                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Huff and Chafin
UNPUBLISHED


              Argued at Chesapeake, Virginia


              C. JASON CONGLETON
                                                                              MEMORANDUM OPINION * BY
              v.     Record No. 1413-12-1                                      JUDGE TERESA M. CHAFIN
                                                                                    APRIL 9, 2013
              JADE CONGLETON


                               FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                             Marjorie T. Arrington, Judge

                               Kristi A. Wooten (Brent L. Rowlands; Wooten & Shaddock, PLC,
                               on brief), for appellant.

                               Robert L. “Bo” Foley (Valerie B. Foley; Foley Burks, P.C., on
                               brief), for appellee.

                               (Erin Evans-Bedois; MacDonald, Plumlee & Overton, P.C., on
                               brief), Guardian ad litem for the minor children.


                     C. Jason Congleton (“appellant”) appeals an order from the Circuit Court of the City of

              Chesapeake (“circuit court”) granting primary physical custody of his two daughters to their

              mother, Jade Congleton (“appellee”), who lives in New York. Appellant argues that the circuit

              court erred in making its custody ruling based on insufficient evidence and without applying the

              correct legal standard. Specifically, he contends that the circuit court failed 1) to find a material

              change of circumstances justifying a custody modification, and 2) to determine and properly

              weigh the benefits and disadvantages to the children resulting from this custody modification in




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
its best interest analysis. 1 As appellant failed to object to the circuit court’s holdings concerning

a material change of circumstances or its best interest analysis, Rule 5A:18 prohibits us from

considering these arguments. Furthermore, Rule 5A:20 prohibits us from considering any

argument made by appellant on the issue of relocation.

                    I. Material Change of Circumstances and Best Interest Analysis

        Rule 5A:18 states 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.” The

purpose of this rule is “to allow the trial court to cure any error called to its attention, thereby

avoiding unnecessary appeals and retrials.” Herring v. Herring, 33 Va. App. 281, 286, 552

S.E.2d 923, 927 (2000) (citation omitted). “In addition, a specific, contemporaneous objection

gives the opposing party the opportunity to meet the objection at that stage of the proceeding.”

        1
            Appellant’s assignment of error in its entirety states:

                  The trial court has erred in making the custody ruling, without
                  sufficient evidence and without applying the correct legal standard,
                  and has failed to make affirmative findings to establish the
                  prerequisite:

                          a. first prong “material change of circumstances” needed to
                          overcome the benefits and protections of the “status quo”
                          stability of the children;

                          b. a second prong “best interests” determination:

                                  i. without determining the required “separate
                                  independent benefit to the children,” after making
                                  findings to the contrary; and

                                  ii. without weighing “any benefits to the custodial
                                  parent that inure to the benefit of the children
                                  against the deleterious effects, including an adverse
                                  impact upon the relationship, between the child and
                                  the non-custodial parent.”

(Citations to the record omitted).
                                                    -2-
Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). Rule 5A:18 applies to all

types of cases. See Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc).

       In the present case, appellant conceded at oral argument that he never objected to the

circuit court’s failure to find a material change of circumstances. Additionally, appellant failed

to object to the circuit court’s best interest analysis based on the factors set forth in Code

§ 20-124.3 or any other factors. Although appellant noted several objections to the circuit

court’s decision, these objections concerned specific factual findings of the circuit court and its

failure to treat the case as a relocation case and make certain determinations in that context.

These objections did not address the best interest analysis applied by the circuit court or its

ultimate custody and visitation determination based on that analysis. Accordingly, appellant’s

failure to object bars appellate review of these issues under Rule 5A:18.

       Appellant argues, however, that the good cause and ends of justice exceptions to Rule

5A:18 excuse his failure to object. Neither exception applies.

       “Rule 5A:18 recognizes that this Court may consider an alleged error that was not timely

and specifically objected to when ‘good cause is shown . . . .’ [This] good cause exception is

applied when an appellant did not have the opportunity to object to an alleged error during the

proceedings below.” Flanagan v. Commonwealth, 58 Va. App. 681, 694, 714 S.E.2d 212, 218

(2011). 2 The record shows that appellant had numerous opportunities to object in this case. The

appellant could have noted his objections at the February 3, 2012 hearing. 3 In fact, he made

multiple objections throughout this hearing and following the circuit court’s decision. Therefore,



       2
         See also Code § 8.01-384(A) (providing, in pertinent part, that “if a party has no
opportunity to object to a ruling or order at the time it is made, the absence of an objection shall
not thereafter prejudice him on motion for a new trial or on appeal”).
       3
        Appellant could have noted his objections concerning a material change of
circumstances at either the October 28, 2011 hearing or the February 3, 2012 hearing.
                                               -3-
as appellant had an adequate opportunity to object, the good cause exception does not excuse his

failure to do so under the facts of this case.

        The ends of justice exception to Rule 5A:18 also does not apply in this case.

                The ends of justice exception is narrow and is to be used sparingly.
                It is a rare case in which, rather than invoke Rule 5A:18, we rely
                upon the exception and consider an assignment of error not
                preserved at trial. In order to avail oneself of the exception, [an
                appellant] must affirmatively show that a miscarriage of justice has
                occurred, not that a miscarriage might have occurred. The trial
                error must be clear, substantial and material.

