COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Beales and Senior Judge Clements

Argued at Richmond, Virginia

SELENA GUDINO

MEMORANDUM OPINION* BY

v. Record No. 0068-11-2 JUDGE ROBERT J. HUMPHREYS

NOVEMBER 1, 2011

DENNIS GUDINO

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

Timothy J. Hauler, Judge

Jonathan W. Ware (Freshfields Bruckhaus Deringer US LLP, on 

briefs), for appellant.

Charles E. Powers (Terrence R. Batzli; Batzli Wood & Stiles, PC, on 

brief), for appellee.

Amicus Curiae: Domestic Violence Legal Empowerment and 

Appeals Project, Justice for Children, National Coalition Against 

Domestic Violence, and Leadership Council on Child Abuse and 

Interpersonal Violence (Carter B. Simpson; Joan Meier; Elizabeth 

Liu; SNR Denton, US LLP; George Washington University Law 

School, on brief), for appellant.

No brief or argument by Louise A. Moore, Guardian ad litem for 

the children.

Selena Gudino (“mother”) appeals an order from the Circuit Court of Chesterfield County 

(“circuit court”), dated December 9, 2010, awarding primary physical custody of her three children 

to Dennis Gudino (“father”), who resides in Tokyo, Japan.1

 Mother specifically maintains on 

appeal that the circuit court erred (1) in finding that the best interests of the children were served in 

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

1 Three children were born of the marriage: E.G., born October 1, 2000, E.X.G., born 

October 23, 2001, and E.A.G., born August 1, 2004.
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the custody of father, (2) in reappointing Dr. Michele Nelson as a custody evaluator for the children 

and in ordering mother to pay the entire fee for an independent evaluator, (3) in imposing excessive 

visitation costs on mother, (4) in appointing a guardian ad litem for the children without the 

evidence or findings required to do so, and (5) in requiring mother to pay half of the guardian ad 

litem’s fee. For the reasons that follow, we affirm the court below.

I. Analysis

A. Best Interests of the Children

Mother first contends on appeal that the circuit court erred in finding it is in the best interests 

of the children to be placed in the custody of father. Mother specifically contends the circuit court 

erred in (1) disregarding evidence of family abuse and father’s adverse mental history, (2) making 

findings as to the mental condition of the parents as well as to the children’s preferences without 

evidence to support them, (3) making findings as to the intellectual needs of the children contrary to 

the decision of both parents, and (4) failing to consider the past history of the parents in parenting 

and making findings not supported by the evidence.

Standard of Review and Governing Legal Principles

“‘In all child custody cases . . . the best interests of the child are paramount and form the 

lodestar for the guidance of the court in determining the dispute.’” Bottoms v. Bottoms, 249 Va. 

410, 413, 457 S.E.2d 102, 104 (1995) (quoting Bailes v. Sours, 231 Va. 96, 99, 340 S.E.2d 824, 826 

(1986)). “When the trial court hears the evidence ore tenus, its findings are entitled to the weight 

accorded a jury verdict,” and those findings should not be disturbed on appeal unless “plainly wrong 

or without evidence to support them.” Id. at 414, 457 S.E.2d at 104-05 (citing Bailes, 231 Va. at 

100, 340 S.E.2d at 827). “[A]s long as the 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.” Brown v. 

Brown, 30 Va. App. 532, 538, 518 S.E.2d 336, 338 (1999) (citation omitted). Moreover, “[a]bsent 
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clear evidence to the contrary in the record, the judgment of a trial court comes to an appellate court 

with a presumption that the law was correctly applied to the facts.” Bottoms, 249 Va. at 414, 457 

S.E.2d at 105 (citing Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 

(1977)). The thrust of several of mother’s assignments of error is essentially that this Court should 

give greater weight to her testimony and that of her witnesses than the circuit court did. However, 

an appellate court does not make its own factual findings; rather, “the appellate court should view 

the facts in the light most favorable to the party prevailing before the trial court.” Id.

“Code § 20-124.3 lists ten factors a trial court must consider when deciding the best interests 

of a child for determining custody and visitation of a child. The statute concludes by directing that 

the trial court ‘communicate to the parties the basis of [its] decision either orally or in writing.’” 

