COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Hu ff and Senior Judge Coleman Argued at Richmond, Virginia

SHARI SIMS-BERNARD MEMORANDUM OPINION * BY v. Record No. 2090-12-2 JUDGE ROBERT P. FRANK OCTOBER 8, 2013 STEPHEN P. BERNARD

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Harold W. Burgess, Jr., Judge William G. Shields (The Shields Law Firm, on briefs), for appellant. Kimberlee Harris Ramsey; Scott D. Landry, Guardian ad litemfor the minor children (John H. Taylor; FloranceGordonBrown; Duty, Duty & Landry, on brief), for appellee.

Shari Sims-Bernard, mother, ch allenges the trial court’s ruli ng that awarded sole legal custody to Stephen Bernard, father , and that mother’s visitation be supervised. On appeal, mother assigns error to the suffic iency of the evidence in five separate assignments of erro r. Mother also claims error to the trial court’s failure to order family and psycholo gical review of the children and the trial court’s authoriz ing Child Protective Services (CPS) to determine the amount of contact mother has with the children. Fo r the reasons stated, we affirm th e judgment of the trial court.
BACKGROUND On appeal, we view the evidence in the light most favorable to father , as the prevailing party below. Brown v. Burch, 30 Va. App. 670, 681, 519 S.E. 2d 403, 408-09 (1999). By order of December 22, 2010 , mother was awarded joint custody with father of the two minor children born of the marriage, with primary ph ysical custody to father. Mother was granted

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - specific visitation. The children, both girls, were twelve and thirteen years old at the time of the September 17, 2012 hearing. In that order the trial court recalled mother’s prior diagno sis of “Delusional Disorder, Jealous Type” and the court still pe rceived “questionable behavior” on mother’s part. The trial court concluded mother “has ways to go in her treatment.” As a result, the trial court ordered mother to continue counseling w ith Mario Gomez, M.D. , and Denis Kilgore, a Licensed Clinical Social Worker and Ph.D. in social work, and to follow all treatment recommendations. The children were ordered to continue counseling. The parents were ordered to participate in co-parent counseling. It was further ordered that neither pare nt disparage the other in the children’s presence, “nor discuss disputed issues with the children, nor discuss the divorce litiga tion.” Mother was also ordered not to discuss with the childr en her perceived fear of the father. Based on a complaint made to CPS that the children were underweight and malnourished, 1
mother filed a motion for a change of custody and to award mother full custody of the children. The children’s guardian ad litemmoved the trial court to modify the December 2 2, 2010 order to award sole legal custody to father and to suspend or restrict mother’s visitation. Mother had asked for an expedited hearin g and for an expedited medical emergency hearing, but the trial court denied those motions, finding “no exigent medica l circumstances exist at this time.” Mother also moved th e court for a family evaluation, re questing father, father’s current wife, and the children submit to physiological and psychiatric examinatio ns, in particular “to examine the suitability of the home . . . and th e methods of discipline em ployed by the Bernards

