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. 
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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.