Artis v. Jones, 52 Va. App. 356, 363, 663 S.E.2d 521, 524 (2008) (quoting Code § 20-124.3).2 “We 

 2 Code § 20-124.3 provides, 

[i]n 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;
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have interpreted this statute as ‘requir[ing] the trial court to identify the fundamental, predominating 

reason or reasons underlying its decision.’” Id. (quoting Kane v. Szymczak, 41 Va. App. 365, 

372-73, 585 S.E.2d 349, 353 (2003)). “‘While communicating the “basis” of the decision does not 

rise to the level of providing comprehensive findings of fact and conclusions of law, it does mean 

that the trial court must provide more to the parties than boilerplate language or a perfunctory 

statement that the statutory factors have been considered.’” Id. (quoting Lanzalotti v. Lanzalotti, 41 

Va. App. 550, 555, 586 S.E.2d 881, 883 (2003)). “‘As long as the trial court examines the factors, it 

is not required to quantify or elaborate exactly what weight or consideration it has given to each of 

the statutory factors.’” Vissicchio v. Vissicchio, 27 Va. App. 240, 246, 498 S.E.2d 425, 428 (1998) 

(quoting Sargent v. Sargent, 20 Va. App. 694, 702, 460 S.E.2d 596, 599 (1995)). If the circuit 

court’s findings are supported by evidence in the record, this Court will affirm. Id.

 

 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 family abuse as that term is defined in 

§ 16.1-228 or sexual abuse. If the court finds such a history, the 

court may disregard the factors in subdivision 6; and

 10. Such other factors as the court deems necessary and proper 

to the determination.

The judge shall communicate to the parties the basis of the 

decision either orally or in writing.
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1. The Circuit Court’s Alleged Disregard of Family Abuse

Mother argues on appeal that the circuit court abused its discretion in disregarding the 

history of family abuse she endured during the marriage. 

Code § 20-124.3(9) requires the trial court to consider “any history of family abuse as that 

term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may 

disregard the factors in subdivision 6 . . . .” 

“Family abuse” means any act involving violence, force, or threat 

that results in bodily injury or places one in reasonable 

apprehension of death, sexual assault, or bodily injury and that is 

committed by a person against such person’s family or household 

member. Such act includes, but is not limited to, any forceful 

detention, stalking, criminal sexual assault in violation of Article 7 

(§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, or any criminal 

offense that results in bodily injury or places one in reasonable 

apprehension of death, sexual assault, or bodily injury.

Code § 16.1-228.

In rendering its decision, the circuit court considered each and every one of the factors 

contained in Code § 20-124.3. In considering factor 9, “[a]ny history of family abuse as that term is 

defined in § 16.1-228 or sexual abuse,” the court reasoned, 

the evidence that I have heard today is in conflict and inconclusive. 

If all of this abuse happened as you testified to, ma’am, I’m 

shocked that there is not any corroborative evidence of it. If it did 

occur then I think Mr. Gudino has done a superb job in covering it 

up and excusing it . . . it could have been a pivotal factor in this 

case, but the evidence is in conflict and is inconclusive in the view 

of this Court.

Mother asserts this finding is plainly wrong, especially since her friends and family members, a 

former therapist, and even Dr. Nelson expressly stated that mother suffered abuse from father. 

Even viewing the facts in the light most favorable to father, it is clear this couple had a 

volatile and, at times, physically violent history together. Mother testified to, and mother’s friends 

and family corroborated, several instances of abuse, and father did not deny his tendency to yell and 
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scream at mother and the children. Dr. McRae observed father and mother during eight counseling 

sessions in Japan, and noted that father was verbally abusive toward mother, that father had anger 

management issues, and that he used his anger and finances to control mother. Mother testified to 

five different physical altercations in which father would pull mother’s hair and push her to the 

ground.

Father admitted that he hit mother “four to five times.” However, father also testified that 

mother often hit him and stated he only hit her if she hit him first. It is uncontested that on one 

occasion, mother hit father with a tea cup, causing a gash in father’s head that required stitches. 