1 After an investigation, CPS determined the charge was unfounded. Instead, CPS determined that mother was an alleged abuser/neg lector of the children. This opinion was based on “[t]he feelings that the girls had that they were not safe in their own home appeared to be coming from their mother . . . and their worries a nd concerns about their h ealth also were coming from [their mother].”- 3 - . . . .” The trial court, by order of September 17, 2012, took the motion un der advisement “pending the evidence presented at the upco ming scheduled h earing . . . . ” At the September 17, 2012 hearing, Dr. Denis Kilgore testified he saw nothing that would prevent mother from seeing the children or having contact with them. He further opined mother should not be denied additional vi sitation or custody. However, Dr . Kilgore conceded he had never seen the children nor observed their interaction with mother. Kilgore, on cross-examination, admitted his opinion wa s based solely on moth er’s self-reporting. Dr. Leigh Hagan, Ph.D., who saw mother four times between 2010 and 2012, opined that mother was entitled to greater access to the childr en. Dr. Haga n qualified his opin ion by indicating he had not seen the children. Mother called two neighbors wh o both testified mother was anexcellent mother who never spoke inappropriate ly of father. Mother testified of her clos e relationship with the girls and denied saying anything derogatory about father. Specifically, she denied te lling the girls that father beat her or raped her, that father looked at pornographyand the girls should keep thei r bedroom door closed, and that father is paying off everyone involved inthe litigation. The trial court rejected mother’s testimony, as well as the te stimony of Drs. Kilgore and Hagan. Father testified that the girls were earning As and Bs in school, and were seen by the pediatrician for regular checkups an d illnesses, in addition to regular sports ph ysicals. They were within their normal height and weight ranges for their respective ages. Father also testified that the reason he called the police to his home was because one of the girl s was “out of co ntrol” and was slamming doors and being physically abusive, striki ng father. The cause of this outburst was that father caught her with a cell phon e which father had prohibited. Hetestified that he does not allow- 4 - the children to have free access to cell phones because they are not responsible enoughand that they would call their mo ther incessantly. Father also testified that the children’s be havior would change u pon returning home from visitation with their mother. They would ofte n be withdrawn and woul d not speak to anyone. Jamie Bernard, father’s presen t wife, confirmed father’s description of the girls’ behavior upon returning from visitation with mo ther. She also testified she sa w mother at a so ftball game use a key to scratch father’s automobile. Mother’s attendance at the game also viol ated the December 22, 2010 court order which speci fically barred mother from attendi ng extracurricular activities unless such activities occurred during scheduled visitation. Katie Bernard, the parties’ ad ult child, characterized father’s relationship with her two sisters as “normal.” She never heard father disparage mother. Katie heard mother on several occasions tell the childre n they were too skinny and that fath er beat the mother. She heard her mother tell the girls thei r father watched pornography and that the girls should “w atch out” for him and close their bedroom door s when they change clothe s. Katie also confirme d that mother, in front of the girls, said father “bought off” everyone. Katie noticed that the two girls, upon returning from visitation with mother would be hostile, rude, and non-talkative. By its letter opinion dated September 24, 20 12, the trial court made a number of factual findings: the children were not malnourished; the mother ’s thinking and conduc t towards father and the children are not norm al; and mother suffers fr om “some mental abnormalities . . . .” Mother’s “continued agenda of sabotage” ha s thwarted father’s role as pr imary custodian of the children. The trial court accepted Katie Bernard’s testimony that mother continues to degrade father to the children, telling them one child is malnourished, that father has de nied them food , that father had beaten mother, that father us ed child pornography, such that the daughters should keep their bedroom doors shut when father is present, and that father had “paid off” people to win custody.- 5 - The court further found the child ren are rude and disrespectful to father when they return from visitation with mother and that both girls expressed a desire to live with mother . Further, the court opined “the court is convin ced that unless [mother] is stop ped the girls will eventually be harmed emotionally.” The court concluded that mother has not changed her conduct. While she has participated in therapy, “she has not been ab le to internalize what she has learned in these sessions.” The court concluded that the girls be “isolated from [mot her’s] vitriol against [father].” Responding to mother’s motion to clarify the court’s ruling, the court, in a supplemental opinion letter dated September 27, 2012, further found that the DSS, th rough CPS, has the full authority to determine how much co ntact mother is to have with her daughters thro ugh supervised visitation. The final custody and visitation order, entere d October 16, 2012, esse ntially repeated the court’s factual findings in the Se ptember 24, 2012 opinion letter. The cour t (1) denied mother’s request for expanded visitation; (2) awarded sole legal custody to father; (3) awarded mother supervised visitation to be scheduled and modifi ed, if needed, by CPS; (4) CPS is given full authority to determine how much cont act mother is to have with the children; and (5) CPS is to have the final decision on the supervision provider. This appeal follows.
ANALYSIS Assignments of Error 2 through 6 – Sufficiency Mother argues the trial court ab used its discretion in substa ntially reducing her visitation with her daughters. Specifically, she contends that no evidence wa s presented that: 1) she suffered from a mental illness that was harmful to her child ren; 2) she sabotaged father’s parenting; 3) the children’s preference to reside w ith her was not in their best interests; 4) her behavior will- 6 - eventually be emotionally harmful to the chil dren; and 5) supports the trial court’s decision to grant sole custody to father with supervised vis itation to mother. “In issues of child custody, ‘the court’s param ount concern is always th e best interests of the child.’” Vissicchio v. Vissicchio, 27 Va. App. 240, 246, 498 S. E.2d 425, 428 (1998) (quoting Farley v. Farley, 9 Va. App. 32 6, 327-28, 387 S.E.2d 79 4, 795 (1990)); see Code § 20-124.2(B). “Because the trial court h eard the evidence at an ore tenus hearing, its decision ‘is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to support it.’” Piatt v. Piatt, 27 Va. App. 426, 432, 49 9 S.E.2d 567, 570 (1998) (quoti ng Venable v. Venable, 2 Va. App. 178, 186, 342 S.E. 2d 646, 651 (1986)). “Abs ent clear evidence to the co ntrary in the record, the judgment of a trial court comes to an appellate co urt with a presumption th at the law was correctly applied to the facts.” Bottoms v. Bottoms, 249 Va. 410, 414, 457 S.E.2d 102, 105 (1995). While mother assigns five e rrors to the trial court’s findi ngs regarding the change in visitation, she essen tially argues no evidence wa s presented to support the trial court’s ruling to drastically limit visitation with her children. We disagree with appellant. After hearing the evidence, incl uding a private conversation with the two girls, the trial court determined that the mother’s thoughts and conduc t towards father and the children are abnormal. The court also concluded that the mother had an ag enda of sabotage and has tr ied to obstruct father as the children’s primary custodian. Central to the trial court’s ruling is mother’s “mental abnormalities” in her attitude towards fa ther, manifested by her disparaging father in front of the children and her illuso ry thoughts concerning father’s behavior . We find evidence in the record to support these findings. Evidence presented showed that mother e xhibited bizarre behavior, displaying signs of paranoia and destructive tendencies and basically tryi ng to poison the children against their father. In addition, the social worker from CPS testified that after inve stigating an alleged complaint- 7 - against the father, CPS determin ed that the mother is “an alleged abuser and neglector.” 2 Thus, we find evidence to support a finding that mother ha s a mental illness which ha s impacted her parenting ability. Mother testified of her close relationship with her daughters and denied allegations of her saying anything derogatory regard ing the girls’ father. However, the trial court was at liberty to disregard mother’s testimony. “The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). The trier of fact is not required to accept a witness’ testimony, but instead is free to “rely on it in whole, in part, or reje ct it completely.” Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991). The trial court properly considered and weighe d the girls’ preference to live with their mother and chose not to a ccept their wishes. We fi nd no error. “[T]he wi shes of a child who has reached the age of discretion, thou gh not controlling, should be cons idered [by the trial court] and given appropriate weight.” Bailes v. Sours, 23 1 Va. 96, 99, 340 S.E.2d 824, 826 (1986). See Code § 20-124.3(8) (In determining the best intere sts of the child, the cour t shall consider “[t]he reasonable preference of the chil d, if the court deems the child to be of reasonable intelligence, understanding, age and expe rience to express such a preference[.]”). The trial court conducted a private, yet supervis ed, interview with the gi rls. Despite that the girls communicated a desire to li ve with their mother, the trial c ourt expressed that it weighed this evidence “in light of all the evid ence” and found that their preferen ce was not reason able. Based on

