COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Athey and Senior Judge Haley

Argued at Fredericksburg, Virginia

ROLF PEMBERTON

MEMORANDUM OPINION* BY

v. Record No. 1262-19-4 JUDGE JAMES W. HALEY, JR.

MARCH 31, 2020

KATHRYN MALLEK

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY

Daniel S. Fiore, II, Judge

John K. Cottrell (James Ray Cottrell; Cottrell Fletcher & Cottrell PC, 

on briefs), for appellant.

Camille A. Crandall (Hicks Crandall Juhl PC, on brief), for appellee.

Rolf Pemberton (father) appeals a circuit court ruling denying his “Motion to Enforce 

Visitation Order and Appoint a Reunification Therapist” (father’s/his motion). Father argues that 

the circuit court erred in denying his motion and granting Kathryn Mallek’s (mother) motion in 

limine. Father also challenges the circuit court’s attorney’s fees award to mother. We find no error 

and affirm the decision of the circuit court.

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

UNPUBLISHED
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BACKGROUND1

“On appeal, we view the evidence ‘in the light most favorable to the prevailing party 

below and its evidence is afforded all reasonable inferences fairly deducible therefrom.’” Bedell 

v. Price, 70 Va. App. 497, 500-01 (2019) (quoting Bristol Dep’t of Soc. Servs. v. Welch, 64 

Va. App. 34, 40 (2014)).

The parties married on June 10, 2000, and divorced on July 26, 2016. Three children 

were born of the marriage – one child in 2002 and twins in 2007. On June 23, 2016, the circuit 

court entered an order allowing mother and the children to relocate from Arlington to 

Charlottesville. The circuit court awarded joint legal custody of the children to mother and 

father, primary physical custody to mother during the school year, and primary physical custody 

to father during the summer. The order also included a visitation schedule and directed the 

parties to “select a therapist for the children who specialize[d] in working with children of 

separation and divorce to assist the children.”

Thereafter, the parties had numerous hearings concerning custody and visitation disputes, 

especially the children’s refusal to visit with father. The parties worked with Dr. Christopher 

Lane to address the custody and visitation concerns until December 19, 2016, when the circuit 

court ordered the parties to select a new reunification therapist to replace Dr. Lane. The parties, 

their counsel, and the children’s guardian ad litem agreed to work with a case manager, a 

parenting coordinator, and child/family therapist to address the “children’s ongoing visitation 

resistance and refusal and related issues in the family system.”

1 The record in this case was sealed. Nevertheless, the appeal necessitates unsealing 

relevant portions of the record to resolve the issues appellant has raised. Evidence and factual 

findings below that are necessary to address the assignments of error are included in this opinion. 

Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we 

unseal only those specific facts, finding them relevant to the decision in this case. The remainder 

of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 

(2017).
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On November 28, 2017, the parties appeared before the circuit court for a “review of the 

custody and visitation matters,” and on December 4, 2017, the circuit court entered a “Final 

Custody, Visitation, and Support Order.” The circuit court found that father had “attempted to 

scuttle the process of the children’s relocation to Charlottesville,” but the children were 

“thriving” in Charlottesville. The circuit court further found that father’s “damaged relationship 

with the children” was partially due to his “constant misrepresentation[s]” to mother during the 

marriage about his whereabouts and his “romantic relationship with another woman.” The 

circuit court also found that father “failed to provide the necessary emotional support to the 

children,” and despite the circuit court’s “best efforts to repair [father’s] relationship with the 

children,” he continued “to scuttle the process.” The circuit court modified the previous custody 

and visitation order and held that mother would have “final decision-making” power in situations 

regarding the children. The circuit court also held that father would “have the right to visit with 

the children at their practices, sporting events, ceremonies, or similar curricular and 

extracurricular activities . . . as often as he wishes.” The circuit court ordered father to arrange 

any visitation, outside of his attendance at the children’s activities, directly with the children. 