Mother conceded that she often “lost control” with the kids and she would lock them out of the 

house. She admitted that she slapped E.G. across the face. Thus, contrary to mother’s assertion, the 

record suggests that both parties were mutually abusive to each other and the children, and the 

marriage was turbulent. While mother’s evidence indicated a number of instances of verbal and 

physical abuse, in order to constitute “family abuse,” there must be evidence, which the trial court 

finds credible, that the abusive conduct “results in bodily injury or places one in reasonable 

apprehension of death, sexual assault, or bodily injury.” Code § 16.1-228. All facts pertaining to 

the allegation of family abuse were before the circuit court, and it appears from the record that the 

court did consider them. The court simply gave greater weight to the testimony of father. That 

finding is not plainly wrong or without evidence to support it and, therefore, it is binding on this 

Court. The circuit court did not, thus, err in failing to consider the couple’s history of family abuse. 

2. The Circuit Court’s Findings as to the Mental Condition of the Parents

and the Children’s Preferences

Mother next assigns error to the circuit court’s consideration of the children’s preferences 

and in concluding they prefer to reside with father. Mother also contends the circuit court failed to 

consider husband’s mental condition in rendering its decision.
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In its ruling from the bench, the circuit court addressed each and every one of the issues 

contained in Code § 20-124.3. In addressing “factor 8, the reasonable preferences of the child,” the 

court stated, “I only have the testimony of Dr. Nelson, if those are accurate, the children prefer 

being with the father.” However, Dr. Nelson’s second report to the circuit court, dated July 11, 

2010, indicated that none of the children have a preference for where they will live. Dr. Nelson also 

did not testify at trial to any particular preference on the part of the children and explained the 

children would simply like to have a final decision in the matter. The circuit court’s finding that the 

children prefer to live with father is, thus, plainly wrong and without evidence to support it.

Nevertheless, the circuit court was simply required to consider each and every one of the 

factors contained in Code § 20-124.3. It was not required to give any particular weight to these 

factors or to quantify them in any way. And, since nothing in the record suggests that this factor 

was pivotal to the court’s custody decision, any such error in the court’s factual finding with respect 

to the children’s preferences is harmless. See King v. Cooley, 274 Va. 374, 379, 650 S.E.2d 523, 

526 (2007) (“Under the doctrine of harmless error, we will affirm the circuit court’s judgment when 

we can conclude that the error at issue could not have affected the [result].”). With respect to factor 

2, “the age and physical and mental condition of each parent,” the circuit court opined, “mental 

condition also includes emotional. And based upon the evidence presented . . . the court finds that 

there are significant emotional problems that may exist with [mother], in that regard factor 2 

militates in favor of the [father].” Mother suggests that the circuit court failed to properly consider 

this factor because it made no mention of father’s history of psychiatric hospitalization, his suicidal 

ideations or his rage issues. While it is true that “custody and visitation proceedings require courts 

to consider the mental health of the parties,” Schwartz v. Schwartz, 46 Va. App. 145, 153, 616 

S.E.2d 59, 64 (2005) (emphasis added), father’s history of psychiatric hospitalization, his suicidal 

ideations, and his anger management issues were presented to the circuit court, and there is no 
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evidence that the court did not consider them. The mere fact that the court did not mention the 

particularities of father’s mental condition is of no moment. The circuit court expressly considered 

factor 2 as required and simply gave greater weight to mother’s delicate emotional state, for which 

the record contained sufficient evidence, than it gave to father’s mental health issues. The circuit 

court did not, therefore, abuse its discretion in its consideration of factors 2 and 8.

3. The Circuit Court’s Findings as to the Intellectual Needs of the Children

Mother next alleges the circuit court erred in its findings on factor 3, each parent’s “ability 

to accurately assess and meet the emotional, intellectual and physical needs of the child.” 

