COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, O’Br ien and Senior Judge Bumgardner

DANIEL J. POTAS MEMORANDUM OPINION * v. Record No. 0939- 17-1 PER CURIAM DECEMBER 27, 2017 MARCIA M. POTAS

FROM THE CIRCUIT C OURT OF YORK COUNTY Richard H. Rizk, Judge (Daniel J. Potas, on briefs), pro se . Appellant submitting on briefs. (Kenneth B. Murov; Dougla s J. Walter, Guardian ad litem for minor children; Clancy & Wa lter, P.L.L.C., on brief), for appellee. Appellee and Guardian ad litem submitting on brief.
Daniel J. Potas (father) is appealing a child custody and visi tation order. Father argues that the trial court “violated [his] due process, property, and obli gation of contract rig hts” by (1) “failing to adjudicate his parental fitness” before modifying his visita tion with his children, which was “not in accordance” with the parties’ stipulation an d marital agreem ent dated September 24, 2015 (the Agreement); (2) “depriving him of $9,000 of property by orderin g him to pay the appellee’s attorney fees and an $ 858 rate lock extens ion fee,” which was “ not in accordance” with the Agreement; (3) “ordering him to pay $769 more a month in child support starting on the 1st of October, 2016 than what was previo usly agreed to” in the Agreem ent; and (4) “entering a final order sustaining the previous temporary orders not in accordance” wit h the Agreement. Upon reviewing the record and briefs of the par ties, we conclude that the tria l court did not err. Accordingly, we affirm the decision of the trial court.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - BACKGROUND “On appeal, we view the eviden ce in the light most favorable t o . . . the party prevailing below.” D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 335, 610 S. E.2d 876, 882 (2005) (citations omitted). On February 14, 1999, the parties married. The parties had a son born in 2001 and a daughter born in 2003. On September 24, 2015, the parties ente red into the Agreement, in which they agreed to child custody, v isitation, support, and equitabl e distribution. On D ecember 7, 2015, the trial court entered, nunc pro tunc to September 24, 2015 , the parties’ final d ecree of divorce. The final decree affirmed, ratified, and incorporated the Agree ment. The parties agreed that they would have joint legal custody, and Marcia M. Potas (mother) wo uld have primary p hysical custody of the children. The parties ag reed to a visitation schedule b etween father and the children. Approximately, one month after t he entry of the final decree, the parties filed various pleadings regarding custody and visitation issues. On April 13 , 2016, the parties appeared before the trial court. The trial court temporar ily modified visitati on between father and the children. Father’s overnight vis itation with his daughter was temporarily suspended, and while visitation was permitted with his son , it was not required. The trial court s et a review date for June 29, 2016. The trial court entered an o rder on June 3, 2016, nunc pro tunc to April 13, 2016. On June 29, 2016, the parties appeared before the trial court for a review hearing. The trial court held that the parties woul d continue to have joint legal custody until further order of the court. The trial court also stated th at father’s overnight visitation with his daughte r would remain temporarily suspended. The trial court reduced father’s weekly and weekend visitation with his daughter and ordered that visita tion occur in York County, City of Poquoson, City of Williamsburg, or County of James Cit y. The trial court st ated that there was no required visitation between father- 3 - and his son. The trial court set a review date in September 20 16. The trial court entered an order on August 1, 2016. On September 26, 2016, the parti es appeared before the trial c ourt. The trial court awarded sole legal and physical custody of the children to mother. The trial court continued to suspend temporarily father’s overnight vi sitation with his daughter. T he trial court dete rmined visitation during Christmas and Spring breaks. The trial court again held that there was no required visitation between father and his son. The trial court set another review date in May 2017. The trial court entered a temporary custody and visitation order on November 7, 2016. At the conclusion of the Septe mber 26, 2016 hear ing, the trial court also mod ified child support, at the request of mother, and entered a final child su pport order on Nov ember 9, 2016. Father did not appeal the Novembe r 9, 2016 child support order. On May 10, 2017, the parties appeared before the trial court f or a final custody and visitation hearing. After hearing the evidence and argument, t he trial court reviewed the statutory factors and ruled that mother would have sole legal and physica l custody of the children. The trial court held that father would not have overnight visitation with his daughter and provided a detailed visitation schedule for father w ith his daughter. The trial co urt further stated that there would be no required visitation between father and his son. The trial cour t denied mother’s request for attorney’s fees and costs and divided the guardian ad litem ’s fees between the partie s. On June 6 , 2017, the trial court entered the final or der of custody and visitation. Father timely noted his appeal of the June 6, 2017 order. ANALYSIS “In matters of custody, visitati on, and related child care issu es, the court’s paramount concern is always the best int erests of the child.” Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990).- 4 - “[T]here is a presumption on appeal that the trial court thorou ghly weighed all the evidence, considered the statut ory requirements, and made its d etermination based on the child’s best interests.” D’Ambrosio, 45 Va. App. at 335, 610 S.E.2d at 882 (citing Brown v. Spotsylvania Dep’t of S oc. Servs., 43 Va. App. 205, 211, 597 S. E.2d 214, 217 (2004)). “As long as evidence i n the record supports t he trial court’s r uling and the trial court has not abused its discretion, its r uling must be affirmed on appea l.” Brown v. Brown, 30 Va. App. 532, 538, 518 S.E.2d 336, 338 (1999). Assignments of error #1 and 4 Father argues that the trial court erred by modifying custody and visitation. He contends the trial court violated his right s by “failin g to adjudicate his p arental fitness” before modifying his visitation. He contends the trial court erred by entering orde rs that were “not in accordance with [the Agreement] previously and l egally entered into by both par ties.” With respect to father’s allegat ion that his due process right s were violated, the Virginia Constitution states that “no person shall be deprived of his li fe, liberty, or property without due process of law . . . .” Va. Const. art. I, § 11. “All the auth orities agree that due process of law requires that a person shall have reasonable notice and a reaso nable opportunity t o be heard before an impartial tribunal, before an y binding decree can be passed affecting his right to liberty or property.” Tidwell v. Late, 67 V a. App. 668, 687, 799 S.E.2d 6 96, 705 (2017) (quoting Menninger v. Menninger, 64 Va. Ap p. 616, 621, 770 S.E.2 d 232, 235 (2015)) . “A day in court, an opportunity to be heard, is an integral pa rt of due process of law.” Id. ( quoting Menninger, 64 Va. App. at 621, 770 S.E.2d at 235). Contrary to father’s arguments, his due process rights were no t violated. Father had notice of each hearing and ha d the opportunity to be heard. He presen ted evidence and argument. The trial court listened to all evidence and argument prior to maki ng its rulings.- 5 - Father further argues that the trial court erre d by modifying the parties’ Agreement regarding custody and visitation. However, the trial court inc orporated the Agreement into the final decree of divorce. Accordingly, i t was subject to modification pursuant to Code § 20-108, which

