Brian D. Bailey v. Amy K. Sarina ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Causey and Chaney
UNPUBLISHED
Argued by videoconference
BRIAN D. BAILEY
MEMORANDUM OPINION* BY
v. Record No. 0589-21-4 JUDGE DORIS HENDERSON CAUSEY
JULY 19, 2022
AMY K. SARINA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James P. Fisher, Judge
Jennifer M. Guida (Westlake Legal Group, on brief), for appellant.
Elena Zarabozo (Jason Yan; O’Melveny & Myers LLP, on brief), for
appellee.
(Robert M. Vernail; The Law Office of Robert Vernail, on brief),
Guardian ad litem for the minor child.
Brian D. Bailey (“father”) and Amy K. Sarina (“mother”) are the biological parents
(“parents”) to D.B., a minor child and the subject of this dispute. Father appeals from two orders
of the Circuit Court of Loudoun County (“circuit court”): (1) an order granting sole legal
custody and primary physical custody of D.B. to mother and (2) an order for father to pay all the
guardian ad litem (“GAL”) fees associated with this matter. Father contends that the circuit
court erred in: (1) “prohibiting [D.B.] from testifying and then in its ruling stated[,] ‘there was
insufficient evidence to determine [D.B.’s] preference’”; (2) “failing to determine the minor’s
competency to testify and failed to consider the preference of [D.B.], pursuant to Va. Code
§ 20-124.3”; (3) “not considering the GAL report, position, and recommendation in making its
ruling”; (4) “ordering [father] to pay all of the GAL costs and fees, without a hearing or
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
presentation of evidence”; (5) “not allowing [father] to put on his complete case and allowed
[mother] to put forth evidence for 1.5 days of the 2 days of trial”; (6) “prohibiting [father]’s
expert witness[,] Dr. Hoffmann[,] from testifying in Court and requiring [father] to proffer the
testimony”; (7) “using and considering evidence from [D.B.]’s testimony at the rule to show
cause hearing [during] the modification hearing”; (8) “permit[ting Dr.] Behrmann to address and
opine on parental alienation against [father] when (a) Behrmann did not meet with [father]; (b) in
Behrmann’s report he made a determination that there was no parental alienation by [father] and
testified contrary to his written report; (c) [mother] did not disclose parental alienation as a topic
in which Behrmann would testify to in her late discovery response regarding experts”;
(9) “considering the January 24, 2020[,] [t]ranscript . . . in making its [r]uling . . . when neither
the [t]ranscript nor any other evidence of the January 24, 2020 hearing, was moved into evidence
or taken at the [trial]”; (10) “considering its contempt order against [father] when the [c]ourt
vacated the finding of contempt”; (11) “giving weight to Behrmann’s testimony when Behrmann
admittedly was not legally permitted to practice in the Commonwealth of Virginia for a period of
five months (approximately July 2020 to November 2020) and admittedly treated/met with
[mother] and [D.B.] during that timeframe in Virginia”; (12) “giving no weight to Behrmann’s
testimony that contradicted his written report”; (13) “giving no weight to Dr. Ling’s . . .
testimony regarding [mother]’s inability to make decisions for [D.B.]; and that [mother]’s
internal conflicts had negative effects on relationships with individuals, including [D.B.] and
[father]”; (14) “finding that ‘father’s actions have been contrived with a goal of “winning” a
fight against the mother rather than serving the interests of [D.B.]’”; (15) “not considering all
evidence and testimony before the [c]ourt when determining custody and visitation, pursuant to
[Code] §20-124.3”; (16) “not giving weight to the uncontroverted evidence that [mother]
manipulated [D.B.] to file a false affidavit for a protective order and initiated criminal charge[s]
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against [father]’s wife for false allegations of abuse when determining custody and visitation,
when these allegations were [mother]’s original basis for modification”; (17) “awarding sole
legal and primary physical custody to [mother] and granting [father] minimal weekend visits
with [D.B.] as neither party nor the [GAL] requested same”; (18) “denying [father]’s Motion to
Quash Behrmann as an Expert Witness”; and (19) “removing [father]’s Joint Motion to Clarify
May 6, 2021 Opinion Order and Motion to Stay from the docket and never [making] a ruling
relative to Winter Break and Summer Vacation.”
For the reasons below, we affirm the judgment of the circuit court.1
BACKGROUND2
“[W]e review the facts in the light most favorable to appellee[], [mother,] granting [her] all
reasonable inferences that can be drawn from the evidence, because [she was] the prevailing part[y]
below.” Geouge v. Traylor, 68 Va. App. 343, 347 (2017).
D.B. was born to mother and father on October 13, 2006. Shortly after D.B.’s birth, parents
divorced. Years of litigation regarding the child (e.g., custody and visitation disputes) followed.
The most recent custody order before the current dispute was entered on June 6, 2014, and was the
1
Father filed two pre-argument motions: (1) a motion for supersedeas bond related to
the order that father pay the GAL fees and (2) a motion requesting that this Court disregard “any
citations or arguments of [mother] in her Brief with reference to the January 24, 2020 Rule to
Show Cause Transcript.”
Father’s motion for supersedeas bond is denied.
Regarding father’s second motion, father, in assignment of error (9), argues that the
circuit court erred in considering the January 24, 2020 show cause hearing transcript. Evaluation
of this error requires that we review the January 24, 2020 show cause hearing transcript to
determine whether the circuit court relied on it or relied on it erroneously. Thus, father’s motion
is denied.
2
Part of this record was sealed. Nevertheless, the appeal necessitates unsealing relevant
portions of the record to resolve the issues father has raised. Evidence and factual findings
below necessary to address the assignments of error are included in this opinion. Consequently,
“[t]o the extent that this opinion mentions facts found in the sealed record, we unseal only those
specific facts, finding them relevant to the decision in this case. The remainder of the previously
sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017).
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governing order during the proceedings below. Under this order, parents had joint legal custody of
D.B. and father had primary physical custody of D.B. The order also required that, unless mother
was to pick D.B. up from school, the parent relinquishing custody of D.B. was responsible for
taking D.B. to the other party’s residence. Mother had visitation with D.B. every other weekend
and some Wednesday evenings.
The events leading up to the current dispute began in June 2018, when mother filed an
“Emergency Motion to Modify Custody and Visitation,” alleging that D.B.’s stepmother, Teresa
Bailey (“stepmother”), assaulted D.B., in violation of a protective order previously entered against
stepmother.3 In the motion, mother requested sole legal and physical custody of D.B. On April 9,
2019, father filed a “Cross Motion to Modify Custody and Visitation,” alleging that mother was
taking actions to alienate father from D.B., including fabricating allegations that stepmother
assaulted D.B. On July 30, 2019, father filed a motion for psychological evaluations of mother and
D.B., requesting that Dr. Ling conduct the evaluations. On August 8, 2019, the court granted
father’s motion for psychological evaluations and ordered Dr. Ling to complete the evaluations and
produce a written report. On November 6, 2019, father filed an emergency motion to “Suspend
Mother’s Visitation Pending Investigation,” based on allegations that mother threatened to kill D.B.
and violated the 2014 custody order by drinking alcohol to excess in front of D.B. On November
12, 2019, the circuit court denied father’s motion without prejudice, with the option for father to
place the matter back on the docket after Dr. Ling’s evaluations were complete. On November 8,
2019, father filed a motion for mother to show cause why she should not be adjudged in contempt
of court for violating the 2014 custody order due to mother’s alleged excessive drinking in D.B.’s
presence/exposing D.B. to those who had done so. On November 21, 2019, mother filed an
3
The court denied mother’s motion, except to incorporate a CPS safety plan dated June
25, 2018, as an order of the court, and continued that matter as a general custody/visitation
modification.