Specifically, mother contends the circuit court’s finding is “contrary to the decision of both parties” 

to place the children in the Waldorf School, and it violates mother’s fundamental constitutional right 

to make decisions about raising her children. To begin with, mother did not make any constitutional 

objection to the court’s ruling in the circuit court. For that reason, her constitutional objection is not 

properly preserved for appeal. See Rule 5A:18. With respect to the parties’ decision to place the 

children in the Waldorf School during the parties’ separation in 2007, father testified that he agreed 

to the children’s placement in that school to increase the possibility of a reconciliation with mother. 

Father reported to Dr. Nelson that he and mother had actually discussed a wide range of educational 

options for the children and he objected to their attendance at the Waldorf School upon the parties’ 

final separation. Indeed, the Waldorf School is admittedly unaccredited, it does not utilize any 

electronic equipment necessary to modern education such as computers, printers, television or video 

equipment, it does not utilize any textbooks (the children make their own textbooks), and it does not 

test or grade the children to provide valuable feedback on their learning accomplishments.

Dr. Nelson was very thorough in her discussion of the children’s education in Japan. She 

explained that E.G. is having a difficult time catching up with the curriculum in Japan, given the 

fact that she missed an entire school year in 2007, but she is improving rapidly. Although E.G. 
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reported that she finds school in Japan to be very hard, she has many friends and is very social. 

E.X.G. is doing very well at school and appears to be thriving. Whereas he was out of control in his 

early years, he is now obedient and he appears to enjoy a level of popularity with his teachers and 

the other children. He is also very active in soccer and enjoys sharing that activity with his father. 

Additionally, although E.A.G. did not appear to understand Japanese at all upon his return, he has 

since begun to pick up the language and appears to be doing well in school. Although we 

acknowledge mother’s concern that E.X.G. has exhibited declining skills in English since his return 

to Japan, we note the trial court considered this fact along with all the evidence in this case, 

including evidence that father hired tutors for all the children. The circuit court did not, therefore, 

abuse its discretion in weighing mother’s concern against all of the other evidence that the children 

were thriving in Japan with father. There is some concern over bullying that the children have had 

to endure, but the authorities in Japan seem to be sensitive to the issue. 

The circuit court’s statement that the “feel-good Waldorf School curriculum really doesn’t 

impress [the court] one bit,” is not per se an unreasonable assessment of the Waldorf School, any 

more than its suggestion that American schools might benefit from the “very rigid educational 

program that obviously works” in Japan. The record contains a significant amount of factual 

information pertaining to the educational needs of the children and both parents’ approach to 

meeting those needs. Although the court did not provide a comprehensive analysis supporting its 

decision, the fact is, the circuit court considered the parties’ ability to accurately assess and meet the 

intellectual needs of the children as required by Code § 20-124.3(3) and its findings are not plainly 

wrong or without evidence to support them. We, thus, affirm the circuit court’s findings on factor 3.

4. The Circuit Court’s Failure to Consider the Past History of the Parents in Parenting

Finally, mother contends that the circuit court erred in its consideration of factor 5 “the role 

that each parent has played and will play in the future, in the upbringing and care of the child.” 
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Mother also argues the circuit court erred in its consideration of factor 7, “the relative willingness 

and demonstrated ability of each parent to maintain a close and continuing relationship with the 

child.” 

In considering factor 5, the circuit court stated, “there’s no question, Mrs. Gudino, that you 

have been a primary caregiver. And I’m not going to minimize the importance of that in the early 

development stages of a child and now we’re talking about what role they will play in the future in 

the upbringing and care of the child.” The court continued, “Mr. Gudino, based upon the evidence 

that has been presented, has demonstrated that he is concerned about the needs of the children and 

has acted in every way to ensure their needs are being met.”

Again, although the court focused on mother’s past role as the primary caretaker, the record 

contains evidence that father was always involved with the children. Father testified that he was a 

“birth partner” (mother wanted to have the babies born at home), he changed diapers, he fed the 

babies, he got up with the babies in the middle of the night, he did chores around the house, he got 

the children ready for school in the mornings and made them breakfast, he took the children to 

school, and he put them to bed. The record, thus, contains evidence of father’s past involvement in 

the children’s lives, and there is no evidence that the court did not consider it. 

