                      COURT OF APPEALS OF VIRGINIA


Present:   Judges Coleman, Annunziata and Senior Judge Cole


THOMAS J. GOUDREAU
                                          MEMORANDUM OPINION * BY
v.   Record No. 1036-00-4                       PER CURIAM
                                             DECEMBER 12, 2000
KATHERINE LYNN GOUDREAU


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Arthur B. Vieregg, Judge

           (Carl P. Horton, on brief), for appellant.

           (James Ray Cottrell; Christopher W.
           Schinstock; Gannon, Cottrell & Ward, P.C., on
           brief), for appellee.


     Thomas J. Goudreau (father) appeals from an order of the

Fairfax County Circuit Court adjudicating a motion for restraining

order and sanctions filed by Katherine Lynn Goudreau (mother).

Father contends the circuit court erred by 1) refusing to grant

him a continuance; 2) addressing issues beyond the scope of

mother's motion and demonstrating animus toward father; 3)

granting partial relief to mother; and 4) making an award of

attorney's fees to mother.   Upon reviewing the record and the

briefs of the parties, we conclude that this appeal is without

merit.   Accordingly, we summarily affirm the judgment of the

circuit court.   See Rule 5A:27.


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

     On June 29, 1999, the circuit court entered an order that

permitted mother to relocate to Utah with the couple's two

children and awarded mother sole custody of the boys.   Mother

subsequently filed a motion for restraining order and sanctions

wherein she contended that father was sending her harassing

emails, interfering with her authority as the children's sole

custodian, and engaging in unsolicited and unwanted communications

with mother's attorney and with third parties regarding the

couple's children.   Mother asked the court to enjoin father from

sending unsolicited communications to her or any third party,

including her attorney, regarding the children, with limited

exceptions.    She moved the court to prohibit father from taking

the children to any medical care provider except in cases of

emergency.    Mother also asked for an award of attorney's fees and

costs connected with pursuing the motion.

     The February 25, 2000 hearing on mother's motion was

scheduled for thirty minutes.   Father moved for a continuance on

the ground that he needed more time to review a collection of

emails he had sent that mother had compiled into an exhibit book.

Father further asserted that he wanted to depose the doctor with

whom mother alleged father was having inappropriate

communications.    The court denied the motion, finding that thirty

minutes would suffice for the hearing and that mother, who was


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living in Utah, would face a hardship at having to return to

Virginia for another hearing.

     One of the issues addressed during mother's subsequent

testimony was father's opposition to one of the children

undergoing an adenoid tonsillectomy.   Mother stated that this

procedure had been recommended by a physician and that she had

advised father of this on January 10, 2000.   She testified that at

a January 20, 2000 hearing, the court had indicated that, as sole

custodian, it was ultimately mother's decision whether the child

would undergo the surgery.   Nevertheless, at father's request,

mother sought a second opinion.   The second physician also

recommended the surgery.   Mother subsequently learned that, while

the child was visiting father in Virginia, father took him to a

local physician for another opinion on the proposed surgery.     This

consultation was undertaken without mother's knowledge or consent.

     Mother testified regarding conversations she had with the

children's physician pertaining to communications between the

physician and father.   The trial court ruled, however, that it was

not receiving this testimony for the substance of the reported

contacts.

     Mother submitted into evidence a notebook containing emails

and other written communications sent by father to her and various

third parties.

     Father denied harassing or receiving any complaints from

healthcare providers regarding his communications with them.     On
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cross-examination, father agreed that he would no longer contact

counsel for mother directly unless he was proceeding pro se.

     The circuit court found that father had "engaged in a

vendetta with his former wife, characterized by sending

accusative, sarcastic, bullying, and otherwise wholly

inappropriate E-mails, which strongly suggest that he is

emotionally incapable of participating in a constructive

consultation with his ex-wife in the best interests of his

children."   Nevertheless, the court refused to prohibit father

from communicating with mother via email.    The court also refused

to prohibit father from communicating with doctors and school

officials regarding the couple's children.