2 An affidavit prepared by the social worker was admitted for the purpose of showing that she spoke with the children and not for the truth of what was contained th erein. However, she testified at trial and her sworn trial testimony paralleled the informatio n contained in the affidavit.- 8 - the foregoing evidence, we find no abuse of discre tion in the court’ s refusal to foll ow the children’s wishes. Mother contends there was no evidence that “unless [mother] is stopped,” th e girls will be harmed emotionally. The trial cour t found that mother’s behavior w ill eventually le ad to a damaged relationship with their father and a “skewed vision of men in gene ral.” Based upon father’s and stepmother’s testimony that the girls had a change in attitude whenever they returned from a visit with their mother, it is clear that mother had anagenda to undermine their relationship with their father. Testimony from their sister Katie further confirms that moth er harbored derogatory opinions of their father and expressed th ose thoughts in front of the gi rls. Additionally, evidence was presented that one of the daughters was alread y exhibiting disrespectful behavior that was influencing the other child. We find no error in the trial court’s co nclusion that mother’s continued negative influence could potentially damage their relationship with their father. Mother argues that the trial court erred in granting her supe rvised visitation. She contends that she successfully prov ed a change in circumstances that a ffects the well-being of the children and that the trial court erred in li miting her visitation rather than expanding it. Father responds that the change of circumstances supports the finding of so le custody to father. “[T]he parent seeking to obtain a transfer of custody bears the burden to show a change in circumstances following the most re cent custody award.” Hughes v. Gentry, 18 Va. App. 318, 322, 443 S.E.2d 448, 451 (1994 ) (citations omitted). “T he test [for modifying custody] . . . has two prongs: first, has there been a change in ci rcumstances since the most recent custody award; second, would a change in custody be in the best intere sts of the children.” Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983). As previously stated, while mother presented ev idence of a strong, pos itive relationship with her daughters, the court rejected such testimony. The court accepted father’s evidence that mother- 9 - continued to display aberrant behavior that constit uted a negative change in circumstances that was not in the best intere sts of the children. From this record, we find am ple evidence to support that mo ther suffered from a mental illness that was harmful to her children, she sabotag ed father’s parenting, the children’s preference to reside with her was not in thei r best interests, moth er’s behavior will eventually be emotionally harmful to the children, and the trial court properly granted sole custody to father with supervised visitation to mother. CPS Authority Over Visitation Mother contends the trial court erred in c onferring upon CPS authority to set the terms, conditions, and extent of visitati on, which, she argues, is an unauthorized delegation of judicial authority. Rule 5A:20(e) requires that an appellant’ s opening brief contain “‘[t]he standard of review and the argument (including principles of law and authorities) rela ting to each assignment of error.’” Unsupported asserti ons of error ‘do not merit appe llate consideration.’” Jones v. Commonwealth, 51 Va. App. 730, 734, 660 S.E.2d 343, 345 (2008). Mother cites article six of the Virgin ia Constitution and Holland v. Johnson, 241 Va. 553, 403 S.E.2d 356 (1991), as authority fo r her assignment of error. However, mother does not offer any theory of how either the Cons titution or Johnson applies to the facts and issues in this case. “While we may speculate as to how [appellant’s] meager authority relates to h[er] argument, the need for such guesswork on our part necessarily means [appellant] has not complied with the rule.” Sfreddo v. Sfreddo, 59 Va. App. 471, 494, 740 S.E.2d 145, 157 (2012). Where a party’s failure to present authority is significant, we may treat an assignment of error as waived. Parks v. Parks, 52 Va . App. 663, 664, 666 S.E.2d 547, 548 (2008). We find- 10 - appellant’s unsupported assertion of error is significant and treat this assignment of error as waived. Motion for Evaluation Mother contends the trial court erred by failing to order a family and psychological review of the parties’ children. 3 Mother filed a motion for family evaluation on August 10, 2012 requesting that father, his present wife, a nd the two children subm it to physiological and psychiatric examinations pursuant to Code § 63.1-248.14. By order of September 17, 2012, the trial court took the matter “under advisement pending the evidence presented at the upcoming hearing . . . .” Mother never renewed the motion nor asked the trial court to rule on the motion. The trial court never granted or denied the moti on. We have reviewed the file and have found no order addressing the mother’s motion. Therefore, mother has waived this claim because she was required to request a ruling from the trial court and she failed to do so. Becau se the record does not show that the trial court ruled on appellant’s argument, there is no ruling of the trial court for this Court to review on