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emergency motion for father to show cause why he should not be adjudged in contempt of court for
violating the 2014 custody order by “withholding [D.B.] from his scheduled visitation on three
consecutive incidences” and father “indicat[ing] that he intends to continue to” do so.
On November 25, 2019, the circuit court issued an order stating that motions to show cause
were not “literal emergenc[ies]” and directed the parties to schedule a date to hear the motions. The
circuit court also noted that it “expects both parties to adhere to the parenting time arrangements in
the current [custody] order unless and until that order is modified.”
The court held a hearing on both parents’ motions to show cause on January 24, 2020. In
support of her motion, mother testified that she had not seen D.B. for visitation since November 15,
2019, in violation of the current custody order. D.B. testified in support of father’s motion. The
court denied father’s motion but granted mother’s motion. The court entered an order finding father
“in contempt for not complying with the provisions related to the award of visitation of the mother.”
The court, however, ordered that the finding of contempt be stayed, “and the imposition of sentence
in that matter is suspended” until trial on the motions to modify custody and visitation, ordering that
if father “is compliant with said custody & visitation order between this date and the trial[,] . . . such
finding of contempt will be vacated and dismissed.”
Trial on mother’s and father’s motions to modify custody and visitation was held over two
days on December 15, 2020, and March 8, 2021. Leading up to the trial, on November 20, 2020,
father moved to quash one of mother’s expert witnesses, Dr. Behrmann, or, alternatively, moved to
limit Dr. Behrmann’s testimony. On December 4, 2020, the circuit court denied both motions.
On December 15, 2020, before opening statements, the circuit court vacated the January 24,
2020 finding of contempt against father. That same day, the parties read into the record the
following stipulations regarding custody of D.B.:
a. Thanksgiving: Thanksgiving shall be defined as after school at
4:30 p.m. the day school recess begins for Thanksgiving until
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Sunday at 6:00 p.m. The parties shall alternate having
Thanksgiving with the Child each year. Mother shall have the
Child in even years and Father shall have the Child in odd years.
b. Spring Break: Spring Break is defined as after school at 4:30 p.m.
the day school recess begins for Spring Break until the day before
school resumes at 6:00 p.m. The parties shall alternate Spring
Break with the Child each year. Mother shall have the Child in
even years and Father shall have the Child in odd years.
c. Mother’s Day/Father’s Day: The respective parent shall have the
child from after school on Friday at 4:30 p.m. until Sunday at
6:00 p.m. each year.
d. Transportation: The party starting their custodial time with the
Child shall be responsible for transportation from the other
party’s home.
Mother testified in support of her motion to modify. Mother testified that she did not see
D.B. for three months, from November 2019 to January 2020. Mother also testified that she feels
like father “tries to undermine [her] authority with [D.B.] as his mother.” She noted that D.B. had
“poor academic progress” when father was not following the custody arrangement and that during
that time, mother was unable to help D.B. with his schoolwork like she normally did during their
visits. Mother testified that, to her knowledge, Robert Vernail, the current GAL, had done nothing
to assess mother’s parenting skills.
Dr. Ling testified as an expert in support of mother’s motion. He testified that his most
recent evaluation of mother “did not suggest that there was a significant alcohol or substance abuse
problem for her.” Dr. Ling testified that, according to his evaluation, mother demonstrates
“appropriate parenting knowledge and strategies.” He also testified that D.B. was “much more
egocentric and more self-involved” and it seemed to Dr. Ling that D.B. “was responding to
circumstances between himself and whichever parent [had custody] of him by going to . . . the
[other] parent . . . and stating that he was having difficulty, which could include him reporting that
he was being abused or he was being physically assaulted.”
Dr. Behrmann also testified as an expert in support of mother’s motion. Dr. Behrmann
defined the concept of “parental alienation” as “when there’s a preexisting good relationship the
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child has with . . . a parent” who “doesn’t have any severe mental health issues, there’s been no
real confirmed abuse of the child by that parent,” and “the child wants to refuse, resist, rebel
seeing that parent, liking that parent.” Additionally, “the other parent on the other side has been
engaged in a repetitive denigration of the parent that the child no longer wishes to see.”
Dr. Behrmann noted that when he uses the term “parental alienation,” he is referring specifically
to the conduct described in the “parental alienation” definition he enumerated. He clarified that
he “want[ed] to distinguish it between the alienating behaviors that someone can conduct that
don’t necessarily mean the child is alienated.” He noted that alienating behaviors can include:
“when a parent repetitively denigrates the other parent”; when a parent “seeks to prevent the
remediation that the other parent wants with [the] child”; “when the parent discusses legal
issues” regarding the other parent; and when the parent “accuse[s] the other parent of being
dangerous or having severe mental health issues.” Based on his evaluation of mother,
Dr. Behrmann concluded that mother did not engage in parental alienation against father.
Dr. Behrmann testified that, based on his evaluation of mother, she was “a good mom,” an
“adequate” mother, and this opinion was “established to a reasonable degree of psychological
certainty.” He also noted that, in the multiple videos that father took of D.B. inside father’s
home, father engaged in alienating behaviors against mother. Dr. Behrmann noted that he
“actually . . . observed interaction” between D.B. and mother. He also testified that there is no
parental alienation in this case because “[D.B.] is observably having a positive relationship with
both parents at different times. You can’t have alienation if the child isn’t alienated.”
During Dr. Behrmann’s testimony, mother played clips from videos father had recorded in
his home speaking with D.B. In one video, father told D.B., “I don’t ever go back to your mom
and tell her ‘[D.B.] told me this’ . . . because I know that she’s going to come after you.” Later,
father seemingly confirmed to D.B. that he had said it was okay to lie to mother: “[Y]ou’re
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talking about what I told you ‘do what you need to do so that your mom doesn’t yell at you,’” to
which D.B. replied “yes.”
Father sought to have D.B. testify in support of father’s motion and asked that the court
question D.B. so that D.B. would not be subject to “the pressure of counsel cross[-]examining and
direct examination.” Mother objected. The court sustained the objection and did not permit D.B. to
testify.
Father testified in support of his motion. He testified that in November 2019, he filed an
emergency motion to suspend mother’s visitation based on D.B.’s allegations that mother abused
alcohol in front of him. According to father, D.B. had been making those allegations since
August/September 2019. Father testified, however, that at that time—in November 2019—he had
done nothing to verify these allegations other than talking to D.B. and showing him pictures of
alcohol. Father testified that after the January 24, 2020 show cause hearing, he had reached out to
Matt Knight, the father of mother’s other son, to help Knight in his custody battle against mother.
Father offered to Mr. Knight contact information for the court reporter from the show cause hearing,
videos father had taken of D.B., and emails between father and mother.