The circuit court released the case manager, parenting coordinator, and guardian ad litem from 

further involvement with the family.2

On January 23, 2019, father filed his motion, which is the subject of this appeal, and 

alleged that he had had “little contact with his children despite his steady efforts” since the entry 

of the December 4, 2017 order. Father asserted that mother had “outright ignored or simply 

rejected any requests by [f]ather for reunification therapy for the children.” Father requested that 

the circuit court grant his motion to enforce the order, appoint Dr. Cathleen Rea as a 

reunification therapist, and order the parties and children to participate in reunification therapy.

2 Father did not appeal the circuit court’s ruling.
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Mother filed a motion in limine to exclude the testimony of Dr. Lane, whom father

identified as an expert witness. In his discovery responses, father stated that he expected 

Dr. Lane to testify about “the negative impact on the children of not having a relationship with 

their father” and the benefit of working with Dr. Rea in reunification therapy. Mother objected 

to Dr. Lane’s testimony because he had “no new material evidence” to provide the circuit court. 

Dr. Lane had not interacted with the family since November 2017, and mother asserted that 

“Dr. Lane’s efforts to promote reunification were unsuccessful.” After hearing the parties’ 

arguments, the circuit court granted mother’s motion in limine.

The circuit court subsequently heard the parties’ evidence and arguments regarding 

father’s motion. Father asked the circuit court to appoint Dr. Rea as a reunification therapist to 

assist father in coordinating visitation. Mother objected to father’s motion and argued that father 

had not proven any material changes in circumstances since the entry of the last order. The 

circuit court took the matter under advisement and later issued its ruling denying father’s motion. 

The circuit court continued the matter for a ruling on attorney’s fees. The circuit court found that 

father’s motion was “unwarranted” and “lacked a good faith basis,” so it awarded mother 

$11,354.70 in attorney’s fees. This appeal followed.

ANALYSIS

Father’s motion

Father argues that the circuit court erred by denying his motion. Father asserts that he 

was not seeking to modify, but rather enforce, the visitation provisions of the December 2017 

order. He contends, therefore, that the circuit court erred in considering whether there had been 

any material changes in circumstances.

“In matters of custody, visitation, and related child care issues, the court’s paramount 

concern is always the best interests of the child.” Bedell, 70 Va. App. at 504 (quoting Farley v. 
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Farley, 9 Va. App. 326, 327-28 (1990)). “A trial court’s determination with regard to visitation 

is reversible only upon a showing that the court abused its discretion.” Id. (quoting Stadter v. 

Siperko, 52 Va. App. 81, 88 (2008)). “Where the record contains credible evidence in support of 

the findings made by that court, we may not retry the facts or substitute our view of the facts for 

those of the trial court.” Id. (quoting Ferguson v. Stafford Cty. Dep’t of Soc. Servs., 14 Va. App. 

333, 336 (1992)).

The visitation provisions of the December 4, 2017 order stated that father was to arrange 

visitation, beyond his attendance at the children’s extracurricular activities, directly with the 

children. Father had not visited with the children since the entry of the previous order because 

the children would not speak with him. During the hearing on his motion, father told the circuit 

court that they should not be “leaving it just to [the children] to set up the visitation – there has to 

be some mechanism in place for the visitation to be arranged with the children.” He asked the 

circuit court to (1) appoint Dr. Rea as a reunification therapist who could help him arrange 

visitation and (2) order the family, including mother and the children, “to attend reunification 

therapy with Dr. Rea with the goal of establishing and arranging visitation.” Contrary to his 

arguments, father was not seeking to enforce the December 4, 2017 order; rather, he was asking 

for a modification of the order because his attempts to coordinate visitation directly with the 

children had failed. Accordingly, because father was actually seeking to modify the visitation 

order, the circuit court did not err in examining whether there had been a material change in 

circumstances since the last order.