3 In her brief, mother argu ed the denial of the evaluation deprived her of needed discovery to “amass the evidence necessary to sh ow the condition under which the girls lived at [father’s] home . . . .” Mother did not make the “d iscovery” argument below, nor is it part of this assignment of error. Rule 5A:18 provides, in pertin ent part, 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.” Thus, before we ma y address an argument on a ppeal, an accused must present the specific argument to the trial court th at he wishes to raise on appeal. See Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) ( en banc ). Further, mother did not include this argument in her assignments of error. Rule 5A:20(c) requires us to hold that this issue is waived beca use it is not part of a ppellant’s assignments of error. See Winston v. Commonwealth, 51 Va . App. 74, 82, 654 S.E.2d 340, 345 (2007) (holding that because an appellant did not include an argument in his questions presented (now assignments of error), the Court would not ad dress it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 39 n.4, 542 S.E.2d 785, 789 n.4 (2001) (declining to consider an issue on appeal because it was no t “expressly stated” in the questions presented (now assignments of error)).- 11 - appeal. See Ohree v. Commonwealth, 26 Va . App. 299, 308, 494 S.E.2d 484, 488 (1998); Fisher v. Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993).
ATTORNEY’S FEES ON APPEAL Father asks for an award of attorney’s fees and cost s to pursue this appeal. 4 The rationale for the appellate court being the proper forum to determine the propriety of an aw ard 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 orwhether other reasons exist for requiring additional payment. O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). After considering the record in this case, we grant father’s request for appellate fees. We view all of mother’s assignments of error as w ithout merit. Upon all th e issues properly before this Court, she challenged findings of the trial co urt that are clearly supported by the evidence. On the remaining issues, she failed to preserve the arguments for appellate review. We have no reluctance imposing fees in such circumst ances. Fox v. Fox, 61 Va. App. 185, 208, 734 S.E.2d 662, 673 (2012).
CONCLUSION For the foregoing reasons, the judgment of th e trial court is affirmed. We remand to the trial court to award father attorney’s fees a ssociated with his defens e of all of mother’s arguments on appeal, and for fees a nd costs associated with the remand. Affirmed and remanded.

4 Since this matter did not arise from the juve nile and domestic relations district court, Code § 16.1-278 does not govern the award of a ttorney’s fees. See Lynchburg Division of Social Services v. Cook, 276 Va. 465, 484, 666 S.E.2d 361, 371 (2008).