                                              COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Beales and Decker
              Argued at Salem, Virginia
UNPUBLISHED




              ADAM CHRISTOPHER ARMSTRONG
                                                                              MEMORANDUM OPINION* BY
              v.      Record No. 0141-18-3                                    JUDGE RANDOLPH A. BEALES
                                                                                  OCTOBER 30, 2018
              KRISTY MARIE ROADCAP


                                  FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                                               Bruce D. Albertson, Judge

                                Shelly R. James (John Elledge & Associates, on briefs), for
                                appellant.

                                Derrick W. Whetzel (GravesWhetzel Law, PLLC, on brief), for
                                appellee.


                      On January 3, 2018, the Rockingham County Circuit Court entered a protective order

              against Kristy Roadcap (“mother”) prohibiting “acts of family abuse or criminal offenses that result

              in injury to person or property” and prohibiting contact of any kind with Adam Armstrong

              (“father”). Father argues on appeal that the “trial court erred when it failed to include the parties’

              child in the protective order that was issued by that court because the evidence was sufficient to

              prove that such relief was needed to protect the child.”




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        I. BACKGROUND1

         Father and mother were married on May 16, 2015, and their daughter was born in the

summer of 2016.2 During their marriage, father and mother separated and subsequently

reconciled numerous times, including before and after the child was born. On August 1, 2016,

father and mother signed a custody agreement, giving both parents “shared physical and legal

custody and equal time with [the child].” As the interactions between them became more and

more hostile over time, father on November 27, 2017, filed a petition for a protective order. The

juvenile and domestic relations district court issued a protective order for both father and the

child, prohibiting mother from contacting either of them. Mother appealed to the circuit court.

During the ore tenus hearing before the circuit court on January 3, 2018, regarding father’s

petition for a protective order, both parties provided a considerable amount of testimony

concerning their tempestuous relationship. On that same day, the circuit court issued a protective

order prohibiting mother from contacting father only – not the child. Father subsequently

appealed to this Court the circuit court’s ruling that did not include the child in the protective

order.

         In this appeal, we focus on the incidents most pertinent to any potential danger the child

faced from mother’s actions. We note that we can consider only the record before us – i.e., only

the facts presented to the circuit court as of January 3, 2018, that are in the record on appeal.



         1
          The record in this case was sealed. Nevertheless, the appeal necessitates unsealing
relevant portions of the record for purposes of resolving the issues raised by appellant. Evidence
and factual findings below that are necessary in order to address the assignment 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, 805 S.E.2d 775, 777 n.1 (2017).
         2
         We refer to their daughter in this opinion as “the child,” instead of the child’s actual
name, in an attempt to better protect her privacy.
                                                -2-
       Father testified that, on multiple occasions, mother entered his house while the child was

with father – and without father’s permission or invitation. In September 2016, when the child

was with father, mother came to father’s house at 3:00 a.m. and began to knock loudly on his

door. He opened the door to find her drunk and unwilling to leave. She entered his bathroom,

vomited, and, after some time, finally departed. In May 2017, after father answered the door to

find mother there, he testified that mother pushed her way past him to enter the house, made her

way into the living room, and engaged in a conversation during which she stated that she hated

that house and often thought of burning the house down with father and the child in it. However,

in her testimony, mother denied ever threatening to burn down father’s house. 3 Father testified

that in June 2017, after he would not allow mother to enter his house at approximately 5:30 a.m.,

mother called the police, who then came to the house with her, helped provide her entry into his

house, and then allowed her to “take any and everything she wanted.” Father testified that he

was not aware anyone was in his home until he heard footsteps coming up his stairs. Mother’s

testimony regarding this incident was that she sought to retrieve her work laptop and other

belongings from father’s house at approximately 5:30 a.m. after father had forced her to leave

the previous night. When he would not allow her to enter the house or even agree to place her

belongings outside the house for her to retrieve, mother testified that she called the police, who

came to the house and “did stand by” while she entered the home and retrieved her belongings.

       Father also testified that mother had been in multiple car accidents since the time he had

known her, including at least one accident in September 2017 that was described by father as a

“car-totaling accident.” When father saw the child after that car-totaling accident, she had a

black eye, which led father to believe she was in the car when the accident occurred. Father



       3
        Mother was asked, on direct examination, “Have you ever threatened to burn [father’s]
house down?” Mother answered “No.”
                                           -3-
testified that mother denied that the child was in the car when the accident occurred.4 A witness

for mother testified that the child received the black eye as a result of falling out of a chair while

at the beach.