Redman v. Commonwealth, 25 Va. App. 215, 220-21, 487 S.E.2d 269, 272 (1997) (emphasis in

original) (internal quotation marks omitted).

        Appellant has not shown that a miscarriage of justice has occurred in this case. Although

he claims that the circuit court erred by failing to find a material change of circumstances prior to

modifying custody and visitation, the record shows that many circumstances had changed in this

case since the entry of the last final order concerning these issues. 4 A material change of

circumstances “‘incorporates a broad range of positive and negative developments in the lives of

children.’” Sullivan v. Jones, 42 Va. App. 794, 806, 595 S.E.2d 36, 42 (2004) (quoting Parish v.

Spaulding, 26 Va. App. 566, 573, 496 S.E.2d 91, 94 (1998)). In this case, appellee had moved to

New York and lost custody and visitation of the children since entry of the last final custody and

visitation order. Moreover, appellant conceded that a material change of circumstances had

occurred when he petitioned the circuit court for temporary custody of the children upon filing

for divorce. He also expressly conceded this issue when arguing for custody at the October 28,


        4
          Although appellant seems to argue that there has been no material change of
circumstances since the entry of the December 30, 2009 pendente lite order, such temporary
orders have “no presumptive effect and [are] not determinative when adjudicating the underlying
cause.” See Code § 20-103(E). The only final order entered in this case prior to the February 3,
2012 custody determination was entered by the Chesapeake Juvenile and Domestic Relations
District Court in March 2009. Therefore, any material change of circumstances must be
measured from the entry of that order rather than the pendente lite order.
                                                -4-
2011 hearing, stating that “[c]ircumstances have changed” since the children were last in the

custody of appellee. Assuming without deciding that the circuit court erred by failing to

expressly find a material change of circumstances, such error would not constitute a miscarriage

of justice given the ample evidence, including appellant’s own concessions, of a material change

of circumstances in this case. Therefore, we refuse to apply the ends of justice exception to

excuse appellant’s failure to object concerning this issue.

       Furthermore, appellant has not shown that the circuit court’s best interest analysis and

custody determination constitute a miscarriage of justice. In this case, the circuit court addressed

each of the factors enumerated in Code § 20-124.3 in making its custody decision and recited the

evidence it considered for each factor. Although the circuit court considered many of these

factors to be “even” between the parties, it placed great weight on factor six, concerning the

propensity of each parent to actively support the children’s relationship with the other parent.

The circuit court held that appellee was more likely than appellant to support a relationship

between the children and their other parent, and this conclusion was supported by evidence of

appellant’s failure to facilitate visitation between appellee and the children when the children

were in his custody. We decline to apply the ends of justice exception under these

circumstances.

             II. Specific Determinations in the Circuit Court’s Best Interest Analysis

       The second prong of appellant’s assignment of error indirectly presents a relocation

argument within the context of a best interest analysis in a child custody determination.

Appellant argues that the circuit court failed to determine a “separate independent benefit to the

children” or weigh “any benefits to the custodial parent that inure to the benefit of the children

against the deleterious effects, including an adverse impact upon the relationship, between the

child and the non-custodial parent” when conducting its best interest analysis. These specific

                                                -5-
findings are often made in relocation cases, where a custodial parent seeks to relocate to a new

area with a child. See, e.g., Judd v. Judd, 53 Va. App. 578, 588, 673 S.E.2d 913, 917-18 (2009);

Wheeler v. Wheeler, 42 Va. App. 282, 290, 591 S.E.2d 698, 702 (2004); Petry v. Petry, 41

Va. App. 782, 789, 589 S.E.2d 458, 462 (2003).

       Throughout his brief, appellant takes issue with the circuit court’s failure to treat the

present case as a relocation case and to apply these relocation factors in its best interest

determination. Appellant, however, failed to assign error to the circuit court’s refusal to treat the

present case as a relocation case or to make determinations on these issues in that context. Rule

5A:20(c) requires an appellant to include a statement of the assignments of error in his opening

brief. As appellant failed to assign any error to the circuit court’s holdings concerning

relocation, Rule 5A:20(c) requires us to hold that these issues are waived. See Winston v.

Commonwealth, 51 Va. App. 74, 82 n.4, 654 S.E.2d 340, 345 n.4 (2007) (holding that an

appellant’s argument not included in his questions presented was waived on appeal).

                                           III. Conclusion

       As appellant failed to object to the circuit court’s holdings concerning a material change

of circumstances and its best interest analysis, Rule 5A:18 bars our consideration of these issues.

Further, the good cause and ends of justice exceptions to Rule 5A:18 do not excuse appellant’s

failure to object under the facts of this case. Due to appellant’s failure to assign error to the

circuit court’s holding concerning relocation, Rule 5A:20 bars appellate consideration of the

remainder of appellant’s arguments. For these reasons, we decline to address appellant’s

arguments and affirm the circuit court’s decision.

                                                                                               Affirmed.




                                                  -6-
