COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff , Judges Alston and Russell

MICHAEL TIMMONS MEMORANDUM OPINION * BY v. Record No . 1158-17-4 CHIEF J UDGE GLEN A. HUFF FEBRUARY 20, 2018 LILIAN MUTISO

FROM THE CIRCUIT C OURT OF LOUDOUN COUNTY Jeanette A. Irby, Judge (Pamela L. Cave, on briefs), for appellant. Appellant submit ting on briefs. (Ryan M. Schmalzle; Beckman Schmalzle Georgelas & Ross, PLC, on brief), for appellee. Appellee submitting on brief.

Appellant Michael Timmons (“father”) challenges the order of t he Circuit Court of Loudoun County (“trial court”) fi nding him in contempt of court because he denied his son’s visitation with the child’s mother, Lilian Mutiso (“mother”), i n violation of the trial court’s custody and visitation order. On appeal, father contends that the trial court erred by (1) refusing to admit testimony by and a letter from the child’s therapist c oncerning his recommendations for the child’s needs, and (2) findi ng father in contempt when cont rary authority and evidence existed. For the following reasons , this Court affirms the tri al court’s contempt finding.
I. BACKGROUND “On appeal, ‘[w]e view the evi dence in the “light most favorab le” to the prevailing party in the circuit court and grant t o that party the benefit of “al l reasonable inferences fairly deducible therefrom.”’” T.S.G. v. B.A.S., 52 Va. App. 583, 585 , 665 S.E.2d 854, 855 (2008)

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - (quoting Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767 (2005)). So viewed, the evidence is as follows. Mother and father were never married but have a minor child to gether. Pursuant to a custody and visitation order of May 25, 2014, father had primar y physical custody of the child while mother had visitation on altern ate weeks from Thursday ev ening after school through Monday morning when the child returned to school. The arrangem ent also provided that father and mother would evenly divide win ter breaks, with father havin g the first half of the break in even years and mother having t he first half in odd years. For the winter 2016–17 break, father was scheduled to have the first half and mother would have visi tation with the child beginning on December 28, the midpoint of the break. Mother exhibited some confusi on as to the correct exchange dat e. In an email to father on December 12, 2016, she indicated her belief that the exchang e was set for December 26. Father did not reply to the ema il. On the actual exchange date , December 28, father arrived to the exchange location at the us ual time of 8:00 a.m. He waited there for forty-five minutes for mother to appear, and when she did not, he sent an email to the parties’ parental coordinator— but not to mother—indicating th at she had not appeared. Father also suggested in the email that he could attend an exchange on D ecember 29, but that it would h ave to be at 6:45 a.m. so that he could take the bus to work. The pa rental coordinator advised f ather to forward that email to mother, and he did so later on December 28. Mother did not attend the exchange at 6:45 a.m. on December 29 because it was still dark at that time and she “just didn’ t want to be around [father] in a dark area where there are no witnesses.” Instead, she reque sted that father bring the child to her house that day. Father declined to do so, believing the r equest to be inappropriate. Father ultimately decided to work from home on December 29, but he di d not advise mother of this fact.