                                COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Huff and Senior Judge Clements


BRYAN B. BRITTAIN
                                                                 MEMORANDUM OPINION *
v.      Record No. 1944-10-4                                         PER CURIAM
                                                                   DECEMBER 20, 2011
APRIL J. BRITTAIN


                     FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                                William T. Newman, Jr., Judge

                  (Sandra L. Havrilak; Lindsay M. Jefferies; The Havrilak Law Firm,
                  P.C., on brief), for appellant.

                  (Matthew S. McConnell, on brief), for appellee.


        Bryan B. Brittain (father) appeals an order granting April J. Brittain’s (mother) motion to

strike father’s petition to modify custody. Father argues that the trial court erred by (1) excluding

police reports from evidence when the reports were properly authenticated according to Code

§ 8.01-390; (2) refusing to permit the parties’ thirteen-year-old daughter to testify about her custody

preference without making a finding that she was not of reasonable intelligence, understanding, age,

and experience to express a preference pursuant to Code § 20-124.3(8); and (3) concluding father

failed to meet his burden that a material change of circumstances occurred warranting modification

of the prior custody order and granting mother’s motion to strike. Upon reviewing the record and

briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily

affirm the decision of the trial court. See Rule 5A:27.




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

       The parties were married on July 7, 2001, separated on December 19, 2006, and divorced

on March 25, 2008. The parties have three minor children. 1

       During their separation, the parties participated in a custody evaluation by Dr. Stanton

Samenow, who prepared a detailed custody evaluation and two supplements in February 2008.

The parties relied on his report and recommendations when they formulated their own custody

agreement. On February 27, 2008, the parties signed the custody agreement, which was

incorporated into an order on March 25, 2008. The parties agreed to joint legal and physical

custody. The custody agreement provided that father would have final decision-making

authority for school-related matters and mental health treatment. Mother would have final

decision-making authority for non-mental-health-related medical decisions.

       In July 2009, father filed a petition to modify custody and requested that he be awarded

sole legal and physical custody of the children, or at least, final decision-making authority on all

matters relating to the children. Father also requested a modification to the visitation schedule

and certain injunctions against mother, including that she be enjoined from harassing him,

trespassing on his property, and interfering with his telephone contact with the children.

       In preparation for trial, father issued a witness subpoena for his oldest daughter to testify.

Mother filed a motion in limine and asked the trial court to quash the subpoena, which the trial

court granted. Father filed a motion to reconsider, which the trial court denied. Father filed a

motion and requested that the trial court speak with the child in chambers, and the trial court

denied the request.

       The trial court heard evidence for three days. At the conclusion of father’s case, mother

moved to strike, arguing that father failed to establish a material change of circumstances since


       1
           The parties’ two oldest children were born prior to the parties’ date of marriage.
                                                 -2-
the last court order. The trial court agreed and granted the motion to strike. The final order was

entered on August 16, 2010, and this appeal followed.

                                              ANALYSIS

                                             Police reports

       Father argues that the trial court erred by not admitting into evidence two police reports

from when mother called the police to her house to assist with the parties’ oldest child. Father

contends the reports should have been admitted because they were properly authenticated under

Code § 8.01-390. 2

       “Generally, the admissibility of evidence ‘is within the broad discretion of the trial court,

and an [evidentiary] ruling will not be disturbed on appeal in the absence of an abuse of

discretion.’” Surles v. Mayer, 48 Va. App. 146, 177, 628 S.E.2d 563, 578 (2006) (quoting Blain

v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)).

       In offering the police reports to the trial court, father stated, “In the police reports, you

have two independent police reports where she [mother] has called the police on [N.] because

she can’t control her behavior, and her remedy is to go to the cops.” 3

       The trial court refused to admit the police reports because Code § 8.01-390 did not

specifically include police reports, and “[p]olice reports are not generally admitted.” We need




       2
                 Copies of records of this Commonwealth, of another state, of the
                 United States, of another country, or of any political subdivision or
                 agency of the same, other than those located in a clerk’s office of a
                 court, shall be received as prima facie evidence provided that such
                 copies are authenticated to be true copies either by the custodian
                 thereof or by the person to whom the custodian reports, if they are
                 different.