Father informed the court that their last witness would be Dr. Hoffmann. The court
responded, “Well, we’re out of time. The case was set for two days. We end court at 4:30.” The
court did not allow Dr. Hoffmann to testify but permitted father to proffer Dr. Hoffmann’s
testimony. Father submitted a lengthy proffer. Dr. Hoffmann would testify that: (1) she did not
believe that “any of the conversations between [father and D.B.] were the primary or sole reason
that there was a rupture in the relationship between [D.B. and mother],” although acknowledging
that some of these conversations were “inappropriate”; (2) multiple factors, not just withholding a
child from visitation with the other parent, “typically lead to parental alienation”; (3) based on her
conversations with D.B., D.B. “in his mind definitely believed that . . . there was a threat made to
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him from his mother and by his mother”; (4) there was no parental alienation here, but rather,
“contact resistance and refusal”; and (5) she believed D.B. would not benefit from reunification or
conjoint therapy at that time. Father further proffered testimony that would have related to the
integrity of Dr. Behrmann’s testimony; Dr. Hoffmann would testify that: (1) “she had an
opportunity to review Dr. Behrmann’s report as well as the raw data that was submitted to her,”;
(2) “Dr. Behrmann’s report that was submitted before this court completely eliminated a lot of the
major things that were supported by the raw data,”—“based on the raw data, [mother] was in the
third percentile with respect to her . . . competence to be able to parent, and that she was in the sixth
percentile to be able to deal with reinforcement.” “[N]one of [this information] appeared in
Dr. Behrmann’s report,”; (3) “Dr. Behrmann . . . left out the fact that he believed that [mother] had a
high desirability and that [mother] was not fully disclosing; (4) “Dr. Behrmann cherrypicked what
he wanted this court to hear”; (5) mother’s “personality does cause some concern with respect to her
ability to parent, her d[y]sfunctional nature”; (6) Dr. Behrmann should have but did not “reach[] out
to third parties to corroborate . . . what was being said” by mother; (7) she (Dr. Hoffmann) “would
have used further evaluations and [testing] with respect to . . . parental abilities and capacity that
go[] beyond . . . self-reporting”; (8) “somebody in the medical profession would not be able to
[draw a conclusion], based on [the evaluation] done by Dr. Behrmann, about somebody’s fitness as
a parent”; (9) based on her experience and knowledge of the profession’s ethical guidelines,
Dr. Behrmann had a conflict because “he did a custodial evaluation and then did an independent
evaluation of [mother]”; (10) it is “illegal and contrary to the board standards for somebody, even if
it’s accidental . . . to be practicing in the Commonwealth of Virginia without having a license,” and
“Dr. Behrmann was not licensed in the Commonwealth of Virginia on June 30, 2020, until
November 20, 2020”; (11) “it is [a] regular course of action [in the profession]” that regarding
divorced parents, “before any practitioner . . . meet[s] with the child, [he or she should] reach out to
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the other parent to get consent and absent [that consent] or a court order,” the practitioner should not
meet with the child; (12) “the credential of the American College of Forensic Examiners that
Dr. Behrmann puts at the end of all his reports” “is merely an online course” and “not an actual
certification.”
Mother proffered her dispute of certain facts and offered alternate facts. Mother proffered
that: Dr. Hoffmann “did not do any testing, like Dr. Ling and Dr. Behrmann. No psychological
testing, no cognitive testing, no academic testing, no emotional testing. All she did was meet with
[D.B.] once, meet with [father] once, meet with [father] and [his counsel] once, and then went over
to [father’s] household once.” Mother proffered that Dr. Hoffmann did not do any evaluations of
D.B., mother, or father and has never talked to or observed mother. Mother further proffered that
Dr. Hoffmann did not consider nearly as much data as Dr. Ling and Dr. Behrmann did—
Dr. Hoffmann did not look at notes from D.B.’s prior therapist; at prior evaluations conducted by
Dr. Ling in 2009 and Dr. Behrmann in 2012; or at various other reports “all listed by Dr. Ling.”
Mother proffered that Dr. Hoffmann’s “sole purpose, according to her disclosure, was to rebut
Dr. Behrmann.”4
During closing arguments, the GAL noted that for the “practical reason” that D.B. “has a
peer group that’s developing” at “Loudoun Valley High School,” D.B. should remain close to the
school. The GAL stated that mother no longer lives near the high school, but father does. The
GAL recommended that D.B.’s “primary residence should remain in [father]’s household.
Again, primarily practically. He’s been [there] — since the 2014 court order.”
4
Dr. Behrmann’s involvement with the Bailey-Sarina family dates back to at least
November 2008, when the circuit court ordered him to complete a custody evaluation regarding
D.B. Dr. Ling’s involvement with the family dates back to at least August 2019, when the
circuit court appointed him to complete psychological evaluations of mother and D.B. In
contrast, Dr. Hoffmann only became involved with the family around August 2020, when father
retained her as an expert witness for the motion to modify custody and visitation at issue here.
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After the trial, both parties filed written post-hearing closing arguments in support of
their motions. In her brief, mother stated: “[t]o the extent the Court is inclined to grant sole
legal custody to one parent as a means of resolving conflict with respect to co-parenting, then
[mother] requests alternative relief in the form of sole legal custody instead of shared legal
custody.” The court entered an order on May 6, 2021 (“final order”), awarding sole legal custody
and primary physical custody to mother. In the order, the court enumerated each of the ten factors
the court must consider in determining child custody under Code § 20-124.3. As to one of the
factors—the child’s preference—the court stated, “There is insufficient evidence on this factor for
the court to make a finding.” The order also contained a provision stating that:
Except as provided in the stipulation of the parties as to visitation, the
Plaintiff Father is awarded visitation on alternating weekends from
Friday at 4:00 pm. to Sunday at 7:30 p.m. The Stipulation as to
Transportation and Visitation for Certain Holidays is incorporated
into this order and made a part thereof for purposes of the agreed
upon visitation.5
On May 14, 2021, the GAL filed a “Motion for Stay of Finality and for the Determination
of GAL Fees.” Also on May 14, 2021, father and the GAL filed a “Joint Motion to Clarify May
6[,] 2021 Opinion and Order and Motion to Stay,” requesting that the court “[e]nter an order
establishing a [visitation] schedule for Winter Break and Summer Vacation”; “[e]nter an order
allocating the [GAL] fees”; and stay the final order. On May 25, 2021, the court ordered that
“the [GAL] costs and fees shall be paid by . . . Father, no later than 45 days from this order.”
Father now appeals from the final order modifying custody and the May 25 order allocating
GAL fees.
5
The stipulations specifically allocate time between the parents for Thanksgiving, Spring
Break, Mother’s Day, and Father’s Day.
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II. ANALYSIS6
Assignments of Error (3), (11), (12) & (13)
In assignments of error (3), (11), (12), and (13), father argues that the circuit court erred
either by giving weight or not giving weight to certain evidence.
In assignment of error (3), father alleges that the circuit court erred in failing to consider
the GAL’s recommendation.
In assignment of error (11), he argues that the court erred in finding Dr. Behrmann’s
testimony credible. Relatedly, in assignment of error (12), father argues that the court erred in
crediting only the parts of Dr. Behrmann’s testimony that were favorable to mother and
disregarding the parts favorable to father. Father contends that the court “did not consider that
Behrmann was unethically and criminally practicing psychology in Virginia for a five[-]month
period” due to a lapse in his license. Father also cites Dr. Behrmann’s cross-examination
testimony, in which he discusses the limitations of his evaluations and his findings that mother
exhibits what father classifies as negative personality traits. Father argues it was error for the
court not to discredit Dr. Behrmann’s testimony given these facts.
In assignment of error (13), father contends that the circuit court erred in giving “no
weight . . . to [Dr.] Ling’s testimony regarding [mother’s] inability to make decisions for [D.B.]”
and not giving weight to “how [mother]’s internal conflicts had negative effects on relationships
with individuals, including [D.B.] and [father].” Father argues that the court should have
credited Dr. Ling’s testimony that mother’s purported problematic personality traits “cause[]
problems in her relationship with [D.B.] and that such factors also present an issue when
co-parenting with [father].”