states: The court may, from time to time after decreeing as provided in § 20-107.2, on petition of either of the parents, or on its own motion or upon petition of any proba tion officer or the Departm ent of Social Services, which petiti on shall set forth the reasons for the relief sought, revise a nd alter such decree concerning the care , custody, and maintenance of the children and make a new decree concerning the same, as the circ umstances of the parents and th e benefit of the children may require. “When a trial court has entere d a final custody and visitation order, it cannot be modified absent (i) a showing of changed c ircumstances under Code § 20-1 08 and (ii) proof that the child’s best interests under Code § 20-124.3 will be served by the modification.” Petry v. Petry, 41 Va. App. 782, 789, 589 S.E.2d 458, 462 (2003). Contrary to father’s arguments, a court does not need to find a parent unfit prior to modifying custody and visitation between the parents. Here, the trial court found that there was a material change i n circumstances because the parties’ communication deteriorat ed and father’s words and acti ons were negatively impacting the children. The trial court found that father did not fully appr eciate how his words and actions affected the children. Throughout the process, the trial court gave father opport unities to improve his relationship with his childre n, but to no avail. For insta nce, the trial court provided for therapy between father and the children, but father was not cooperative . At the September 26, 2016 hearing, the trial court told father, “It ’s what you want and almost an imposition of your w ill, your desires on everybody else and they have to s uccumb to it.” At the May 10, 2017 hearing, the trial court stated, “And the Court finds that based on the evidence that’s been pre sented over the course of the hearings over these past two years, Mr. Potas, with all due res pect to you, . . . it’s clear to the Court- 6 - that you’ve been very controllingof not only your former wife but your children.” The trial court concluded: [T]here has been a disconnect a s it relates t o your ability to fully understand your words and your actions and how that has negatively impacted the well-be ing of your children and to reso lve disputes and prioritize their ne eds along the way. The Court h as repeatedly seen that before the f irst hearing and since with th ese temporary orders. At the May 10, 2017 he aring, the trial court reviewed each of the factors from Code § 20-124.3 and determined that it was in the best interests of the children to modify custody and visitation. Based on the record, the trial court did not err i n modifying custody and visitation. Assignment of error #2 Father argues that the trial co urt erred by ordering him to pa y $858 for a rate lock extension fee and $9,000 of mothe r’s attorney’s fees because the court’s order violated the terms of the Agreement. Mother filed a petition for rule to show cause and argued that father owed her $858 for a rate lock extension fee. Pursuant to the Agreement, mother was requ ired to refinance the mortgage on the former marital residence. Si nce father did not timely endo rse the deed conveying his interest in the property to mother, mother’ s closing did not occur as sched uled, and she was f orced to pay $858 for the rate lock exte nsion. At the April 13, 2016 hearing, th e trial court found that father owed mother $858. Father did not note his exce ption to the order fr om the April 13, 2016 hearing. In fact, he did not make known hi s objection until th e June 6, 201 7 order. Moreover, at the June 29, 2016 hearing, mother’s attorney info rmed the trial court that father paid the $858 fee. “Voluntary payment of a judgment dep rives the payor of the right of appeal.” Citizens Bank & Trust Co. v. Crewe Factory Sales Corp ., 254 Va. 355, 355, 492 S.E.2d 826, 826 (1997) (citing Carlucci v. Duck’s Real Estate, Inc., 2 20 Va. 164, 166, 257 S.E.2d 763, 765 (1979)).- 7 - At the conclusion of the April 13, 2016 hearing, the trial cou rt took under advisement mother’s request for attorney’s fees. At the June 29, 2016 hearing, the trial court heard evidence that father engaged in numerous communications w ith mother’s at torney, which caused her to incur greater expenses. The trial court ordered father to pay $9,000 toward mother’s attorney’s fees. Father did not note his objection to the ruling and waived his endorsement of the order from the June 29, 2016 hearing. As with the rate extension fee, father did not make known his objection about the award of a ttorney’s fees until the June 6, 2017 order