With respect to factor 7, Dr. Nelson’s report suggests that since the children’s return to 

Japan, father has minimized his own social activities in favor of spending time with the children. 

Father is responsible for getting the kids to school in the morning and for putting them to bed at 

night. Father participates in weekly soccer games with E.X.G., and he engages the children in 

regular weekend family activities. The children are noticeably better behaved, particularly in 

response to father’s implementation of his “hankos” system of discipline in which the children earn 

reward points for good behavior. Because of the success of the hankos system, father does not have 

to yell and scream at the kids as he did in the past. E.G. testified that whereas she felt like she lived 
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with 18 screaming monkeys at her mother’s house, at father’s “we are just three screaming 

monkeys.” Although the children struggle with the difficult Japanese school system, they appear to 

be thriving, they seem normal and well-adjusted, and they appear happy. The court’s finding that 

father “has stepped up to the plate . . . [h]e has shown the initiative and has done just that,” is not 

plainly wrong or without evidence to support it. 

Because the circuit court appears to have properly considered factors 5 and 7, and because 

its findings are supported by the record, we must affirm the circuit court. 

B. The Circuit Court’s Reappointment of Dr. Nelson as a Custody Evaluator and

its Requirement that Mother Solely Bear the Entire Cost 

of an Independent Evaluator for the Children

Mother next maintains that the circuit court erred in reappointing Dr. Nelson as a custody 

evaluator for her appeal in the circuit court. She also alleges the circuit court erred in ordering her 

to pay the total cost of an independent evaluator. Mother contends the circuit court’s rulings 

effectively denied her a trial de novo in the circuit court. Father responds that mother failed to

preserve this assignment of error for appeal, since she failed to object to the circuit court’s rulings 

with the required specificity when rendered. Father is correct; mother did not properly preserve this 

issue for appeal.

Rule 5A:18 provides that 

[n]o ruling of the trial court . . . will be considered as a basis for 

reversal unless an objection was stated with reasonable certainty at 

the time of the ruling, except for good cause shown or to enable the 

Court of Appeals to attain the ends of justice. A mere statement 

that the judgment or award is contrary to the law and the evidence 

is not sufficient to preserve the issue for appellate review.

“In order to preserve an issue for appeal, ‘an objection must be timely made and the grounds stated 

with specificity.’” McDuffie v. Commonwealth, 49 Va. App. 170, 177, 638 S.E.2d 139, 142 (2006) 

(quoting Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986)). “A party 

must state the grounds for an objection ‘so that the trial judge may understand the precise question 
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or questions he is called upon to decide.’” Scialdone v. Commonwealth, 279 Va. 422, 437, 689 

S.E.2d 716, 724 (2010) (quoting Jackson v. Chesapeake & Ohio Ry. Co., 179 Va. 642, 651, 20 

S.E.2d 489, 492 (1942)). “To satisfy the rule, ‘an objection must be made . . . at a point in the 

proceeding when the trial court is in a position, not only to consider the asserted error, but also to 

rectify the effect of the asserted error.’” Id. at 437, 689 S.E.2d at 724 (quoting Johnson v. Raviotta, 

264 Va. 27, 33, 563 S.E.2d 727, 731 (2002)). 

Rule 5A:18 “‘exists to protect the trial court from appeals based upon undisclosed grounds, 

to prevent the setting of traps on appeal, to enable the trial judge to rule intelligently, and to avoid 

unnecessary reversals and mistrials.’” Reid v. Boyle, 259 Va. 356, 372, 527 S.E.2d 137, 146 (2000) 

(quoting Fisher v. Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52 (1988)). “In addition, a 

specific, contemporaneous objection gives the opposing party the opportunity to meet the objection 

at that stage of the proceeding.” Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). 