6
For efficiency, we have grouped assignments of error based on similarity in the type of
legal errors they allege and analysis they require.
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Father posits that if the court had weighed the evidence in the manner he suggests, the
court would have made a different ruling on custody.
Generally, “the [fact finder] is the judge of both the weight of the testimony and the
credibility of witnesses.” Spratley v. Commonwealth, 154 Va. 854, 864 (1930). “Traditional
principles dictate, both in the civil and criminal law, that the determination of a witness’
credibility is within the fact finder’s exclusive purview because he has the best opportunity to
observe the appearance and demeanor of the witness.” Goodyear Tire & Rubber Co. v. Pierce, 5
Va. App. 374, 381 (1987). The fact finder, however:
[M]ay not arbitrarily or without any justification therefor give no
weight to material evidence, which is uncontradicted and is not
inconsistent with any other evidence in the case, or refuse to credit
the uncontradicted testimony of a witness, . . . whose credibility
has not been impeached, and whose testimony is not either in and
of itself, or when viewed in the light of all the other evidence in the
case, unreasonable or improbable, and is not inconsistent with any
fact or circumstance to which there is testimony or of which there
is evidence.
Spratley, 154 Va. at 864 (emphasis added). In other words, a fact finder may generally decide to
give no weight to evidence. It may not, however, disregard/give no weight to evidence that is
“uncontradicted and not inconsistent with any other evidence in the case.” Drinkard v.
Commonwealth, 163 Va. 1074, 1081 (1935).
Here, regarding assignment of error (3), the court properly gave no weight to the GAL’s
recommendation that father have primary custody of D.B. because it was contradicted by other
evidence. First, the GAL made this recommendation for the purposes of “practical[ity],” as D.B.
had lived with father since 2014 and attended school near father’s house, not necessarily because
father is a more suitable parent. Second, the GAL’s recommendation is contradicted by other
evidence in the record, namely evidence that shows mother to be a more suitable parent.
Additionally, evidence of father’s parental capacity issues contradicts the GAL’s
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recommendation. Such evidence includes, but is not limited to, Dr. Behrmann’s and Dr. Ling’s
testimony that mother is an adequate parent, mother’s testimony that father did not grant her
visitation with D.B. for a period of about three months, and videos showing father denigrating
mother to D.B. Because the GAL’s recommendation was not “uncontradicted and not
inconsistent with any other evidence in the case,” it was within the circuit court’s discretion to
disregard that recommendation. Thus, the circuit court did not err in doing so.
Regarding assignment of error (11), it was with the circuit court’s “exclusive purview” to
decide how much weight to give Dr. Behrmann’s testimony because the court had the best
opportunity to observe the appearance and demeanor of Dr. Behrmann. Regarding assignments
of error (12) and (13), the court did not err in failing to give weight to certain parts of
Dr. Behrmann’s and Dr. Ling’s testimony because this evidence was contradicted by other
evidence. As fact finder, the court had the best opportunity to observe the appearance and
demeanor of both witnesses and decide which parts of the testimony to credit. In fact, father, in
his brief, notes that evidence he asserts the court should have credited is contradicted by other
evidence in the record.
The court could have disregarded testimony that Dr. Behrmann was practicing
psychology in Virginia for a five-month period without a license, instead crediting
Dr. Behrmann’s testimony based on evidence that Dr. Behrmann (1) has been licensed in
Virginia since 2001—with a “brief hiatus . . . due to [a] technical malfunction on the internet”;
(2) has never faced disciplinary action in Virginia related to his license; (3) contacted the
“Virginia licensing board after this technical glitch,” after which his license was reinstated; and
(4) for the purpose of caution, did not base any of his opinions given at trial on “interviews or
observations or reporting [he] did” during the time his license had lapsed, and also did not collect
any fees for work done during that period. As mother correctly notes on brief, this “technical
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glitch” with the renewal of Dr. Behrmann’s license was clearly explained and did not require the
circuit court to reject his testimony.
Further, Dr. Behrmann’s testimony discussing the limits of his evaluations and his
findings that mother has purported problematic personality traits is contradicted by his testimony
that the opinion he expressed about mother “being an adequate mom” was “established to a
reasonable degree of psychological certainty.”
Dr. Ling’s testimony that mother’s potentially problematic personality traits could affect
her relationship with D.B. and ability to co-parent with father is also contradicted by
Dr. Behrmann’s testimony that mother is “an adequate mom” and by Dr. Ling’s own testimony
that, according to his evaluation, mother demonstrates “appropriate parenting knowledge and
strategies.” Because other evidence in the record contradicts the parts of Dr. Behrmann’s and
Dr. Ling’s testimony unfavorable to father, the circuit court could use its discretion in weighing
Dr. Behrmann’s and Dr. Ling’s testimony, as well as their credibility.
Accordingly, the circuit court did not err in disregarding certain evidence because such
evidence was contradicted by other evidence in the record.
Assignments of Error (9) & (10)
Father combines assignments of error (9) and (10) in his brief and argues that the circuit
court abused its discretion in considering evidence from the January 24, 2020 show cause
hearing—both the final contempt order and the transcript of the hearing. Father asserts that “the
court has used extrajudicial information from a prior proceeding” in finding that “father has
willfully withheld the child from mother’s court ordered visitation on at least one occasion.” He
contends that “there was no evidence presented by either party regarding [father] willfully
withholding [D.B.] from visitation.” Lastly, father argues that the court cannot consider the
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contempt order as evidence because the finding of contempt was vacated, making it “as if the
finding did not exist.”
Father’s contentions are unfounded. It is not true that there is no evidence in the record
that father willfully withheld D.B. from visitation at least once. Mother testified at the hearing
on December 15, 2020, that father had refused to allow her to visit with D.B. and she did not see
D.B. for three months. Mother also testified that her relationship with D.B. during that
three-month period “was nonexistent.” Father did not object to those statements. According to
the prior custody arrangement, mother had scheduled visitation with D.B. every other weekend
and some Wednesday evenings, which did not occur for three months. Additionally, the custody
order required that, unless mother was to pick D.B. up from school, the parent relinquishing
custody of D.B. was responsible for delivering D.B. to the other party’s residence. Thus, the
circuit court properly inferred that father willfully withheld D.B. from visitation at least once.
See Bohon v. Manning, 210 Va. 173, 175 (1969) (noting that a fact could be “reasonably inferred
from the evidence”).
Thus, father’s contention that the court relied on extrajudicial information in making its
ruling is unfounded and the circuit court did not err.7
Assignment of Error (19)
Father argues that the “court abused its discretion in not making a determination relative
to Winter Break and Summer Vacation . . . as required by Va. Code § 20-124.2.” He contends
that the judge “failed to address an issue before the court” and such failure “is not harmless
error.”
7
We note that even if the circuit court had erred in considering evidence from the
January 24 hearing, it would be harmless, as father’s “propensity . . . to actively support [D.B.]’s
contact and relationship with [mother]” was but one of ten factors to be considered in
determining the best interests of the child as it relates to custody.
- 16 -
This assignment of error mischaracterizes the record. As mother correctly notes, the
court did not fail to make a ruling about visitation over winter break and summer vacation. The
court’s final order regarding the motion to modify custody and visitation states:
Except as provided in the stipulation of the parties as to visitation,
the Plaintiff Father is awarded visitation on alternating weekends
from Friday at 4:00 pm. to Sunday at 7:30 p.m. The Stipulation as
to Transportation and Visitation for Certain Holidays is
incorporated into this order and made a part thereof for purposes of
the agreed upon visitation.
