David Dolan v. Tina Dolan ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
DAVID DOLAN
MEMORANDUM OPINION *
v. Record No. 1188-00-1 PER CURIAM
NOVEMBER 28, 2000
TINA DOLAN
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Philip L. Russo, Judge
(Cheshire I'Anson Eveleigh; Wolcott, Rivers,
Wheary, Basnight & Kelly, P.C., on brief),
for appellant.
(Debra C. Albiston; Kaufman & Canoles, P.C.,
on brief), for appellee.
David Dolan (husband) appeals from an order entered by the
circuit court. He contends the trial court abused its discretion
by refusing to allow him to remove the parties' minor children
from Virginia to Indiana. Upon reviewing the record and briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
Background
By decree entered January 8, 1999, the trial court granted
the parties a divorce and awarded the parties joint legal
custody of the two minor children. Husband received sole
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
physical custody of the children "subject to full and reasonable
rights of visitation being reserved" for wife. The trial court
ratified, affirmed and incorporated in the decree a stipulation
and agreement dated December 10, 1998, in which the parties
agreed that "[v]isitation shall include three consecutive
weekends to Wife, . . . then one like weekend to Husband." Wife
also received "two two-week non-consecutive visits with the
children each summer." In addition, the parties prepared a
detailed visitation schedule for holidays.
On April 23, 1999, wife filed a petition in the juvenile
and domestic relations district court seeking primary physical
custody of the minor children in anticipation of husband's
recent decision to move to another state and take the children
with him.
On January 12, 2000, the trial court conducted a hearing
and heard evidence on husband's request to relocate the children
to his hometown, Michigan City, Indiana, and on mother's request
for physical custody to prevent husband from removing them from
Virginia.
Husband lives with the two children in Virginia Beach.
Wife pays child support and lives in northern Virginia. She
regularly travels to Virginia Beach for visitation. Wife has a
daughter from another marriage with whom the minor children have
a close relationship. Wife explained that when she travels to
Virginia Beach, she has a room at the home of a couple that have
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known the children since birth and with whom the children are
very close.
Husband and wife described their respective employment
situations and their involvement with the children. They
identified and discussed persons who are available to help care
for the children. Husband described his employment history, the
job he was offered in Michigan City, Indiana, his hometown, and
the advantages of having many relatives in Indiana to assist him
with the children. The evidence demonstrated that the greater
distance between Indiana and northern Virginia would reduce the
number of visits wife presently is able to manage.
Dr. Kollar, a child psychologist, testified that the
children love both parents. She agreed that it was important
for the two young girls, born in 1992 and 1994, respectively, to
have frequent contact with their mother. Dr. Kollar also
explained that the youngest child has difficulty being away from
husband for long periods and that, under the present visitation
scheme, husband is available if needed.
Permanently Removing a Child from Virginia
"A court may forbid a custodial parent from
removing a child from the state without the
court's permission, or it may permit the
child to be removed from the state." It is
well settled that the child's best interest
is the criterion against which such a
decision must be measured. Such a decision
is a matter of discretion to be exercised by
the court, and, unless plainly wrong or
without evidence to support it, the court's
decree must be affirmed.
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Bostick v. Bostick-Bennett, 23 Va. App. 527, 533, 478 S.E.2d
319, 322 (1996) (quoting Scinaldi v. Scinaldi, 2 Va. App. 571,
573, 347 S.E.2d 149, 150 (1986)).
In considering whether relocating will be in a child's best
interest, the court must consider whether "the benefits of the
[parent-child] relationship can[] be substantially maintained if
the child is moved away from the non-custodial parent" and, if
not, the relocation may not be in the child's best interest.
Scinaldi, 2 Va. App. at 575, 347 S.E.2d at 151.
Factors that a trial court should consider in determining
whether a move from Virginia is in the child's best interest
include: the relative economic advantages and disadvantages
between the two locations; the educational and cultural
opportunities available at both locations; the presence and
availability of extended family members or support persons to
assist the parent at both locations; the present physical,
emotional and cognitive development of the children in their
present Virginia location; the present involvement and roles
played by the respective parents in the care, education and
development of the children; and the effect on visitation by the
noncustodial parent if the move were allowed. See Carpenter v.
Carpenter, 220 Va. 299, 302, 257 S.E.2d 845, 848 (1979).
After hearing extensive evidence from numerous witnesses,
the trial court concluded that the best interests of the
children would not be served by allowing husband to remove them
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from Virginia and relocate them to Indiana. The trial court
explained:
There is no doubt in my mind . . . that the
children would have a close relationship
with [husband's] relatives in Michigan City,
but that's not the question. The question
is, is it more important and in the best
interests of the children to have a close
relationship with his relatives by moving
the children to Michigan City, or is it more
important to have a continued relationship
with their mother? And in my opinion, the
continued relationship with their mother can
only be brought about by maintaining [the]
status quo and by not moving the children to
Michigan City.
That decision was supported by the evidence and was not
plainly wrong. Accordingly, the decision of the circuit court
is summarily affirmed.
Affirmed.
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