“If [the] opportunity [to address an issue] is not presented to the trial court, there is no ruling by the 

trial court on the issue, and thus no basis for review or action by [the appellate court].” Riverside 

Hosp., Inc. v. Johnson, 272 Va. 518, 526, 636 S.E.2d 416, 420 (2006). An appellate court can only 

“determine whether or not the rulings and judgment of the court below . . . were correct.” Jackson, 

179 Va. at 651, 20 S.E.2d at 493.

In this case, the parties appeared in the circuit court on February 18, 2010, on mother’s 

“Emergency Motion to Extend Stay of Enforcement” of the juvenile and domestic relations district 

court’s (“J&DR”) custody order pending appeal. The guardian ad litem appeared and requested, 

over mother’s objection, to be reappointed as guardian ad litem for the children during the pendency 

of the appeal. Mother objected to the reappointment of the guardian ad litem, alleging that the 

guardian ad litem was biased. During the discussion, mother also referred to Dr. Nelson’s report. 

Mother suggested that Dr. Nelson’s report gave considerable weight to some factors favorable to 
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father while ignoring other factors favorable to mother. However, the record fails to disclose any 

specific objection to the reappointment of Dr. Nelson as prohibiting mother’s right to a trial de novo. 

At the conclusion of the hearing, after the circuit court reappointed the guardian ad litem, mother 

inquired, “what about Dr. Nelson, your Honor?” The circuit court replied, “I will reappoint 

Dr. Nelson. Do you want me to appoint another independent?” Mother said, “yes.” After 

appointing an independent evaluator, the court stated, “the parties are bearing the expenses of the 

independent.” After some further discussion, the circuit court stated “well, each party can pay for 

their own evaluator.” Mother responded, “just for the record, Your Honor, we do object to 

Dr. Nelson and to the Guardian Ad Litem’s report. The court responded, “that’s noted in the record 

and it is preserved for any appellate purposes that may follow.” 

The circuit court’s order, dated February 22, 2010, provided that mother is to pay the entire 

cost of the independent evaluator and father is to pay Dr. Nelson’s fee. Although mother signed the 

order “seen and objected to as to the court’s re-appointment of Dr. Michelle K. Nelson as a neutral 

evaluator in this case,” mother’s objection is not stated with any specificity. In context, it appears 

mother objected to Dr. Nelson’s reappointment on the basis of Dr. Nelson’s bias. However, 

mother’s objection does not make any reference whatsoever to the court’s requirement that mother 

pay the cost of an independent evaluator, and mother’s objection does not mention the effect of the 

circuit court’s ruling on mother’s right to a de novo trial. The circuit court was, therefore, not

apprised of the objections mother now raises, and it was afforded no opportunity to remedy the 

purported wrongs. 

In sum, the circuit court was not properly notified of mother’s specific reason for her 

objection to the reappointment of Dr. Nelson and she made no objection at all to the court’s 

requirement that she pay for the independent evaluator. This issue is, therefore, not preserved for 

appeal. 
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C. The Circuit Court’s Imposition of Excessive Visitation Costs on Wife as Inequitable 

Given the Parents’ Vast Income Disparity

Mother next contends the circuit court erred in ordering her to pay a pro rata portion of the 

children’s travel expenses associated with their visitation schedule in the United States and in 

ordering mother to pay the entire costs associated with mother’s visitation in Japan. Mother

maintains that given the vast disparity in the parties’ respective incomes, father should be ordered to 

pay the entire cost associated with mother’s visitation with the children. 

 The authority vested in a trial court to decide issues concerning 

the care, custody, support and maintenance of the minor children, 

the visitation rights of the non-custodial parent, and the extent to 

which those rights and responsibilities shall be apportioned 

between estranged parents is a matter of judicial discretion which 

courts must exercise with the welfare of the children as the 

paramount consideration.

Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986). This Court will not 

reverse such decisions absent “a clear abuse of discretion.” Congdon v. Congdon, 40 Va. App. 255, 

262, 578 S.E.2d 833, 836-37 (2003) (citation omitted). “An abuse of discretion can be found if the 

trial court uses an improper legal standard in exercising its discretionary function, because a trial 

court by definition abuses its discretion when it makes an error of law.” Id. (quotations omitted). 

