Hilario Mercado, Jr. v. Hary L. Aymond-Gonzales,aka ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
HILARIO MERCADO, JR.
MEMORANDUM OPINION *
v. Record No. 2588-97-4 PER CURIAM
APRIL 28, 1998
MARY L. AYMOND-GONZALES,
F/K/A MARY L. MERCADO
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
(Hilario Mercado, Jr., pro se, on briefs).
(Paula W. Rank; Byrd, Mische, Bevis, Bowen,
Joseph & O'Connor, P.C., on brief), for
appellee.
Hilario Mercado, Jr., appeals the decision of the circuit
court awarding custody of the parties' minor child to Mary L.
Aymond-Gonzales, the child's mother, and ordering father to pay
child support and attorney's fees. Father states his issues on
appeal as follows: (1) did the circuit court err when it allowed
mother to present her case before father, the complainant,
presented his case; (2) did the circuit court abuse its
discretion when it openly communicated a predisposition of
father's case during the fact finding hearings; and (3) was the
circuit court's predisposition prejudicial to father and
detrimental to ongoing settlement negotiations. In her brief,
mother raises two questions: (1) whether father properly made
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and preserved his objections and exceptions to the rulings of the
trial court; and (2) whether the matter should be remanded to the
trial court for an award of appellate attorney's fees. 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. We grant
mother's request for appellate attorney's fees and award her $300
for attorney's fees.
The record includes a transcript of the May 27, 1997 hearing
and the exhibits. Father appeared pro se at the hearing. The
court entered the final order on September 30, 1997. Father
endorsed the decree as follows:
Seen and objected for: proceedings that did
not afford me due process, and for those
items enumerated [sic] in my letter to Ms.
Rank, Defendant counsel, of September 25,
1997, items "a." through "i," attached
(served by fax September 25, 1997).
The letter to which father referred was attached to the court's
order, and described "areas of disagreement" with a letter sent
to father by wife's counsel.
Father's letter request to the clerk of the circuit court,
seeking an extension of time within which to file a written
statement of facts, was denied by the trial court. See Rule
5A:3(b). Father indicated to this Court that the record on
appeal was sufficient for a determination of the questions
presented on the merits. We agree. The record includes the
transcript of the hearing.
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PRESENTATION OF CASE
Father contends that the trial judge committed reversible
error when it allowed mother to present her case before he
presented his at the May 27, 1997 hearing. A review of the
hearing transcript demonstrates that although mother's counsel
presented an opening statement first, father was allowed to
present his evidence first. In addition, father failed to object
to the presentation of the opening statement by mother. The
Court of Appeals will not consider an argument on appeal that was
not presented to the trial court. See Jacques v. Commonwealth,
12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991). Rule 5A:18
bars our consideration of this question on appeal. Moreover, the
record does not reflect any reason to invoke the good cause or
ends of justice exceptions to Rule 5A:18. The trial judge has
discretion to determine the order of presentation of evidence in
a case. Floyd v. Commonwealth, 219 Va. 575, 582, 249 S.E.2d 171,
175 (1978). The record does not indicate an abuse of discretion.
PREDISPOSITION COMMENTS BY TRIAL JUDGE
Father also alleges that the trial judge's comments during
the hearing demonstrated a "predisposition" concerning his case.
For example, father alleges that the trial judge denied father's
attempt to call mother's counsel as a witness. However, the
trial judge stated the following:
If it gets to a point where there's an honest
dispute as to what was said, and [wife's
counsel] then becomes a material witness,
then I'm going to let you call her because it
would be improper and unfair to prevent you
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from doing so. But I'm not going to let you
start off by taking her out of this case.
Father did not object.
Father also called his former counsel to testify concerning
negotiations. In order to protect father's rights, the trial
judge noted the following:
[W]hat [father's former counsel] testified to
on May 19th outside of your presence, because
you decided not to be there at noon because
you thought the case wasn't going to be heard
until some time after lunch, I am not going
to consider today because I want to make sure
that you have an opportunity to have
presented in front of you the evidence that
I'm going to consider.
Father also points to a clarifying question asked by the judge
concerning the phrase "honest agreement" used by father.
Father did not object to these statements when they were
made or otherwise preserve any objection to the trial judge's
handling of the case. Father did not move to recuse the trial
judge on the ground that he was biased. Moreover, upon our
review of the record, we find no indication that the trial judge
prejudged father's case. On the contrary, the hearing transcript
demonstrates that the trial judge guided father through the
hearing in an effort to resolve the outstanding factual question
regarding the existence of an agreement between the parties. The
record does not reflect any error.
EFFECT ON SETTLEMENT NEGOTIATIONS
Father's last contention is that the trial judge's
prejudicial comments negatively affected wife's willingness to
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settle. As noted above, we find no indication of bias or
prejudice in the trial judge's comments. Moreover, it is
axiomatic that a party's willingness to settle varies based upon
the trial court's assessment of the merits. Settlement
negotiations are fluid, not static. The record does not reflect
any error.
ATTORNEY'S FEES
Mother seeks an award of appellate attorney's fees. Under
the circumstances of this case, we award the mother $300 for
appellate attorney's fees.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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