“When a party has filed a petition to modify an existing visitation order, the courts must 

apply the Supreme Court’s two-pronged test enunciated in Keel v. Keel, 225 Va. 606 (1983), to 

determine whether modification of that order is proper.” Rhodes v. Lang, 66 Va. App. 702, 709 

(2016). “That test asks, ‘first, has there been a change in circumstances since the most recent 
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custody [or visitation] award; second, would a change in custody [or visitation] be in the best 

interests of the children.’” Id. (quoting Keel, 225 Va. at 611).

Throughout the hearing, the circuit court asked father about the change in circumstances, 

and despite his argument on appeal that the court applied an incorrect standard, father presented 

evidence about the change in circumstances and argued that his relationship with the children 

had changed since the last court order. He testified that his relationship with the children was 

“basically nonexistent” now and that he no longer had conversations with them because they 

would not speak with him. Father explained that when he had attended the children’s sporting 

events, the children would not speak with him or visit with him. At the conclusion of all of the 

evidence, father asked the circuit court “to enforce its visitation order” because father had not 

visited with the children since the last order and “[t]hat is a huge change in circumstances that 

needs to be addressed.”

In ruling from the bench, the circuit court found that the children were “thriving” and 

“doing very well.” The circuit also found that father’s relationship with his children was “the 

result of his historical interaction with them” and that mother had not interfered with father’s 

relationship with the children. The circuit court noted that nothing in the record suggested that 

there would be a change in father’s relationship with the children if it ordered that the children 

had to be driven to father or forced them to meet with him. The circuit court knew that the 

family had been involved in reunification therapy before, and it did “not know what the 

difference would be here” if they engaged in reunification therapy again. The circuit court 

concluded that “forced visitation is not the answer.” The circuit court found that there were no 

material changes in circumstances and denied father’s motion.

Father’s arguments notwithstanding, the record supports the circuit court’s findings that 

there had been no material changes in circumstances since the last court order. The circuit court 
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found that the issues father raised in his motion were the same issues that the circuit court had 

addressed previously. The circuit court found that “[c]onsiderable time and effort over the 

course of this case [had] been spent on custody, visitation, and reunification.” The circuit court

already had attempted to address father’s visitation struggles by appointing a reunification 

therapist and ordering father to arrange any visitation, beyond his attendance at their 

extracurricular activities, with the children themselves. Despite those efforts, father’s 

relationship with his children had not changed, and father presented no material change in 

circumstances that warranted the appointment of another reunification therapist.

Father further argues that the circuit court’s refusal to appoint a reunification therapist

placed him in “an impossible position” of coordinating visitation with the children because they 

refuse to speak with him. The circuit court, however, made a finding of fact that father’s own 

actions had created the situation. The circuit court further held that there was “nothing in this 

record” to suggest that ordering reunification therapy again would yield a positive result.

Considering the entire record, we cannot say that the finder of fact was plainly wrong (or 

without any credible evidence) to support these findings of fact. Consequently, we hold that the 

circuit court did not err in denying father’s motion.

Mother’s motion in limine

Father argues that the circuit court erred in granting mother’s motion in limine and 

excluding Dr. Lane’s testimony. “Generally, the admissibility of evidence ‘is within the broad 

discretion of the trial court, and a[n] [evidentiary] ruling will not be disturbed on appeal in the 

absence of an abuse of discretion.’” Surles v. Mayer, 48 Va. App. 146, 177 (2006) (quoting 

Blain v. Commonwealth, 7 Va. App. 10, 16 (1988)) (brackets in original).