Code § 8.01-390(A).
       3
           We will refer to the minor children by their initials.
                                                 -3-
not address the issue of whether Code § 8.01-390 includes police reports because mother

testified about the incidents when she called the police. Father’s counsel asked mother about the

incidents and why she called the police. Since mother fully testified about the events, the

admissibility of the police reports is moot. See United States Parole Comm’n v. Geraghty, 445

U.S. 388, 396 (1980) (holding that “mootness has two aspects: ‘when the issues presented are no

longer “live” or the parties lack a legally cognizable interest in the outcome’” (quoting Powell v.

McCormack, 395 U.S. 486, 496 (1969))).

        Accordingly, even if the exclusion of police records were error, such would be harmless

in the context of this case.

                                           Child’s testimony

        Father argues that the trial court erred by refusing to permit the parties’ oldest child to

testify about her preference for where she wanted to live.

        Father did not proffer what the child’s testimony would be. He simply told the trial court,

“[S]he is a fact witness. She is a witness who has knowledge not only with regard to her

preference that Ms. – Ms. Brittain is fully aware of, but she is a witness as to what is going on

between the two households.” Father did not elaborate as to what the child’s testimony would

be.

                In Virginia, when “testimony is rejected before it is delivered, an
                appellate court has no basis for adjudication unless the record
                reflects a proper proffer.” Whittaker v. Commonwealth, 217 Va.
                966, 968, 234 S.E.2d 79, 81 (1977). “When an appellant claims a
                trial court abused its discretion in excluding evidence, we cannot
                competently determine error – much less reversible error – without
                ‘a proper showing of what that testimony would have been.’”
                Tynes v. Commonwealth, 49 Va. App. 17, 21, 635 S.E.2d 688, 689
                (2006) (citation omitted); see also Commonwealth Transp.
                Comm’r v. Target Corp., 274 Va. 341, 348, 650 S.E.2d 92, 96
                (2007).

                                 *     *     *    *     *      *    *


                                                 -4-
               Absent a proffer showing “harm was done,” we are “forbidden to
               consider the question.” Scott v. Commonwealth, 191 Va. 73,
               78-79, 60 S.E.2d 14, 16 (1950)). . . . “To be sure, even when ‘we
               are not totally in the dark concerning the nature of the evidence,’
               we still must ‘know enough about the specifics’ to be able to ‘say
               with assurance’ that the lower court committed prejudicial error.”
               Tynes, 49 Va. App. at 22, 635 S.E.2d at 690 (quoting Smith v.
               Hylton, 14 Va. App. 354, 358, 416 S.E.2d 712, 715 (1992)).

Ray v. Commonwealth, 55 Va. App. 647, 649-50, 688 S.E.2d 879, 880-81 (2010).

        Typically, without knowing what the child was going to say, we could not review the trial

court’s decision in refusing to allow her to testify. In this case, however, the trial court noted

that the import of such testimony would have been that N.’s preference was for her father and

therefore no further proffer was necessary. Father argues that the trial court should have made a

decision regarding the child’s reasonable intelligence, understanding, age, and experience

pursuant to Code § 20-124.3(8) before determining that she was unable to testify. The trial court

refused to allow her to testify because the parties’ custody agreement, which was incorporated

into a court order, stated, “Nor shall either Party discuss legal issues surrounding custody with

the children.” The trial court stated, “What does concern me is the allegation here that there has

been a violation of the Court Order.” There was evidence that father discussed the legal

proceedings with the children, especially with the oldest child. He also brought the child to his

attorney’s office, where she talked with counsel for approximately two hours in preparation for

the custody hearing.

        Despite the exclusion of the daughter’s testimony, the trial court stated in its final ruling,

“The Court is aware, or by intimation even if not by testimony, that at least [N.] may have a

preference about which way she wants to go.” Even though the trial court did not hear from N.,

there was sufficient evidence from which the trial court could infer N.’s preference.

        Accordingly, we affirm the trial court’s ruling to exclude the thirteen-year-old child from

testifying.
                                                 -5-
                                          Motion to strike

       Father argues that the trial court erred in granting mother’s motion to strike. Father

presented evidence and various witnesses over the course of three days in support of his petition

to modify custody. At the conclusion of father’s case, mother moved to strike on the ground that

father had not proved that there had been a material change in circumstances since the last court

order. The trial court agreed and granted the motion to strike.

       On appeal, the Court in reviewing the ruling to strike a plaintiff’s evidence “must view

the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to

the plaintiff.” Economopoulos v. Kolaitis, 259 Va. 806, 814, 528 S.E.2d 714, 719 (2000) (citing

West v. Critzer, 238 Va. 356, 357, 383 S.E.2d 726, 727 (1989)).