Mother suggests that she should not be required to pay any of the transportation costs 

attendant to the children’s visitation with her in the United States, nor should she have to pay the 

entire cost associated with her visits to Japan, because of the vast discrepancy in the parties’ 

respective incomes. However, the circuit court clearly considered that discrepancy in ordering that 

mother and father pay only a pro rata portion of the necessary costs for the children’s visitation 

schedule in the United States. Moreover, although father makes significantly more money annually 

than mother, the record shows that he lives in Tokyo, “one of the most expensive cities in the 

world,” where he paid one million dollars for a 1,600 square foot house and where he is primarily 

responsible for the upbringing of the parties’ three children. Also, because matters pertaining to 
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mother’s entitlement to spousal support and equitable distribution were not yet decided when the

circuit court rendered its decision, it is unclear from this record whether mother will, in fact, be able 

to pay her own way in Japan should she decide to visit with the children there. Mother works full 

time and lives at home with her father. She also incurred legal fees in an amount exceeding 

$150,000, and she paid an expert witness $8,000 merely to read Dr. Nelson’s report and testify at 

trial. Mother’s assertion that she is unable to pay her own way in Japan is, therefore, entirely 

speculative and not supported by the record. It was within the discretion of the circuit court to 

decide issues pertaining to visitation and the costs attendant thereto and, contrary to mother’s 

suggestion on brief, there is no evidence the circuit court was attempting to penalize mother in any 

way. 

Simply put, the circuit court did not abuse its discretion in requiring mother to pay a pro 

rata portion of the costs attendant to her visitation with the children in the United States and in 

ordering mother to pay the whole cost associated with her visits to Japan. We, therefore, affirm the 

circuit court on this issue as well. 

D. The Circuit Court’s Appointment of the Guardian Ad Litem

Mother also alleges the circuit court erred in reappointing Louise Moore as guardian ad 

litem for the children during the pendency of mother’s appeal. Specifically, mother contends the 

circuit court appointed Moore without first rendering specific findings in accordance with Code 

§ 16.1-266(F).3

 According to mother, Moore’s appointment was, therefore, “unlawful.” Mother 

 3 Code § 16.1-266(F) provided in pertinent part:

in cases where the custody of a child or children is the subject of 

controversy or requires determination and each of the parents . . . 

claiming a right to custody is represented by counsel, the court 

shall not appoint . . . a guardian ad litem to represent the interests 

of the . . . children unless the court finds, at any stage in the 

proceedings in a specific case, that the interests of the child or 

children are not otherwise adequately represented. 
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appears to concede that she failed to preserve this issue for appeal and suggests that this Court can 

address the assignment of error under the ends of justice exception to Rule 5A:18. 

As previously stated,

[n]o ruling of the trial court . . . will be considered as a basis for 

reversal unless an objection was stated with reasonable certainty at 

the time of the ruling, except for good cause shown or to enable the 

Court of Appeals to attain the ends of justice. A mere statement 

that the judgment or award is contrary to the law and the evidence 

is not sufficient to preserve the issue for appellate review.

Rule 5A:18.

In this case, mother clearly objected to the reappointment of the guardian ad litem on the 

basis that she was biased. Indeed, at the February 18, 2010 hearing mother explained to the circuit 

court that she had filed a motion in the J&DR court to disqualify Moore as the guardian ad litem

because of Moore’s “biased opinion in this case.” However, mother had withdrawn the motion 

because she “did not have the money to move forward with that issue, and her motion is just being 

made now.” Because mother did not have any documentary or other evidentiary support for her 

contention that Moore was biased, the circuit court ruled that until it heard some evidence as to 

Moore’s bias or prejudice, it was going to reappoint Moore. 

On appeal, mother appears to abandon her argument that Moore was biased, and instead 

argues alternatively that the circuit court failed to make threshold statutory findings before 

reappointing her, as required by Code § 16.1-266. However, at no point in time did mother ever 

mention Code § 16.1-266 to the circuit court or suggest the circuit court was required to make initial 

findings pertaining to the appointment of a guardian ad litem for the children. She has, thus, failed 

to preserve this assignment of error for our review. 