From this language, it appears the court did consider holidays when crafting its order. The
visitation schedule set out in this part of the order is the schedule to apply for all days, including
holidays. The court, in not specifying unique terms for holidays, simply ordered the parties to
abide by the regular custody and visitation schedule. The circuit court did not fail to make a
determination regarding summer vacation and winter break, and as such, the circuit court did not
err.
Assignment of Error (17)
Father argues that the circuit court erred in awarding sole legal custody and primary
physical custody to mother when “[n]either [p]arty nor the [GAL] [r]equested [s]ame.” He
contends that “[w]hen a party sets forth a position contrary to their prior prayer for relief, that
party is bound by the new request,” and he cites Johnson v. Buzzard Island Shooting Club, Inc.,
232 Va. 32, 36 (1986), in support of his claim. Mother, in her “Amended Motion . . . originally
sought an award of sole legal and physical custody of [D.B.] with visitation to [father].” Mother
later requested in her opening argument, oral closing argument, and written closing argument
“that the court maintain joint legal custody and award ‘equally shared physical custody’ of
[D.B.].” Father argues that under Johnson, the court is bound to award only her second request
for relief.
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We first note that father’s characterization of the facts is not accurate. Mother’s original
motion asked for sole legal and physical custody of D.B., as well as “any other and further relief
this Court deems just and mete.” While her request during the hearing was for shared custody,
she never withdrew her pleading. Further, in her written closing argument, mother stated: “[t]o
the extent the Court is inclined to grant sole legal custody to one parent as a means of resolving
conflict with respect to co-parenting, then [mother] requests alternative relief in the form of sole
legal custody instead of shared legal custody.” This statement functioned as a request for
alternative relief in the form of sole legal custody, rather than shared custody, and the court could
therefore grant the relief she sought in that request.
Second, father misreads Johnson. Under Johnson, “a court in equity may properly grant
appropriate relief not specifically requested” as long as such relief is consistent “with the case
alleged by the bill or the relief specifically sought.” 232 Va. at 36. This Court has held that a
court may award relief to a party, even if that form of relief was not specifically requested by
that party. In D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 336 (2005), we found that the
circuit court properly gave one parent sole authority to choose the child’s pediatrician, noting
that “[a]lthough [one party] did not request the sole right to select [the child’s] pediatrician in her
pleadings, she nonetheless prayed that the court grant any other relief it deemed just.” This
Court found that “the trial court did not err in fashioning ‘an appropriate remedy that comport[s]
with the best interest of the children, even [though it was not] specifically requested by the
mother or father.’” Id. at 338 (alterations in original) (quoting Cloutier v. Queen, 35 Va. App.
413, 424 (2001)).
The same is true here. The circuit court may award a remedy not requested by either
party, as long as such relief is consistent with the case as it is alleged in the pleadings and
consistent with the relief mother originally sought. We hold that the relief awarded here—
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granting sole legal custody and primary physical custody to mother—is consistent with the case
as described in the pleadings; the pleadings illustrate the difficulty the parents have in
co-parenting D.B., and the remedy of sole custody addresses this difficulty. Additionally, relief
in the form of sole legal and primary physical custody to mother is not necessarily inconsistent
with relief in the form of joint legal custody/equal physical custody, as evidenced by mother’s
request in her written closing argument for either form of relief.
Assignment of Error (8)
Father argues that the circuit court “erred in considering Behrmann’s expert testimony
regarding parental alienation by [father,] when the record clearly established that [mother]
withdrew Behrmann’s expert opinion regarding same in her supplemental discovery response[.]”
Father cites mother’s opposition to his motion to quash Dr. Behrmann as an expert, filed
November 17, 2020. The motion states that “[b]ased upon new information that has been made
available, Mother and Dr. Behrmann have withdrawn the October 16, 2020 Supplemental Expert
Report of Dr. Behrmann and have amended Mother’s supplemental interrogatory response to
exclude any opinions regarding Mother’s claim of parental alienation against Father.” Father
contends that, because of the withdrawal of this expert opinion, he “did not prepare to address
parental alienation with Behrmann and did not depose him on this topic.”
Father misstates the facts. At trial, Dr. Behrmann did not provide expert testimony that
father engaged in parental alienation against mother. Mother stated to the court that
Dr. Behrmann was “not testifying to actual parental alienation.” Dr. Behrmann testified that
“parental alienation” has a specific definition and clarified that parental alienation is different from
“alienating behaviors that someone can conduct that don’t necessarily mean the child is
alienated.” In fact, Dr. Behrmann testified that there is no parental alienation in this case
- 19 -
because D.B. “is observably having a positive relationship with both parents at different times.
You can’t have alienation if the child isn’t alienated.”
Instead, Dr. Behrmann merely testified that while reviewing the multiple videos father
had filmed of him interacting with D.B., he noticed “a lot of allegations the father was making on
the videos about the mother.” Dr. Behrmann’s concern was “that it demonstrated . . . alienating
behaviors by [f]ather repetitively to his son against [m]other[.]”
Father cannot claim that he was not on notice that Dr. Behrmann would discuss the
negative effect of father’s behavior, demonstrated in the multiple videos, on D.B.’s relationship
with mother. Although mother withdrew her October 16, 2020 supplemental expert report of
Dr. Behrmann and amended her supplemental interrogatory response to exclude any opinions
regarding her claim of parental alienation against father, mother did not withdraw
Dr. Behrmann’s initial expert report dated August 25, 2019. In that report, Dr. Behrmann notes
his concerns about father “negatively influencing [D.B.] regarding his mother,” based on
Dr. Behrmann’s observation of the videos. Dr. Behrmann specifically notes that on two videos,
father “negativizes mother” and is “being quite negative about mother.” Referring to father’s
behaviors as “alienating behaviors” at trial does not change the fact that father was on notice that
Dr. Behrmann would testify about behaviors father undertook, specifically in the multiple
videos, that negatively influenced D.B.’s relationship with mother. Moreover, the circuit court
also saw the videos and could draw its own conclusions about father’s behavior. Accordingly,
we hold that the circuit court did not abuse its discretion in allowing Dr. Behrmann to opine on
“alienating behaviors.”
Assignment of Error (18)
Father argues that the circuit court erred in denying his motion to quash Dr. Behrmann as
an expert witness. He contends that, under the pretrial scheduling order entered on August 4,
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2020, mother had to designate her experts by September 16, 2020, yet “[t]he first time . . .
[mother] proposed that Behrmann would be testifying regarding parental alienation against
[father] was on October 1[6], 2020.”
Father’s assertions misstate the facts. Mother filed an expert designation dated May 16,
2019, entitled “Defendant’s Supplemental Answers to Interrogatories” in which she designated
Dr. Behrmann as an expert witness. Although she did not disclose that Dr. Behrmann would
testify “regarding parental alienation against [father]” until October 16, 2020, as noted in our
review of assignment of error (8), supra, Dr. Behrmann did not ultimately testify that father
engaged in parental alienation against mother. In fact, as father notes in his argument regarding
assignment of error (8), mother later withdrew Dr. Behrmann’s supplemental report dated
October 16, 2020. Father has not shown how he was unfairly surprised or prejudiced by
receiving this supplemental report on October 16, 2020. Thus, we hold that the circuit court did
not abuse its discretion in denying father’s motion to quash Dr. Behrmann as an expert witness.
