Opinion
Record No. 0438-92-2
January 12, 1993
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE JAY T. SWETT, JUDGE
Margaret McLeod Cain, for appellant.
J. Barrett Jones (Jones Green, on brief), for appellee.
Present: Judges Moon, Elder and Fitzpatrick
Argued at Richmond, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The judgment appealed from is affirmed. It was not improper for the trial court, in sustaining a demurrer to a change of custody petition, to consider an admission by counsel as to the content of appellant's anticipated evidence concerning changed circumstances. See Crone v. Richmond Newspapers, Inc., 238 Va. 248, 384 S.E.2d 77 (1989). In Crone, the Supreme Court reversed the trial court for wrongfully sustaining a demurrer on one ground, but refused to consider another ground raised by appellant. The Court stated: "Apparently, [appellant] at the trial level agreed that such a claim was not covered under the Act and we will not permit retraction of that concession at the appellate level." Id. at 255, 384 S.E.2d at 81.
The issue is whether the father was alleging a "material change in circumstances so that the best interests of the child 'dictated' that custody be transferred." Turner v. Turner,
3 Va. App. 31, 34, 348 S.E.2d 21, 22 (1986). "Whether a change of circumstances exists [in a custody proceeding] is a factual finding that will not be disturbed on appeal if the finding is supported by credible evidence." Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986).
Here, the appellant alleged in the amended petition that the change in circumstances that warranted a change in custody were: (1) Rachel, at age 12, had reached a stage where she needed her father to help shape her identity; and (2) Rachel stated to Dr. Carter, the psychological evaluator, that she would rather die than stay in Charlottesville. The onlymaterial change alleged relates to Rachel's statement. At the hearing, although the court did not hear testimony of Rachel, it questioned appellant's counsel about the statement and Dr. Clark's evaluation. The court stated, "Clearly it's not evidence in Dr. Clark's letter that he was concerned that she would do physical harm to herself." Appellant's counsel stated, "Your honor, if you want me to tell you that this child might kill herself if you don't have a custody hearing and change custody to her father, I'm not going to tell you that."
Based on these admissions, the court found that the "allegations in the amended petition for custody do not constitute a material or substantial change in circumstances that would justify a change in custody."
"[A]n attorney at law, by virtue of his employment, . . . has full authority to act on behalf of his client in the conduct of the litigation before the court, and by virtue of such authority he may make admissions of or stipulations as to facts, the effect of which is to dispense with the proof of such facts." Harris v. Diamond Constr. Co., 184 Va. 711, 722, 36 S.E.2d 573, 578 (1946).
The trial court had before it not only the pleadings, including the demurrer, it also had the previous history of the case showing litigation since 1981, including two custody orders in 1986 and 1988, the doctor's report prepared in anticipation of a hearing on the current petition, and the admissions of appellant's counsel. The court accepted appellant's counsel's admission of what her evidence would show and assumed that all she alleged was true, as we should on appeal. With such admission, the court ruled that the appellant could not, under the facts of this case, show a material change of circumstances.
The record supports the trial court's ruling that no material change of circumstances could be proved following the last order of custody of November 14, 1988, approximately nineteen months before this petition was filed. Our prior decisions and those of the Supreme Court hold that any petition based upon a change of circumstances relates back to the entry of the most recent custody order and not to the hearing date. Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986) (citing Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983)); Turner v. Turner, 3 Va. App. 31, 34, 348 S.E.2d 21, 22 (1986).
Because the trial court found that no material change was alleged that would satisfy Visikides, we need not consider whether a substantial change was alleged as was required under the stricter standard contained in the agreement incorporated into the 1986 decree.
Affirmed.