     The court did enjoin father from communicating directly with

mother's attorney.   And the court found that father had violated

the court's order granting mother sole custody of the children by

unilaterally obtaining a second medical opinion regarding the one

son's proposed adenoid tonsillectomy.

     The court awarded legal fees to mother, the amount of which

was litigated at a separate hearing.

                                II.

     "The decision to grant a continuance is within the sound

discretion of the trial court and its ruling will be overturned

only 'if it is plainly erroneous and upon a showing of abuse of

discretion and resulting prejudice to the movant.'"     Ohlen v.

Shively, 16 Va. App. 419, 422, 430 S.E.2d 559, 560 (1993)
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(quoting Mills v. Mills, 232 Va. 94, 96, 348 S.E.2d 250, 252

(1986)).

     Mother filed her motion for a restraining order on February

8, 2000, and father was put on notice that his communications

with the children's physicians would be at issue.   There is

nothing in the record indicating that father made any effort to

depose any witnesses prior to the February 25 hearing.

Moreover, father has failed to establish how he was prejudiced

by the court's ruling.   Mother was not able to present any

evidence that father was harassing medical providers and, other

than requesting the opportunity to depose witnesses, father did

not advise the court that he had any additional evidence he

wanted to present.   Accordingly, the trial court did not abuse

its discretion when it refused to continue the matter.

                               III.

     Father contends the court erred by going beyond the scope

of mother's motion and asserts the court demonstrated an animus

toward him.   In his exceptions to the court's order, father did

not assert that the court had taken any action beyond the scope

of that requested by mother.   Father did state that mother's

exhibits "taken one at a time, do not justify the Court's

reaction against [father]."

     Although the court expressed a belief that father was

acting inappropriately in his relationship with mother, the

court did not impose any limits on father's communications with
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mother, school officials, or medical care providers.     Father's

assertion that the court let its passions dictate its decision

is without support in the record.      In addition to the fact that

the court did not grant any relief beyond that requested in

mother's motion, father did not state this particular objection

to the circuit court and thus failed to preserve it for appeal.

See Rule 5A:18.

                                 IV.

     Father contends the court erred in granting partial relief

to mother.   The only relief the court granted mother was

enjoining father from directly contacting mother's attorney.

Father had agreed during the hearing that he would no longer

engage in this behavior.   Accordingly, this assignment of error

is without merit.

                                 V.

     "An 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."    Graves v. Graves, 4 Va. App. 326,

333, 357 S.E.2d 554, 558 (1987).

     The court found that father violated the order awarding

mother sole custody of the couple's children by unilaterally

seeking a second medical opinion for the one son's proposed

tonsillectomy.    And father waited until near the end of the

hearing before he agreed to stop sending unsolicited faxes to

mother's attorney.   Finally, while the court denied mother much
                               - 6 -
of the relief she sought, it found merit in mother's claims that

father's communications with her and others were occasionally of

a harassing nature.   Under the circumstances, we cannot state

that the trial court abused its discretion in awarding mother

attorney's fees. 1

     Mother has requested an award of attorney's fees for

defending this appeal.   Upon consideration of the entire record

in this case, we hold that she is entitled to a reasonable

amount of additional attorney's fees, and we remand for an award

of further costs and counsel fees incurred in this appeal.    See

O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98 (1996).

     For the foregoing reasons, the judgment of the circuit

court is affirmed, and the matter is remanded for an award of

costs and fees.

                                            Affirmed and remanded.




     1
       Mother moved to dismiss the appeal on the ground that
father failed to file the transcript from the April 21, 2000
hearing, where the circuit court accepted evidence regarding the
amount of attorney's fees to which mother was entitled. On
appeal, father challenges the court's decision to award
attorney's fees, but not the amount awarded. Accordingly, the
April 21 transcript is not necessary to adjudicate the appeal,
and mother's motion to dismiss is denied.
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