Assignments of Error (5) & (6)
Father combines assignments of error (5) and (6) and argues that the circuit court “abused
its discretion in not allowing [father] to put on his complete case,” “allowing [mother] to put
forth evidence for 1.5 days of the 2 days of trial,” and “prohibiting [father’s] expert witness
Dr. Hoffmann from testifying in [c]ourt and requiring [father’s] counsel to proffer the
testimony.”
Father emphasizes the time allotted to each party, as well as the circuit court’s directive
that mother and father present both oral and written closing arguments, calling it “unnecessary.”
Father argues that instead, “the court should have allowed for Dr. Hoffmann to give her testimony
and require only written closing arguments.” He states that in the alternative, the court should have
continued the trial or continued to hear evidence.
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This Court affords a high level of deference to a trial court’s decision on matters of trial
management. See Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g en banc,
45 Va. App. 811 (2005).8 Although “a litigant’s right to a fair trial must not be made subordinate to
the [court’s] efforts to control its docket,” Peterson v. Castano, 260 Va. 299, 304 (2000), trial courts
have “significant latitude in managing their dockets,” deHaan v. deHaan, 54 Va. App. 428, 446
(2009). “[T]he time allowed counsel for argument is within the sound discretion of the court, the
exercise of which will not be interfered with by an appellate court in the absence of a clear showing
of prejudice to the substantial rights of the complaining party.” Brown v. Peters, 202 Va. 382, 391
(1961). Accordingly, because the circuit court’s limitation of the time allotted for trial resulted in
father being unable to introduce witness testimony, we must determine whether the exclusion of
such testimony prejudiced father.
“In Virginia, when testimony is rejected before it is delivered, an appellate court has no
basis for adjudication unless the record reflects a proper proffer.” Massey v. Commonwealth, 67
Va. App. 108, 132 (2016) (quoting Ray v. Commonwealth, 55 Va. App. 647, 649 (2010)); see
Brittain v. Brittain, No. 1944-10-4, slip op. at 5 (Va. Ct. App. Dec. 20, 2011) (applying proffer
analysis to alleged exclusion of child’s testimony in custody modification proceeding). The proffer
must “[allow] us to examine both the ‘admissibility of the proposed testimony,’ and whether, even if
admissible, its exclusion ‘prejudiced’ the proffering party.” Massey, 67 Va. App. at 132 (quoting
Molina v. Commonwealth, 47 Va. App. 338, 368 (2006)).
When a trial court commits a non-constitutional error, a reviewing court will look at
whether the record plainly discloses “that the parties have had a fair trial on the merits and
substantial justice has been reached.” Code § 8.01-678; Clay v. Commonwealth, 262 Va. 253,
8
See also Parsons v. Commonwealth, 154 Va. 832, 852 (1930) (“Cases should not be
reversed merely because the judge was impatient.”).
- 22 -
259 (2001); see Virginia Bd. of Med. v. Zackrison, 67 Va. App. 461, 484-85 (2017) (applying
non-constitutional harmless error analysis in civil case where expert testimony was excluded).
As part of this harmless error analysis, this Court must look at whether the alleged error
substantially influenced the fact finder. Clay, 262 Va. at 259. If this Court cannot conclude
whether the error substantially swayed the fact finder’s determination, the judgment will be
reversed. Id. at 260. Yet the judgment will stand if the error had no or only slight influence. Id.
Under Virginia Rule of Evidence 2:702(b), “[expert t]estimony that is speculative, or
which opines on the credibility of another witness, is not admissible.”
Here, the circuit court correctly noted that Dr. Hoffmann could have testified had father
managed his time differently, stating, “[i]f the parties use up [their time] and don’t pay attention to
the clock, there’s not much the court can do for that.” The court observed that mother’s case took
more time because of extensive questioning of her witnesses by father and said that “it really is not
just one side of the case getting the opportunity to fully present their case and the other not. There
was just a different set of priorities when it came to time management. And that’s—that’s
something that counsel has to govern themselves accordingly on.”
Father suffered no prejudice as a result of the circuit court prohibiting Dr. Hoffmann from
testifying because, out of all of the evidence father sought to introduce, (1) most of it would have
been inadmissible and (2) the admissible portions of the testimony would not have changed the
outcome.
First, the majority of Dr. Hoffmann’s proposed testimony opines on the integrity of
Dr. Behrmann’s testimony, which is inadmissible under the Virginia Rules of Evidence. According
to father’s proffer, Dr. Hoffmann would have testified that Dr. Behrmann omitted information from
his report, “cherrypicked” findings, and did not follow proper evaluation protocol. Because this
testimony amounted to an inadmissible opinion, appellant cannot claim prejudice for its rejection
- 23 -
based on the court’s determination that hearing the testimony would create undue delay. Other parts
of Dr. Hoffmann’s proposed testimony seem to seek to rebut mother’s purported claim that father
engaged in parental alienation against mother. As detailed in our discussion of assignment of error
(8), at trial, mother did not make a claim of parental alienation against father. Thus, Dr. Hoffmann’s
testimony seeking to rebut a claim of parental alienation would have been irrelevant and thus,
inadmissible.
Second, assuming, without deciding, the admissibility of Dr. Hoffmann’s proposed
testimony that (1) D.B. really “believed that was there was a threat made to him . . . and by his
mother” and (2) she “believes D.B. would not benefit from reunification or conjoint therapy at this
time,” we rule that excluding such testimony did not prejudice father. Whether D.B. believes his
mother threatened him and whether D.B. and his mother would benefit from reunification therapy
does not change the fact that, as the trial court found, mother is a fit parent to care for D.B. This
finding is supported by evidence in the record, discussed in our review of assignments of error (14)
through (16), infra. The exclusion of the rest of Dr. Hoffmann’s proposed testimony that attempts
to rebut mother’s supposed claim that father’s behavior caused a “rupture in the relationship
between [D.B.] and mother” also does not prejudice father. Mother’s counter proffer notes that
Dr. Hoffmann “did not do any testing, like Dr. Ling and Dr. Behrmann. No psychological testing,
no cognitive testing, no academic testing, no emotional testing. All she did was meet with [D.B.]
once, meet with [father] once, meet with [father] and [father’s counsel] once, and then went over to
[father’s] household once.” Mother further proffered that Dr. Hoffmann did not do any evaluations
of either parent or D.B. and did not look at as large amount of data as Dr. Ling and Dr. Behrmann
did. In reviewing the proffers from both sides, we conclude that admission of this evidence would
not have changed the outcome, when weighed against the large amount of evidence in favor of
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granting sole legal and primary physical custody to mother, discussed in our review of assignments
of error (14) through (16), infra.
Accordingly, the circuit court did not abuse its discretion in managing its docket in this
manner and preventing Dr. Hoffmann from testifying.
Assignment of Error (4)
Father contends that the circuit court “[a]bused its [d]iscretion in [o]rdering [father] to
pay all of the GAL Fees, without a [h]earing and [p]resentation of [e]vidence.” He argues that
“[j]ustice and equity require []a hearing, including the taking of evidence and testimony, on the
allocation of GAL fees[.]” He contends that “[t]he error is not harmless as the court heard no
evidence on the financial situation of each party” and that “[t]he court provides no basis for the
full award against [father].”