       So viewed, we acknowledge that “the parent seeking to obtain a transfer of custody bears

the burden to show a change in circumstances following the most recent custody award.”

Hughes v. Gentry, 18 Va. App. 318, 322, 443 S.E.2d 448, 451 (1994) (citations omitted).

       “The test [for modifying custody] . . . has two prongs: first, has there been a change in

circumstances since the most recent custody award; second, would a change in custody be in the

best interests of the children.” Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983).

“Whether a change of circumstances exists is a factual finding that will not be disturbed on

appeal if the finding is supported by credible evidence.” Visikides v. Derr, 3 Va. App. 69, 70,

348 S.E.2d 40, 41 (1986) (citing Moyer v. Moyer, 206 Va. 899, 904, 147 S.E.2d 148, 152

(1966)).

       In this case, father presented evidence from numerous witnesses, including the oldest

child’s therapist and the youngest child’s therapist. Contrary to father’s arguments, both

therapists testified that the children were doing well. Father testified that he had difficulty

communicating with mother. The parties could not agree on the youngest child’s ADHD

                                                 -6-
medication, nor could they agree on the children’s extracurricular activities. However, the issue

regarding the medication resolved itself, and the oldest child was able to continue with music

lessons. Father also emphasized that mother failed to follow the counseling recommendations

from the original custody agreement. The trial court noted that mother did not immediately

follow the recommendations for individual counseling, but by the time of the hearing, mother

had seen a counselor. The trial court stated that mother “appears to be functioning better now

than she was when this report was done by Dr. Samenow.” Father showed the differences

between his home and mother’s home, and argued that he was better able to provide consistency

for the children. Father emphasized mother’s relationship with their oldest child. He argues that

mother was “incapable of effectively parenting” their child. He points to the two incidents when

she called the police for assistance. The trial court addresses the relationship between the mother

and the oldest child as follows:

               Looking at the relationship between the parents and the children, it
               appears that notwithstanding the fact that [N.] and her mother have
               been having some issues, some of that the Court is kind of in a
               quandary because you don’t know how much of it is because she’s
               becoming a teenager – and that’s a thing in and of itself that, you
               know, is hard to gauge, you know, for any child in how they are
               going to act and respond; how much of it is because there are some
               really legitimate issues between she and her mom; and then how
               much of it could have been the result of the fact this past year that
               she was aware of this pending court case.

Father argued that all of these instances, as well as the fact that the children are older and that the

parties have moved, showed a material change in circumstances.

       The trial court disagreed and referred to Dr. Samenow’s report. In 2008, Dr. Samenow

prepared a thirty-six-page report and two supplements, which the parties relied on when drafting

their custody agreement. Dr. Samenow’s reports were presented to the trial court for its review

prior to issuing its ruling in this case. The trial court noted that the report emphasized how

different the parties were, and “[i]t was clear from reading the report that there were a lot of
                                                 -7-
issues that existed between you.” In fact, the trial court found, “much of what is going on here

and the problems that exist are problems that, as clear from Dr. Samenow’s report, problems that

probably existed from the time you all ever got together and they’re still there.” The trial court

stated that “there’s no question in my mind there are some things that have kind of fallen and are

not as perfect as they should be.” However, the trial court stated, “you have to realize certain

things are in the best interests of the children, notwithstanding your differences and the fact that

you all have your differences, and obviously which led to the divorce.” The trial court

admonished father to be more flexible and mother to “step up and make sure she is doing more,

as much as she possibly can, to follow the letter of the court order.” The trial court examined in

depth the factors of Code § 20-124.3 and found that “for the most part the needs of these children

are being ably met by both parents.”

       In reviewing the record in the light most favorable to father, we find that there is credible

evidence to support the trial court’s ruling that father did not prove that there was a material

change in circumstances. Accordingly, the trial court did not err in granting the motion to strike.

                                     Attorney’s fees and costs

       Mother seeks an award of the attorney’s fees and costs she incurred on appeal. However,

because this litigation “addressed appropriate and substantial issues,” and “neither party

generated unnecessary delay or expense in pursuit of its interests,” Estate of Hackler v. Hackler,

44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004), we deny her request for an award of attorney’s

fees and costs she incurred on appeal. See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695,

479 S.E.2d 98, 100 (1996).

                                          CONCLUSION

       For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.

                                                                                           Affirmed.

                                                -8-