- 3 - On the afternoon of December 29, father received a letter from the child’s therapist and counselor, Joaquin Perez, in whichPerez recommended that mothe r have only supervised visitation with the child. Per ez is a licensed therapist, but he is not a forensi c psychologist and has never been appointed to perfor m a court-ordered custody eva luation. Although P erez’s letter recommended that the parties “[ b]egin supervised visitation as soon as possible for [the child’s] visits with his mother,” it did not explicitly counsel father t o violate the court-ordered visitation scheme. Mother contacted the police later on December 29 in an effort to facilitate the exchange. When a sheriff’s deputy arrived a t father’s home, father advise d the deputy that he was not willing to allow mother to have the child at that time. He sho wed the deputy Perez’s letter, which was “one of the bigger drivin g factors” in his decision n ot to facilitate an exchange. Father’s opinion was that he shoul d not have to participate in an exchange where mother had already missed two exchange opport unities, especially “in light of the letter.” Mother ultimately did not have visitation with the c hild at any point during the winter 2016–17 break. Mother was next entitled t o visitation from the afternoon of T hursday, January 5 through the morning of Monday, January 9, 2017. Father refused mother visitation on this occasion as well, again citing Perez ’s letter and recommendation as his rat ionale. Likewise, on mother’s scheduled visitation period of January 19 to January 23, 2017, the child was not at the school for mother to pick up. Mother did not have visitation with the chi ld again until March 16, 2017. The trial court held a heari ng on various visitation matters o n June 30, 2017, including a rule to show cause why father s hould not be held in contempt fo r violating the May 25, 2014 custody and visitation order. Duri ng his case-in-chief, father called Perez and sought to have him qualified as an expert. After voir dire , the trial court qualified P erez as “a therapist and counselor with respect to child ren.” Mother’s counsel objected when counsel for father sought- 4 - to have Perez testify as to his recommendation that mother have only supervised vis itation of the child. The trial court sustai ned the objection and found Perez ’s proffered testimony to be an opinion related to custody, whi ch was beyond the scope of his q ualification. The trial court also refused to admit Perez’s Decembe r 29, 2016 letter to father int o evidence because it constituted hearsay and included the alrea dy-precluded opinion related to c ustody. Father sought to rely on Perez’s recommendation for supervis ed visitation as a justifica tion for denying visitation to mother, and testified that Per ez had advised him that, as the c hild’s legal guardian, it was appropriate to violate the c ourt’s custody and visitation order . Perez, however, testified that he did not counsel violation of a c ourt order; instead, he told fa ther that he “can’t tell you what to do” and simply “cited [his] concerns.” After hearing the evidence, the trial court found that father willfully violated the May 25, 2014 custody and visitation order bydenying mother visitation during the winter break and during the January visitati ons. This appeal followed.
II. STANDARD OF REVIEW “Decisions regarding the admissi bility of evide nce ‘lie withinthe trial court’s sound discretion and will not be disturbed on appeal absent an abuse of discretion.’” Reaves v. Tucker, 67 Va. App. 719, 736, 800 S.E.2d 188, 197 (2017) (quoting Miche ls v. Commonwealth, 47 Va. App. 461, 465, 624 S.E.2d 675, 678 (2006)). Likewise, “an adjudication of contempt will be reversed ‘only if we find that [the court] abused its discretio n.’” Estate of Hackler v. Hackler, 44 Va. App. 51, 64, 602 S.E.2d 426, 432 (2004) (quoting Barnhill v . Brooks, 15 Va. App. 696, 704, 427 S.E.2d 209, 215 (1993)). Abuses of discretion only occur wh en “‘reasonable jurists coul d not differ’ as to the proper decision.” Reston Hos p. Ctr., LLC v. Remley, 63 Va. App . 755, 764, 763 S.E.2d 238, 243 (2014). “This highly deferentia l standard of review ‘neces sarily implies that, for some- 5 - decisions, conscientious jurists c ould reach diffe rent conclusi ons based on exactly the same facts—yet still remain entirel y reasonable.’” Id. (quoting Ham ad v. Hamad, 61 Va. App. 593, 607, 739 S.E.2d 232, 239 (2013)). This Court’s deference to th e trial court’s discretionary decisions is “based on our ‘venera ble belief that the judge clo sest to the contest is the judge best able to discern where the equi ties lie.’” Id. at 765, 763 S.E. 2d at 244 (quoting Hamad, 61 Va. App. at 607, 739 S.E.2d at 239).