Addressing first father’s contention that a hearing on the allocation of GAL fees is
required, we note that father cites no authority in support of his argument. Father does list a
string of unpublished cases, but none of these cases supports his assertion that the circuit court
had to hold a hearing before apportioning GAL fees to the parties. In fact, in one of the
unpublished cases father cites, Evans v. Evans, No. 1936-09-3, slip op. at 2 (Va. Ct. App. June
29, 2010), the parties merely submitted written arguments to the circuit court, after which the
circuit court issued a letter opinion. In that letter opinion, the circuit court wrote that “[e]ach of
the parties had an opportunity to brief these issues [including the GAL fees] and I have reviewed
them in arriving at my decisions herein.” Id. at 5. This Court affirmed the circuit court on
appeal.
Father also cites Sims-Bernard v. Bernard, No. 0918-17-2 (Va. Ct. App. Jan. 23, 2018),
but that case also fails to bolster his argument. The appellant in Sims-Bernard argued that “the
- 25 -
court erred by failing to hold a hearing before awarding the [GAL] fees.” Id. at 9. This Court
declined to consider that argument, stating:
With regard to mother’s contention that she was denied a hearing
on the GAL fees, mother argues that the court’s consideration of
the parties’ motions and relevant memoranda before awarding fees
was insufficient. However, mother fails to fully develop this
argument in her brief, or provide adequate authority to support it.
Id. at 9 n.5.
Likewise, we decline to consider father’s contention that the circuit court had to hold a
hearing before it awarded GAL fees. “Statements unsupported by argument, authority, or
citations to the record do not merit appellate consideration.” Buchanan v. Buchanan, 14
Va. App. 53, 56 (1992); see also Rule 5A:20(e) (requiring that an appellant cite relevant
authority in support of an argument presented on appeal). Because father cites no authority to
support his argument that a hearing was required before the circuit court could allocate GAL
fees, we will not consider that argument on appeal.
We next turn to father’s argument that the circuit court abused its discretion in ordering
him to pay all of the GAL costs and fees. “The decision to apportion guardian fees between both
parties or to one party alone . . . involves a matter within the [trial court]’s discretion.” Kane v.
Szymczak, 41 Va. App. 365, 375 (2003) (upholding circuit court’s decision to assess all GAL
fees to one party); see also Evans, No. 1936-09-3, slip op. at 6 (upholding circuit court’s ruling
that a party be responsible for eighty percent of the GAL’s bill where the party “created the
majority of this scenario and he, therefore, should be the one to bear the burden of the costs for
that”). “Because each case presents its own unique set of equities, principles of appellate review
steer clear of inflexible rules and focus instead on ‘reasonableness under all the circumstances.’”
Kane, 41 Va. App. at 375 (quoting Joynes v. Payne, 36 Va. App. 401, 429 (2001)).
The issue before us is not whether we find that the equities favor
one or the other party, but whether the [circuit court] abused [its]
- 26 -
discretion in finding that the equities favored the imposition of the
guardian’s fee on [one party]. While the [trial court] could have
divided the guardian’s fees between the parties, . . . he also had the
discretion not to.
Id. at 376 (internal citation omitted).
Here, the court found, in its order regarding the parties’ motions to modify custody and
visitation, that “[t]he chief architect of the hostility . . . is the father. The father’s litigation
pursuits are clearly directed against the mother . . . as some form of retaliation or punishment.”
In contrast, the court observed that “mother’s litigation pursuits are directed toward the safety
and well-being of [D.B.].”
After father and the GAL filed their joint motion asking the court to allocate GAL fees,
mother filed a response contending that father “should bear sole responsibility for [GAL] fees in
this case.” Mother cited the circuit court’s observations that father “engaged in aggressive
‘scorched earth’ litigation tactics” and “acted maliciously ‘with a goal of “winning” a fight
against the mother rather than serving the interests of the child.’” Mother also noted that the
GAL was necessary in the case mainly “due to father’s aggressive conduct.” She asked that the
GAL fees be assigned to father “for his needless and hostile litigation tactics in this case.”
Mother also demonstrated that father was in the better financial position and more able to
fully cover the GAL fees. Mother noted that father displayed his high earning capacity by hiring
counsel and multiple litigation experts, while mother had pro bono counsel. She also filed a
DC-333 financial statement form, in accordance with the Virginia Guidelines for Payment of
Guardians ad Litem for Children. The circuit court had ample opportunity to assess the equities
and decide who should bear the cost of the GAL. The Guidelines call for the court to “consider
the total amount for which the parents . . . will be responsible and apportion this amount, as
appropriate.”
- 27 -
Under the circumstances of this case, we cannot say that the court abused its discretion in
requiring father to pay all GAL fees.
Assignments of Error (7), (1) & (2)
Assignments of error (7), (1), and (2) relate to the court’s ruling prohibiting D.B. from
testifying.
In assignment of error (7), father contends that the circuit court “erred in using and
considering evidence from [D.B.’s] testimony at the rule to show cause hearing at the
modification hearing.” Father states that “the [circuit] court’s basis for prohibiting [D.B.] from
testifying was based on the court’s knowledge from another case.” He cites as evidence for this
contention the court’s statement, in ruling that it would not permit D.B. to testify, that it was
“familiar with the file in this case, the background, its ten-year history roughly and [had] already
had [D.B.] testify . . . previously.” Father combines assignments of error (1) and (2) in his brief
and contends that “[t]he [circuit] court abused its discretion in prohibiting [D.B.] from
testifying.” Father asserts that “[t]he [circuit] court’s failure to determine [D.B.]’s competency
and consider [D.B.]’s preference is reversible error” because a child’s preference is one of the
custody-determination factors under Code § 20-124.3. He argues this “error is not harmless
given the lack of evidence of preference at trial.”
This Court “reviews a trial court’s ruling admitting or excluding evidence for abuse of
discretion.” Payne v. Commonwealth, 292 Va. 855, 866 (2016). “In Virginia, when testimony is
rejected before it is delivered, an appellate court has no basis for adjudication unless the record
reflects a proper proffer.” Massey, 67 Va. App. at 132 (quoting Ray, 55 Va. App. at 649). A party
must proffer the “‘testimony he expected to elicit,’ rather than merely his theory of the case.”
Tynes v. Commonwealth, 49 Va. App. 17, 21 (2006) (quoting Clagett v. Commonwealth, 252 Va.
- 28 -
79, 95 (1996)). “The failure to proffer the expected testimony is fatal to [the] claim on appeal.”
Massey, 67 Va. App. at 132 (quoting Molina, 47 Va. App. at 367-68).
Assuming, without deciding, that all assignments of error were preserved at the trial level
for appellate review, we rule that because father failed to proffer D.B.’s expected testimony to the
circuit court, his argument that the testimony was improperly excluded is barred from appellate
consideration.
To the extent that father argues the circuit court erred in failing to consider D.B.’s
preference, introduced into evidence through other sources,9 this contention will be addressed in
our discussion of assignments of error (14) through (16), where we review the circuit court’s
weighing of the statutory factors for custody determinations.
Assignments of Error (14), (15) & (16); part of Assignment of Error (1)
In assignment of error (14), father argues that “[t]he evidence and record did not support
the court’s finding that ‘father’s actions have been contrived with a goal of “winning” a fight
against the mother rather than serving the interests of the child.’” He contends that “[f]ailure to
consider the evidence as a whole, regarding [father]’s actions, is an abuse of discretion” and thus,
“[t]he ruling must be reversed.”