Appearing to acknowledge her failure to preserve the issue, mother suggests this Court can 

consider the matter under the ends of justice exception to Rule 5A:18. However, “the ends of 

justice exception is narrow and is to be used sparingly.” Brown v. Commonwealth, 8 Va. App. 126, 
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132, 380 S.E.2d 8, 11 (1989). “Application of the ends of justice exception requires proof of an 

error that was clear, substantial and material.” Andrews v. Creacey, 56 Va. App. 606, 636, 696 

S.E.2d 218, 232 (2010) (citation omitted). That is, “[t]he record ‘must affirmatively show that a 

miscarriage of justice has occurred, not that a miscarriage might have occurred.’” Id. (quoting 

Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997)). While “some 

procedures are so crucial that a court’s failure to adhere to them constitutes error that is clear, 

substantial and material even in the absence of affirmative proof of error in the result,” Herring v. 

Herring, 33 Va. App. 281, 287, 532 S.E.2d 923, 927 (2000), such is not the case here. The circuit 

court appointed the guardian ad litem as requested, and the guardian ad litem performed the duties 

required of her. Mother cannot now complain on appeal of error in the circuit court where she 

herself failed to follow through with her motion to exclude the guardian ad litem and where she 

failed to properly notify the court of the statutory requirements for the appointment. This issue is 

waived. 

E. The Circuit Court’s Requirement that Mother Pay One-Half

of the Guardian Ad Litem’s Fee

Lastly, mother contends the circuit court erred in ordering her to pay one-half of the 

guardian ad litem’s fee in this case. 

There is no dispute that “in those contested custody cases where the trial judge finds that the 

best interests of the child are not adequately protected by the parties, appointment of a guardian ad 

litem for the child is appropriate.” Verrocchio v. Verrocchio, 16 Va. App. 314, 322, 429 S.E.2d 

482, 487 (1993). “Indivisible from the power of appointment is the associated power equitably to 

apportion the fees and expenses of the guardian ad litem as costs to the parties.” Id. Indeed, “Code 

§§ 20-79(b) and 20-99(5) provide the statutory basis for the award of such costs as equity and 

justice may require. Such an award is considered remedial and is within the recognized ‘discretion 
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of a court of equity over the subject of costs.’ Code § 14.1-177 [recodified at Code § 17.1-600].” 

Id.

Here, mother contends she should not be required to pay any of the costs associated with the 

guardian ad litem appointed by the court to oversee the best interests of the children. Mother 

suggests that because husband makes substantially more money per year than she does, he should 

pay the entire fee. However, as previously stated, father lives in one of the most expensive cities in 

the world and he has primary physical custody of the children. Wife has at least two professional 

certifications and works full time. She also lives at home with her father. Both parties have 

incurred substantial attorneys’ fees and costs associated with this litigation, and mother exhibited an 

ability to pay her own expert witness fee in the amount of $8,000. Thus, while mother clearly 

makes less money than father, the record shows that mother has the ability to pay one-half the cost 

of the guardian ad litem’s fee, notwithstanding the resulting hardship and sacrifice associated with 

it. The circuit court did not, thus, abuse its discretion in ordering mother to pay one-half of the 

guardian ad litem’s fee. 

II. Conclusion

For the foregoing reasons, we conclude that the circuit court did not abuse its discretion in 

awarding primary physical custody of the parties’ three children to father, in reappointing 

Dr. Nelson as the custody evaluator and Ms. Moore as the guardian ad litem, or in ordering mother 
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to pay one-half of the guardian ad litem’s fee, the entire cost of an independent evaluator, and the 

costs associated with her visitation with the children. We, thus, affirm the circuit court.4 

Affirmed.

 4 Father requests his attorney’s fees on appeal. 

The rationale for the appellate court being the proper forum to 

determine the propriety of an award of attorney’s fees for efforts 

expended on appeal is clear. The appellate court has the 

opportunity to view the record in its entirety and determine 

whether the appeal is frivolous or whether other reasons exist for 

requiring additional payment.

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Upon 

consideration of the record, we conclude “the litigation addressed appropriate and substantial 

issues” and that [mother] did not generate[] unnecessary delay or expense in pursuit of [her] 

interests.” Estate of Hackler v. Hackler, 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004). Thus, 

we deny father’s request for an award of appellate attorney’s fees and costs.