III. ANALYSIS Father raises five assignment s of error on appeal, which fall into two categories: challenges to the trial court’s rulings excluding evidence of P erez’s recommendation that mother have only supervised visitation, a nd challenges to the trial co urt’s decision to hold him in contempt. A. Admissibility of Per ez’s Testimony and Letter In his first assignment of error , father contends that the tri al court erred in refusing “to consider the letter and/or Mr. Perez’s recommendations made reg arding the parties’ minor son . . . because Mr. Perez is not, specifically, a child custody e valuator.” His second assignment alleges an abuse of the trial c ourt’s discretion in its refusal “to allow Mr. Perez to testify thoroughly with regard to the mi nor child’s therapy, his therap eutic needs, and his best interests related thereto” pursuant to Code § 20-124.3. His fifth assign ment argues that by refusing to admit Perez’s letter, the trial court abused its discretion and “limited [father’s] ability to prove his justification for the acti ons he undertook” related to visi tation. Because the trial court appropriately limited its consid eration of Perez’ s letter and t estimony to the scope of his expert qualification, this Court holds that the trial court’s evidenti ary rulings were not abuses of discretion.- 6 - Virginia Rule of Evidence 2:702( a)(i) provides that “a witness qualified as an expert by knowledge, skill, experience, training, or education may testif y thereto in the form of an opinion or otherwise” in civil proceedings if that witness’ specialized knowledge will assist the trier of fact in determining a fact at issue. The general rule is that the opi nions of experts or skilled witnesses are admissible in evidence in thos e cases in which the matter o f inquiry is such that inexperi enced persons are unlikely to prov e capable of forming a correct judgment upon it, for the reason t hat the subject matter so far partak es of the nature of a science, art or trade as to require a previous ha bit of experience or study in it to acquire a knowledge thereof. . . . T he scope of such evidence extends to any subject in respectof which one may derive speci al knowledge by experience, when his knowledge of the matter in relation to which his opinion i s asked is such, or is so great, that it will probably aid the trier i n the search for the truth. Neblett v. Hunter, 207 Va. 335, 339-40, 150 S.E.2d 115, 118 (19 66). “[T]he question of the qualification of a witness to sp eak as an expert lies largely i n the discretion of the trial court, whose judgment will not be reversed unless it clearly appears that the witness wa s not qualified.” Ames & Webb, Inc. v. Commercial Laundry Co., 204 Va. 616, 621, 133 S.E.2d 547, 550 (1963). A witness’ qualifica tion as an expert ext ends only to those ar eas of the witness’ special knowledge; “[t]he fact that a w itness is an expert in one field does not make him an expert in another field, even though the tw o fields are closely related.” Combs v. Norfolk and Western Ry. Co., 256 Va. 490, 496, 507 S.E.2d 355, 358 (1998) (holding biomedical engineer with some medical training not qualified to op ine on cause of disc ruptur e); see also, e.g., John v. Im, 263 Va. 315, 559 S.E.2d 694 (2000) (holding licensed psychologist n ot qualified to provide expert medical opinion on cause of brain i njury); Warmouth v. Commonwe alth, 29 Va. App. 476, 482, 513 S.E.2d 418, 421 (1999) (holding trial court did not err in finding witness qualified as expert in fingerprint identificat ion unqualified to express opinions i n the field of impression comparison).- 7 - In this case, father sought t o solicit Perez’s testimony relat ing to “specific issues” he observed while counseling the c hild. Following mother’s object ion, the trial court agreed that Perez needed to be qualified as a n expert before continuing. I n voir dire , the evidence established that Perez held a m aster’s degree in social work, h ad been a licensed counselor in Virginia for over ten years, had pa rticipated in similar cases to the one at bar, but had not performed any “forensic work” i n a professional capacity nor ha d he ever performed a child custody evaluation. Based on this foundation, the trial court qualified Perez as “a therapist and counselor with respect to children.” During father’s subsequent dir ect examination of Perez, counse l inquired “what [Perez’s] recommendations were related to therapeutic intervention” for the child. After mother objected, the trial court excused Perez and heard father’s proffer that P erez recommended “supervised therapeutic visitation.” The tr ial court ruled “that would be a custody recommendation . . . not within his purview as [the child ’s] therapist” and thus “is notadmissible.” The trial court elaborated that Perez was “supposed to be providing therapy for [the child, not] mak[ing] a recommendation with respect to c ustody. There is a distinction .” Later during Perez’s testimony, father sought to introduce the December 29, 2016 let ter containing Perez’s supervised visitation recommendati on into evidence. The trial court simil arly refused the letter because the recommendation was beyond the scope of Perez’s expert qualifica tion. By Perez’s own admission, he had never performed a court-order ed custody evaluation, nor was he asked to do one in thi s case. He never claimed to b e specially qualified in matters of child custody determinations. A lthough it is undisputed that P erez was an expert in the field of child therapy and counseling, and th is field is closely related to determinations of child custody in contentious separation cases, “ [t]he fact that [Perez] is anexpert in one field does not make- 8 - him an expert in another fiel d, even though the two fields are closely related.” Combs, 256 Va. at 496, 507 S.E.2d at 358. Appellant cites Code § 20-124.3 as authority for the trial court’s obligation to consider evidence of Perez’s recommendati on. That statute provides that a trial court considering matters of custody and visitation must a ssess various factors in determ ining a child’s best interests, including “[t]he age and physical and mental condition of the c hild, giving due consideration to the child’s changing developmen tal needs.” Code § 20-124.3(1). This statutory obligation, however, does not permit a trial c ourt to disregard the rules o f evidence. The onus remains on the parties to provide the trial court with competent, admissib le evidence with which to discharge its duty of making a best interes ts determination. Cf. Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 550 (1987) (“The burden i s always on the partie s to present sufficient evidence to provide the basis on which a pr oper determination can be mad e . . . .” (quoting Hodges v. Hodges, 2 Va. App. 508, 516, 347 S.E.2d 134, 139 (1986))). Fat her had the opportunity to present evidence regarding an a lternative custody and visitatio n arrangement through the testimony of an appropriate expert . “Parties should not be all owed to benefit on review for their failure to introduce evidence at trial.” Id. (quoting In re Marriage of Smith, 448 N.E.2d 545, 550 (Ill. App. Ct. 1983)). Having heard the evidence and r eviewed Perez’s qualifications, the trial court determined that he lacked the specialize d knowledge or training necessary for qualification as an expert on matters of child custody. Accord ingly, this Court holds that the trial court did not abuse its discretion in refusing to accept in to evidence Perez’s testimony or letter recommending that mother have only supervised visitation.- 9 - B. Contempt Finding In father’s third and fourth assignments of error, he contends that the trial court erred in finding him in contempt contrary t o the appropriate legal stand ard and that it “fa iled to consider the fact that law enforcemen t . . . did not require the child t o be exchanged” after mother called them to father’s home. In essence, father’s argument is that, as the child’s sole legal custodian, he was justified in acting c ontrary to the May 25, 2014 custody and visitation order based on Perez’s recommendation and his oblig ation to protect the child. Because these reasons are insufficient to justify willful vi olation of a court order, thi s Court holds that th e trial court did not err in holding father in contempt. “A trial court ‘has the aut hority to hold [an] offending partyin contempt for acting in bad faith or for willful disobedience of its order.’” Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d 666, 669 (1991) (quoting Carswell v. Matterson, 224 Va. 329, 332, 295 S.E.2d 899, 901 (1982)). In order to prevail i n a show cause hearing, “the moving party need only prove that the offending party failed to com ply with an order of the trial court.” Id. Once the moving party has met this burden, it then s hifts to the offending party to p rove a justification f or the failure to comply. Id.; see also Frazi er v. Commonwealth, 3 Va. App. 84, 87, 348 S.E.2d 405, 407 (1986). It is true the inability of an a lleged [contemnor], without fau lt on his part, to render obedience to an order of court, is a good d efense to a charge of contempt. But w here an alleged [contemnor] has voluntarily and contumaciously bro ught on himself disability to obey an order, he