Father combines assignments of error (15) and (16) and contends that “[t]he [circuit]
court erred in not considering any evidence and/or argument provided by [father].” Father
argues that the circuit court should have, but did not consider evidence of: (1) mother’s
“inability to communicate or maintain a civil relationship with [father]”; (2) mother’s “constantly
contacting [father] for unnecessary parental things”; (3) mother’s “making medical/mental health
decisions relative to [D.B.] without first consulting with [father]”; (4) “[t]he breakdown of the
9
In his brief, father contends that “[b]ased on the report of the GAL and the proffer of
Dr. Hoffmann, [D.B.]’s preference was contrary to the court’s final determination[.]”
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parent-child relationship between [mother] and [D.B.]”; (5) “[mother]’s false accusations and
encouragement of [D.B.] to make false accusations against [stepmother]”; (6) “[t]he good
father-son relationship between [father] and [D.B.]”; (7) “[father]’s ability to assess [D.B.’s]
educational needs”; (8) the fact that “[father] has been [D.B.’s] primary physical custodian since
June 6, 2014 without substantial issue over 8 years”; and (9) “D.B.’s preference.”
Father also combines assignments of error (1) and (15) and argues that the court’s failure
to consider D.B.’s preference was reversible error, as the court must consider all factors under
Code § 20-124.3 in determining custody.
“[W]e presume that the trial judge thoroughly weighed all the evidence and decreed
custody as he believed would be in the best interest of the child[].” Brown v. Brown, 218 Va.
196, 200 (1977). Further:
Although a trial court may fail to specify and recite in its order all
the possible reasons and adequate bases for its determination,
where it is obvious from review of the record that the trial court’s
determination was made with the child’s welfare as paramount,
and it is clear that the decision is in the child’s best interests, the
determination is not without substantial, competent, and credible
evidence to support it.
Farley v. Farley, 9 Va. App. 326, 329 (1990).
“We review a court’s decision regarding child custody for an abuse of discretion.”
Armstrong v. Armstrong, 71 Va. App. 97, 102 (2019). “Under this standard, the Court views the
evidence in the light most favorable to the prevailing party and does not ‘retry the facts or
substitute [its] view of the facts for [that] of the trial court.’” Id. (alterations in original) (quoting
Congdon v. Congdon, 40 Va. App. 255, 266 (2003)). “If ‘evidence in the record supports the
trial court’s ruling and the trial court has not abused its discretion, its ruling must be affirmed on
appeal.’” Id. (quoting Brown v. Brown, 30 Va. App. 532, 538 (1999)). “In issues of child
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custody, ‘the court’s paramount concern is always the best interests of the child.’” Id. at 103
(quoting Vissicchio v. Vissicchio, 27 Va. App. 240, 246 (1998)).
The Supreme Court [of Virginia] has identified three principal
ways a circuit court abuses its discretion: [1] when a relevant
factor that should have been given significant weight is not
considered; [2] when an irrelevant or improper factor is considered
and given significant weight; and [3] when all proper factors, and
no improper ones, are considered, but the court, in weighing those
factors, commits a clear error of judgment.
Id. at 104 (quoting Lambert v. Sea Oats Condo. Ass’n, Inc., 293 Va. 245, 253 (2017)).
Code § 20-124.3 requires that:
In determining best interests of a child for purposes of determining
custody or visitation arrangements, including any pendente lite
orders pursuant to § 20-103, the court shall consider the following:
1. The age and physical and mental condition of the child, giving
due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child,
giving due consideration to the positive involvement with the
child’s life, the ability to accurately assess and meet the emotional,
intellectual, and physical needs of the child;
4. The needs of the child, giving due consideration to other
important relationships of the child, including but not limited to
siblings, peers, and extended family members;
5. The role that each parent has played and will play in the future,
in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s
contact and relationship with the other parent, including whether a
parent has unreasonably denied the other parent access to or
visitation with the child;
7. The relative willingness and demonstrated ability of each parent
to maintain a close and continuing relationship with the child, and
the ability of each parent to cooperate in and resolve disputes
regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the
child to be of reasonable intelligence, understanding, age, and
experience to express such a preference;
9. Any history of (i) family abuse as that term is defined in
§ 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of
violence, force, or threat as defined in § 19.2-152.7:1 that occurred
no earlier than 10 years prior to the date a petition is filed. If the
court finds such a history or act, the court may disregard the
factors in subdivision 6; and
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10. Such other factors as the court deems necessary and proper to
the determination.
“Failure to consider all the factors set out in Code § 20-124.3 is reversible error.” Armstrong, 71
Va. App. at 104. The court, however, need not “quantify or elaborate exactly what weight or
consideration it has given to each of the statutory factors.” Id. (quoting Sargent v. Sargent, 20
Va. App. 694, 702 (1995)). “Where the record contains credible evidence in support of the
findings made by [the] court, we may not retry the facts or substitute our view of the facts for
[that] of the trial court.” Id. at 105 (alterations in original) (quoting Bedell v. Price, 70 Va. App.
497, 504 (2019)).
Regarding assignment of error (1), father asserts that the circuit court erred in failing to
consider D.B.’s preference, introduced into the record through the GAL’s recommendation. The
court, however, only need consider the child’s preference “if the court deems the child to be of
reasonable intelligence, understanding, age, and experience to express such a preference.” Code
§ 20-124.3(8). In the court’s final order, it enumerated and addressed all ten factors under the
statute. Regarding the child’s preference, the court found that “[t]here is insufficient evidence on
this factor for the court to make a finding.” Considering the court’s final order in its totality, it
appears that the court declined to accord weight to this factor because it found D.B. not to be of
reasonable understanding to express such a preference—elsewhere in the order, the court noted
that “Dr. Ling reported and testified that [D.B.] was beginning a pattern of dishonesty and
manipulation as a coping mechanism even going so far as to allege misconduct of a parent as a
way of retaliating against discipline.” The court did not abuse its discretion in making those
findings, as they were supported by evidence in the record. Further, the trial court’s detailed,
thirteen-page final order displayed the court’s thorough consideration of the enumerated factors.
See Rainey v. Rainey, 74 Va. App. 359, 380 (2022) (finding that the court’s fourteen-page final
order “quite thoroughly addressed the factors set out in Code § 20-124.3”).
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Regarding assignments of error (14), (15), and (16), father does not contend that the
circuit court failed to weigh any of the statutory factors, gave significant weight to an
improper/irrelevant factor, or committed a clear error of judgment in weighing the factors.
Rather, father argues that the circuit court erred for not giving more weight to evidence that he
presented. Father, however, fails to demonstrate that the court made a clear error in judgment.
Further, the court’s order makes it clear that it did “consider[] the relevant evidence offered by
the parties in the trial of this matter as to each factor.” It “weighed the value and credibility of
such evidence and arrived at certain conclusions that are compelled by the weight of such
evidence.” The court also noted that both parties submitted post-hearing written closing
arguments, “and the court has reviewed and considered the same.”
After doing so, the circuit court specifically ruled that it was in D.B.’s best interest to
grant sole legal custody and primary physical custody to mother after considering all of the
factors under Code § 20-124.3. “Because the record contains evidence in support of the court’s
findings, we are precluded from retrying the facts or reweighing the factors.” Armstrong, 71
Va. App. at 105.
III. CONCLUSION
For the reasons set forth above, we rule that the circuit court did not err in (1) awarding
sole legal custody and primary physical custody of D.B. to mother and (2) entering, without a
hearing, an order requiring father to pay all of the GAL fees. Additionally, all requests for
attorney fees associated with this appeal are denied.
Affirmed.
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