COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Lemons

NORA H. BURGAN

MEMORANDUM OPINION*

v. Record Nos. 0720-98-4 and 1417-98-4 PER CURIAM

MAY 4, 1999

EZZAT ZEIN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Stanley P. Klein, Judge

(Nora H. Burgan, pro se, on brief).

No brief for appellee.

In these cases, Nora H. Burgan appeals the decision of the

circuit court denying her motion for sole custody and reducing

the amount of income imputed to Ezzat Zein. Burgan contends

that the trial court erred by (1) retaining joint custody

despite evidence that Zein assaulted her; (2) retaining joint

custody after failing to find that Zein medically neglected and

psychologically abused the parties' children; and (3) imputing

less income to Zein. Upon reviewing the record and opening

brief, we conclude that these appeals are without merit.

Accordingly, we summarily affirm the decision of the trial

court. See Rule 5A:27.

Procedural History

Burgan filed a motion to consolidate these cases. For the

reasons detailed below, we grant Burgan's motion.

Pursuant to Code 8.01-675.3, a notice of appeal to the

Court of Appeals "shall be filed within thirty days from the

date of any final judgment order, decree or conviction. When an

appeal from an interlocutory decree or order is permitted, the

appeal shall be filed within thirty days from the date of such

decree or order . . . ."

From December 1, 1997 through May 22, 1998, the trial court

issued several rulings from the bench and entered several orders

in this matter. The trial judge ruled on custody from the bench

on December 1, 1997. Burgan filed a motion for reconsideration

on January 22, 1998. While issuing a ruling on child support

from the bench during the January 23, 1998 hearing, the trial

judge noted that "I've heard the custody determination and I've

made my ruling subject to any appeal that either of the parties

may file." The order denying Burgan's motion to change custody

was entered February 18, 1998. On March 27, 1998, Burgan filed

a Counter Notice of Appeal, referencing a March 13, 1998 order

of the trial court. No order was entered on March 13, 1998,

although the trial court issued an opinion letter on that date.

By order entered May 22, 1998, the trial court entered a

final order, setting child support and denying Burgan's motion

for reconsideration. Burgan filed a second notice of appeal on

June 19, 1998, setting out the identical issues contained in her

Counter Notice of Appeal.

Our review of the record indicates that the final

appealable order in this matter was entered on May 22, 1998.

The appeal in Record No. 1417-98-4 was timely filed within

thirty days of this order. Because the issues raised in Record

Nos. 0720-98-4 and 1417-98-4 are identical, we grant Burgan's

motion to consolidate these appeals.

Denial of Motion to Modify Custody

Burgan contends that the trial court erred by failing to

modify the current arrangement of joint legal custody. In

support of her motion, Burgan alleged to the trial court that

Zein assaulted her in the children's presence and that Zein

medically neglected and psychologically abused the parties'

children.

The trial court may "revise and alter

such decree concerning the care, custody and

maintenance of the children and make a new

decree concerning the same, as the

circumstances of the parents and the benefit

of the children may require." Code

20-108. In determining whether a change

in custody is warranted, the trial court

applies a two-part test: (1) whether there

has been a change of circumstances since the

most recent custody award; and (2) whether

such a change would be in the best interests

of the child. On appeal, we review the

evidence in the light most favorable to the

prevailing party below. "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."

Hughes v. Gentry, 18 Va. App. 318, 321-22, 443 S.E.2d 448, 451

(1994) (citations omitted).

The trial judge noted that he had based his decision upon

his credibility determinations, and in light of what was in the

best interests of the children. Based upon the testimony

received at the ore tenus hearing, the trial judge found Zein's

testimony to be more credible regarding the circumstances

surrounding Burgan's allegations. The trial judge also noted

"nothing that I've heard . . . convinces me by a preponderance

of the evidence that stripping this father of his title as being

a co-legal custodian is the best interest of the children."

Under Virginia law, lack of mutuality of parties prevents a

prior criminal conviction from precluding a subsequent civil

action. See, e.g., Selected Risks Ins. Co. v. Dean, 233 Va.

260, 355 S.E.2d 579 (1987); Norfolk and Western Ry. Co. v.

Bailey, 221 Va. 638, 272 S.E.2d 217 (1980). Therefore, the

trial court was not required to find Zein's 1996 conviction for

assault binding as to Burgan's current allegations.

Similarly, Burgan contended below that the medical evidence

supported her claim that Zein abused the children. However, the

trial court found that the documentary and testamentary evidence

did not support Burgan's claim that Zein was guilty of abusing

the children by denying them medical treatment or subjecting

them to psychological abuse.

Based upon the testimony, the trial judge's conversation in

camera with the children, and his extensive knowledge of the

parties over the multiple hearings in the past, he found

insufficient evidence to support a finding that Zein continued

to assault Burgan or abuse the children. The trial court's

findings were supported by the evidence. Therefore, we affirm

the trial court's denial of Burgan's motion to modify custody.

Imputation of Income

Based upon the evidence produced by the parties, the trial

court found that there was a material change in circumstances

warranting a reduction in child support. Previously, the trial

court imputed $75,000 in annual income to Zein, based upon the

evidence that he voluntarily walked away from the parties'

business known as "Samadi Sweets." That business was now

operated by Burgan, who testified that she purchased the

business in August 1996. Burgan also testified that she was

unable to draw a salary from the business because it was making

no money. While Burgan contended that Zein sabotaged the

business, the unrefuted evidence concerning the business'

current profits supports the trial court's finding.

The trial court attributed $3,500 in monthly income to

Zein, based upon a representation made by Zein's former attorney

to the trial court. Because the trial court's decision is

supported by evidence, we find no error.

Accordingly, the decision of the circuit court is summarily

affirmed.

Affirmed.

*Pursuant to Code 17.1-413, recodifying Code 17-116.010,

this opinion is not designated for publication.

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