Opinion
Record No. 1720-93-4
April 26, 1994
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY CARLETON PENN, JUDGE DESIGNATE
(John W. Acree; Acree Associates, on brief), for appellant.
(David C. Roehrenbeck, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Donna Silman (mother) appeals the decision of the Circuit Court of Fauquier County (trial court) awarding physical custody of her daughter (child) to Robert D. Hutchison (father). Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
"On appeal, the judgment of the trial court is presumed correct . . . . The burden is on the party who alleges reversible error to show by the record that reversal is the remedy to which he is entitled." Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991) (citations omitted). "The judgment of a trial court sitting in equity, when based upon an ore tenus hearing, will not be disturbed on appeal unless plainly wrong or without evidence to support it." Box v. Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986) (citations omitted).
The transcript of the hearing below was not timely filed and hence is not part of the record on appeal. Rule 5A:8. Nevertheless, "[i]f the record on appeal is sufficient in the absence of the transcript to determine the merits of the [appellant's] allegations, we are free to proceed to hear the case." Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986). The trial court's June 11, 1993 letter opinion provides a sufficient record to resolve this case.
"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 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." Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986). "The second prong . . . is clearly the most important part of the two-part test." Id. at 71, 348 S.E.2d at 41 (quoting Keel v. Keel, 225 Va. 606, 612, 303 S.E.2d 917, 921 (1983)).
In its letter opinion, the trial court recited the evidence before it, reflecting the current circumstances of both mother and father. Although the court failed to explicitly recite the changed circumstances of the parties, it implicitly did so by noting that father had remarried and had moved to a new home in a new community. Additionally, father had addressed his drug/alcohol problems and was attending AA meetings. He is part-owner of a business, and his current wife is available to care for child while father is at work. On the other hand, mother had allegedly left child and her sister home alone many times, and was recently convicted of stalking a witness who testified in regard to these incidents. The court did specifically find that "[t]he best interests of [child] will be served by awarding her physical custody to her father."
Based upon the record before us, we cannot say the trial court erred in finding that a change in custody to father was in child's best interests. The record shows that father has achieved a degree of stability in his life, whereas mother has been involved in a sometimes violent relationship, has left child without adult supervision, has not found employment and has been convicted of a criminal violation. Accordingly, evidence supports the trial court's implicit finding that there has been a change in circumstances since the most recent custody award, and its explicit finding that a change in custody is in child's best interests.
Accordingly, the opinion of the trial court is affirmed.
Affirmed.