. This Court will not consider a claim of trial court error as a ground for reversal “where no timely objection was made, except to attain the ends of justice .” Marshall v. Commonwealth, 26 Va. App. 627, 636, 496 S.E.2d 120, 125 (1998) (citing Rule 5A:1 8). “To be timely, an objection must be made when the occasion arises – at the time the evidenc e is offered or the statement made.” Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2 d 167, 168 (1986). Father did not make a timely objection to the trial court’s order thathe pay mother $858 for the rate extension fee or $9,00 0 for her attorney’s fees. Therefore, th is Court will not consider father’s arguments in the second assignment of error. Assignment of error #3 Father argues that the trial co urt erred by ordering him to pa y more child support than what the parties agreed to in the Agreement. He further asserts tha t he was not served with the m otion to amend child support. He noted his objections on the June 6, 20 17 custody and visitation order. The trial court entered a final child support order on Novembe r 9, 2016. Father did not appeal that order. 1 Rule 1:1 states, “All final judgments, orders, and decrees, i rrespective of terms of court, shall remain under the control of the trial cou rt and subject to be modified,

1 Father did appeal the amended c hild support order entered on J uly 12, 2017. See Potas v. Potas, Record No. 1242-17-1.- 8 - vacated, or suspended for twenty- one days after the date of ent ry, and no longer.” After the expiration of twenty-one da ys, or by November 30, 2016, the chi ld support order was final. As with the orders regarding the late extension fee and attorn ey’s fees, father’s objections to the child support or der were not timely, and this Court will no t consider father’s arguments in the third assignment of error. Attorney’s fees and costs Mother asks this Court to awar d her attorney’s fees and costs i ncurred on appeal. See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Having reviewed and considered the entire record in this case, we hold that mot her is entitled to a reasonable amount of attorney’s fees and cos ts, and we remand for the tria l court to set a reasonable award of attorney’s fees and costs incu rred by mother in this appeal. Rule 5A:30(b). CONCLUSION For the foregoing reasons, the t rial court’s ruling is affirme d. We remand this case to the trial court for determination a nd award of the app ropriate appe llate attorney’s f ees and costs, which also should include any addi tional attorney’s fees and co sts incurred at the remand hearing. Affirmed and remanded.