cannot avail hi mself of a plea of inability t o obey as a defense to the charge of contempt. When one shows by his conduct a deliberate and studied effort to disobey a valid orde r of a court, he subjects himself to punishment for contempt. Laing v. Commonwealth, 205 Va. 511, 515, 137 S.E.2d 896, 899 (1 964). Father argues on brief that the trial court denied him the opp ortunity to justify his failure to comply with the court order be cause it “refused to consider the evidence that formed the sole basis for [his] justificati on of why he did what he did regardi ng visitation.” He specifically- 10 - challenges the trial court’s refusal to “allow any of the under lying facts and/or reasons therefore to be explained by the court-ordere d therapist who made the [su pervised visitation] recommendation, solely, because he was not a custody evaluator. ” As discussed above, the trial court properly excluded evid ence of Perez’s recommendation beca use it was beyond the scope of his role as the child’s therapist. In its oral ruling at the hearing’s conclusion, the trial cour t indicated that Perez’s recommendation regarding visitati on was improper and could not justify father’s violation of the court order: [T]he therapist denied saying t hat he told [father] to violate a Court order however . . . father told the Court that Mr. Perez told h im to violate a Court order really conc erns me that we have healthcar e professionals even intimating that because you’re the legal custodian that you can violate aCourt order. I don’t know wha t he said or didn’t say to you and I don’t know how you construed itbut it concerns me that if Mr. Per ez even got close to crossing tha t line, he’s not someone that should be recommended by any Court to be providing therapy because you don’t get to make those decisions

. The trial court considered father’s actions in denying mother v isitation over the winter break, stating that father’s “whole excu se falls apart when the sherif f shows up at the door and you say no, not going. So, that’s when it be comes clear that it’s will ful.” After reviewing father’s continued denial of visitation to mother during January 2017, t he trial court ruled that it was “finding the father also in willful contempt for missing the Ja nuary visitations.” Whether appellant’s actions c onstituted willful contempt was amatter within the trial court’s discretion, Estate of Hackler, 44 Va. App. at 64, 602 S .E.2d at 432, and the trial court had competent evidence before it from which to conclude that father ’s actions were a willful violation of the May 25, 2014 cus tody and visitation order. Th at father’s actions were, at least in part, based on an improper recomm endation from the child’s ther apist is of no moment to the analysis because that recomm endation had no effect on father’s obligation to comply with the- 11 - order. Perez’s recommendation d id not give rise to anything ap proaching an “inability of [father], without fault on his pa rt, to render obedience to an order of court” and thus was not “a good defense to a charge of contempt.” Laing, 205 Va. at 515, 137 S.E.2d at 899. Moreover, father’s contention that the tri al court failed to consider tha t law enforcement did not require the exchange to occur is misguided b ecause appellate courts do not reweigh the evidence. See Mayer v. Corso-Mayer, 62 Va. App. 713, 730, 753 S.E.2d 263, 271 (2014); see also Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007) (“As an ap pellate court, we are not permitted to reweigh the evidence.”). Accordingly, this Court holds that the trial court did not err in holding father in contempt. C. Attorney Fees Both parties request attorne y fees on appeal pursuant to Rule 5A:30(b). This Court’s decisions regarding attorney fees a nd costs are discretionary a nd based not only on “a consideration of whether a party’s position on an issue was fri volous or lacked substantial merit but . . . all the equities of the cas e.” Rule 5A:30(b)(3); see O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). The case at bar was not frivolous, and instead addressed appropriate issues . Neither party contributed to und ue delay or engaged in inappropriate litigation tactic s. In light of the equities of this case, this Court declines to award attorney fees to either party.
IV. CONCLUSION The trial court properly exclude d evidence of Perez’s visitati on recommendation and did not abuse its discretion in finding that father willfully viola ted the May 25, 2014 custody and visitation order. Accordingly, thi s Court affirms the trial co urt’s rulings but does not award appellate attorney fees to either party. Affirmed.