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Engle v. Eberle

Court of Appeals of Virginia

December 17, 2013

TERRY R. ENGLE
v.
VANESSA EVERETTE WHITT EBERLE

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Jonathan C. Thacher, Judge

(Thomas F. Hennessy; Virginia Family Law Center, PC, on brief), for appellant.

(Christian Curtis, on brief), for appellee.

Present: Judges Alston, Decker and Senior Judge Coleman

MEMORANDUM OPINION [*]

PER CURIAM

Terry R. Engle (father) appeals an order granting Vanessa Everette Whitt Eberle's (mother) motion to strike his motions to amend custody and visitation. Father contends the trial court erred by ruling that (1) he failed to offer sufficient proof of a material change in circumstances as defined by Keel v. Keel, 225 Va. 606, 303 S.E.2d 917 (1983), and (2) he could demonstrate a material change in circumstances "only by establishing proof of his continuing sobriety." 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

"On appeal, the Court, in reviewing the ruling to strike a plaintiff's evidence, 'must view the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff.'" Chaplain v. Chaplain, 54 Va.App. 762, 771, 682 S.E.2d 108, 112 (2009) (quoting Economopoulos v. Kolaitis, 259 Va. 806, 814, 528 S.E.2d 714, 719 (2000)).

On September 20, 2006, the parties entered into a consent order which awarded mother sole legal and physical custody of the parties' minor child. Father had visitation as agreed upon by the parties.

In 2008, father was awarded "a minimum of 4 uninterrupted hours on 2 weekends per month." In addition, the order stated:

The parties are encouraged to gradually increase visitation as a record of consistency is shown. Father is encouraged to take whatever steps are necessary to establish proof of his continuing sobriety and the suitability of his home for overnight visitation, with a goal that the Father have such visitation when deemed appropriate by the consent of the parties or upon showing these conditions exist as a change of the present circumstances in which such have not been shown.

In 2011, father sought a modification of custody and visitation. The trial court granted mother's motion to strike because father failed to prove a material change in circumstances.

On April 10, 2012, father filed pleadings to modify custody and visitation. Father sought joint legal custody and expanded visitation. After a two-day hearing, the trial court granted mother's motion to strike. The trial court concluded that father had not shown a material change in circumstances because he did not prove "his continuing sobriety." The trial court further examined the factors in Code ยง 20-124.3 and concluded that it was not in the ...


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