Nora H. Burgan v Ezzat Zein

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.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

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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

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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

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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

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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

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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.