       In November 2017, according to both parties’ testimony, mother and father met in a

7-Eleven parking lot to exchange the child. Father was already in the parking lot when mother,

with the child in her car, pulled into a parking space a few spaces away from father’s car. As

father approached mother’s car to retrieve the child, mother quickly exited her car without

putting the car in park. The car lurched forward, moving toward the highway, and mother

jumped back into the driver’s seat and stopped the car. Father then took the child out of

mother’s vehicle and took her with him.

                                           II. ANALYSIS

                   When reviewing a trial court’s decision on appeal, we view the
                evidence in the light most favorable to the prevailing party,
                granting it the benefit of any reasonable inferences. That principle
                requires us to “‘discard the evidence’” of the appellant which
                conflicts, either directly or inferentially, with the evidence
                presented by the appellee at trial.

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003) (citations omitted)

(quoting Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)). In our

review, we are bound by the factual findings of the trial court, and “a trial court’s judgment will

not be disturbed on appeal unless plainly wrong or without evidence to support it.” Reece v.

Reece, 22 Va. App. 368, 372, 470 S.E.2d 148, 151 (1996). In this case, we note that, although

father prevailed in obtaining the protective order, we consider the evidence in the light most

favorable to appellee, mother, because she prevailed on the issue in the only assignment of error




       4
          Mother did not testify about this car accident or testify as to whether the child was in the
car at the time of the accident.
                                                 -4-
before us – the circuit court’s decision not to include the child in the protective order that it

issued.

          The statute dealing with such protective orders authorizes courts to issue protective

orders in order to protect the health and safety of the petitioner and family or household members

of the petitioner. Code § 16.1-279.1. In this case, the circuit court found that both parties had

“substantial credibility issues.” In making its ruling, the circuit court noted that father had a

corroborating witness and noted mother’s “erratic behavior, her emotional outburst, the vitriol

that she shows against [father].” Ultimately, the circuit court found these factors “pushe[d] the

[father] barely over” the threshold required for him to obtain a protective order, emphasizing that

a preponderance of the evidence standard is “as if you’re talking 50.01 percent to 49.99 percent.”

However, the court also stated that it had not heard any evidence to lead it to believe the child

should be included in the protective order.

          Considering the evidence in the light most favorable to mother, as we must because she

prevailed below on this issue now on appeal, there is very little in the record to establish a threat

by mother to the child. A statement by mother that she thought of burning father’s house down

with him and the child in it would, of course, be grounds for concern for the safety of the child

(as well as the safety of father). However, mother denied that she made that statement, and

because, as noted supra, we must discard on appeal the evidence of appellant which conflicts

with that of appellee, we cannot assume otherwise on appeal because we are not the factfinder.

While plenty of testimony was provided concerning the hostility of mother towards father, aside

from the denied allegation concerning her threat to burn down father’s house, father makes no

other allegation that is in the record that demonstrates hostility on the part of mother towards her

child since she was born – beyond the hostility that mother has already shown towards father.

Even though mother may be a poor driver or may exhibit poor judgment and hostility in her

                                                 -5-
interactions with father, we cannot say that the circuit court’s decision not to include the child in

the protective order was plainly wrong.

        Finally, appellee requests an award of attorney’s fees incurred on appeal. Considering

the record before us in its entirety, we decline to award attorney’s fees on appeal. See

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).

                                        III. CONCLUSION

        In short, on appeal, we must consider the evidence in the light most favorable to mother

as the prevailing party below on the issue now before us. While most of the testimony presented

to the circuit court concerned the volatile relationship and interactions between father and

mother, there was very little evidence presented of any animosity by mother directly toward their

daughter. The circuit court, as factfinder, found that mother’s “erratic behavior, her emotional

outburst, [and] the vitriol that she shows against [father]” just barely merited that father have a

protective order against her. At the same time, however, the circuit court found that both parties

lacked credibility and that there was not enough evidence to also include the child in the

protective order. Because we find that the circuit court’s decision not to include the child in the

protective order was not plainly wrong or without evidence to support it, we affirm the decision

of the circuit court.

                                                                                           Affirmed.




                                                -6-
