointment as guardian ad litem for all

four children in the divorce proceeding. It is undisputed that Holman previously had interviewed

the children. Father correctly observes that the purpose of a protective order differs from the

purpose of a divorce case. Still, the facts gleaned in the earlier litigation were relevant in the

divorce proceeding and would have gone a long way towards educating the guardian ad litem about

the dynamics of this family.




        4
         The standards are available at:
http://www.courts.state.va.us/courtadmin/aoc/cip/programs/gal/children/gal_performance_standa
rds_children.pdf
                                             - 14 -
        Moreover, Dr. Lewis, who was hired in the context of the divorce case to prepare a parental

assessment, interviewed the children. Holman and Dr. Lewis compared notes. In addition, Holman

spoke with father and mother, the maternal grandparents, the paternal grandmother, and the

attorneys for father and mother. Holman interviewed a former neighbor of father and mother, and

she reviewed discovery responses and documents, videos, and other materials provided to her by the

parties. Based on these facts, the trial court did not abuse its discretion in considering the report and

recommendation of the guardian ad litem and in attributing to it whatever weight the court deemed

appropriate.5

        In so concluding, we do not downplay the importance of the standards that govern guardians

ad litem. Nevertheless, it would be foolish to reflexively reverse every time a guardian ad litem

does not follow these standards to the letter or because an investigation could have been more

thorough. First, guardians ad litem must adapt the depth of their investigation to the unique facts of

each case. Second, the fact that the cost of the guardian ad litem’s investigation must be borne by

the parties in a divorce – parties who often are under financial strain – counsels against compelling a

guardian ad litem to exhaust every conceivable avenue of investigation. Finally, the abuse of

discretion standard, which governs our decision here, means that

                a reviewing court [must] show enough deference to a primary
                decisionmaker’s judgment that the court does not reverse merely
                because it would have come to a different result in the first instance.
                Accordingly, when a decision is discretionary, the court has a range
                of choice, and its decision will not be disturbed as long as it stays
                within that range and is not influenced by any mistake of law.

Lawlor v. Commonwealth, 285 Va. 187, 212-13, 738 S.E.2d 847, 861 (2013) (citation and internal

punctuation omitted).


        5
         Father also complains about the failure of the guardian ad litem to “ascertain the
veracity of allegations that [mother] savagely beat one of the children.” Appellant’s Br. at 41.
Due to Holman’s service as guardian ad litem for the oldest child in connection with father’s
unsuccessful attempt to obtain a protective order, she was well aware of the facts of that incident.
                                               - 15 -
        Finally, the record does not support father’s assertion that the trial court accepted

“wholesale” the recommendations of the guardian ad litem. The guardian ad litem recommended

that mother have sole legal and physical custody of the children, whereas the court provided for

joint legal and physical custody, with primary physical custody to mother. In addition, the court

provided a more generous visitation schedule for father than what the guardian ad litem had

recommended.

                 IV. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WITH REGARD
                        TO THE TRAVEL RESTRICTIONS IMPOSED ON MOTHER.

        The trial court forbade mother from traveling to Japan with the children. The court did not

forbid mother to travel to other countries with the children. Father argues that the trial court

“abused its discretion when it failed to prohibit the Mother from all international travel with the

children.” Appellant’s Br. at 46. He fears that mother could travel with the children to another

country, and from there take the children to Japan. Father highlights the fact that Japan is not a

signatory of the Hague Convention on the Civil Aspects of International Child Abduction.

Therefore, he is concerned that he would be without any remedy should mother take the children

there permanently.

        Code § 20-107.2 provides that “[u]pon entry of a decree providing . . . for a divorce . . .

the court may make such further decree as it shall deem expedient concerning the custody or

visitation and support of the minor children of the parties as provided in Chapter 6.1 . . . .” Such

further decree may include travel restrictions placed upon the parent who seeks custody or

visitation. We afford the trial court broad discretion in these matters. Brown v. Brown, 30

Va. App. 532, 538, 518 S.E.2d 336, 338 (1999). “[A]s long as evidence in the record supports

the trial court’s ruling and the trial court has not abused its discretion, its ruling must be affirmed

on appeal.” Id. The paramount consideration for the court remains the best interest of the

children. Code § 20-124.2.
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        We find no abuse of discretion on these facts. First, the record does not support father’s

apprehension that mother might whisk the children away to Japan and permanently settle there.

The evidence establishes that mother has every intention to remain in the United States for the

long term. Mother has resided in the United States since 1991. Her career has been and remains

in the United States. She has become a United States citizen. Mother testified that she has no

plans to permanently move to Japan, and she recognizes the importance of the role father plays

in the children’s lives. Her trial testimony was corroborated by Dr. Lewis’s report. He noted

that mother “repeatedly stated that she understood the boys love their father, are close to their

father, and need their father in their lives.” Second, to address the risk, however remote, that

mother might take the children to Japan and never return, the trial court, over mother’s objection,

prohibited her from taking the children to Japan without approval from father or authorization

from the court. The court struck a perfectly sensible balance on the facts presented. We find no

error with regard to the travel restrictions imposed on mother.

                                          CONCLUSION

        We reverse the judgment of the court with respect to the equitable distribution award and

we remand for a new equitable distribution hearing. In all other respects, the judgment of the

trial court is affirmed.

                                                  Affirmed in part, reversed in part, and remanded.




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