Father had identified Dr. Lane as an expert witness in his discovery and proffered that he 

expected Dr. Lane to “testify about the negative impact on the children of not having a 
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relationship with their father and why the entire family participating in reunification therapy with 

Dr. Rea would be consistent with their best interests.” Dr. Lane had acted as a reunification 

therapist for the family in 2016, but had not had any contact with the family since the entry of the 

December 2017 order. At the hearing on mother’s motion, father explained that the “limited 

purpose” of Dr. Lane’s testimony was that he was familiar with Dr. Rea’s curriculum vitae and 

could testify “about why this would be a good person to put in place to continue the reunification 

therapy in Charlottesville.” Mother objected to Dr. Lane testifying and argued that the circuit 

court did not “need Dr. Lane to say there’s an expert in Charlottesville who does reunification 

work.” Mother did not object to Dr. Rea’s qualifications or that she had “the capacity to do 

reunification work at all.” Rather, mother objected to participating in reunification therapy “for 

the third time” and having Dr. Lane testify about “what’s right for this family” when he had not 

had any contact with them since 2017.

The circuit court did not abuse its discretion by granting the motion in limine, especially 

considering the “limited purpose” of Dr. Lane’s testimony concerning Dr. Rea’s uncontested 

qualifications and Dr. Lane’s lack of communication with the family in more than one year.

Circuit court’s award of attorney’s fees

Father argues that the circuit court abused its discretion by awarding mother $11,354.70 

for her attorney’s fees. Father asserts that his motion was made in good faith and that he “was 

merely seeking to obtain a needed intervention so he could have visitation with his children.”

“[A]n award of attorney’s fees is a matter submitted to the trial court’s sound discretion 

and is reviewable on appeal only for an abuse of discretion.” Allen v. Allen, 66 Va. App. 586, 

601 (2016) (quoting Richardson v. Richardson, 30 Va. App. 341, 351 (1999)). “An abuse of 

discretion occurs ‘only “when reasonable jurists could not differ”’ as to the proper decision.” Id.

(quoting Brandau v. Brandau, 52 Va. App. 632, 641 (2008)). “[A]fter considering ‘the 
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circumstances of the parties’ and ‘the equities of the entire case,’ a trial court may exercise its 

discretion and issue an award of attorney’s fees and costs that is reasonable ‘under all of the 

circumstances revealed by the record.’” Id. at 601-02 (quoting Mayer v. Corso-Mayer, 62 

Va. App. 713, 734 (2014)).

Mother presented evidence that she had incurred over $20,000 in attorney’s fees and 

costs, which equaled approximately half of her annual gross income. The circuit court stated that 

father’s motion was “unwarranted” and placed mother “in financial hardship” because she had to 

incur “significant attorney’s fees” to “re-litigate” the same issues. The circuit court found that 

father had “failed to recognize the [circuit court’s] prior findings, thus, the motion for 

reunification lacked a good faith basis.” The circuit court found that the issues in father’s 

motion, specifically reunification therapy, were the same as previously ruled upon because “the 

reunification process in this case dates back to March 2017, when [the circuit court] ordered the 

appointment of a reunification therapist to provide reunification therapy for the purposes of 

reunifying [father] and the children.” Considering the totality of the circumstances, the circuit 

court did not abuse its discretion by awarding $11,354.70 to mother for her attorney’s fees.

Appellate attorney’s fees

Both parties requested an award of attorney’s fees and costs incurred on appeal. See

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695 (1996). “The decision of whether to award 

attorney’s fees and costs incurred on appeal is discretionary.” Friedman v. Smith, 68 Va. App. 

529, 545 (2018). Since mother has prevailed in this appeal, we deny father’s request for 

attorney’s fees and costs. Rogers v. Rogers, 51 Va. App. 261, 274 (2008). Having reviewed and 

considered the entire record in this case, we grant mother’s request for a reasonable amount of 

attorney’s fees and costs incurred on appeal. We remand this case to the circuit court for 
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determination and award of the appropriate appellate attorney’s fees and costs, which also should 

include any additional attorney’s fees incurred at the remand hearing. Rule 5A:30(b).

CONCLUSION

For the foregoing reasons, the circuit court’s ruling is affirmed. We remand this case to 

the circuit court for determination and award of the appropriate appellate attorney’s fees, which 

also should include any additional attorney’s fees incurred at the remand hearing.

Affirmed and remanded.