                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, McCullough and Senior Judge Annunziata
Argued at Alexandria, Virginia


SHEREEN JAOUNI

v.      Record No. 0168-11-4

SAID SAMIR IBRAHIM SALAH                                       MEMORANDUM OPINION * BY
                                                              JUDGE STEPHEN R. McCULLOUGH
SHEREEN JAOUNI                                                       JANUARY 24, 2012

v.      Record No. 0378-11-4

SAID SAMIR IBRAHIM SALAH


                     FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                Jane Marum Roush, Judge

                Patricia M. McDermott; Catherine L. Fagg (Matthew D. Slater;
                David C. Smith; Katherine C. Fennell; Darlene R. Langley, Guardian
                ad litem for minor child; Cleary Gottlieb Steen & Hamilton, LLP;
                Arif & Associates, P.C., on briefs), for appellant.

                Richard P. Buzan (Richard P. Buzan, P.C., on brief), for appellee.


        Shereen Jaouni (“mother”) appeals from an order of the Circuit Court of Fairfax County

refusing to award a protective order for her daughter and imposing attorney’s fees. Mother

contends that the trial court erred in (1) permitting an expert witness to testify, (2) allowing Said

Samir Ibrahim Salah (“father”) to play a videotape depicting his interaction with daughter,

(3) refusing to credit the testimony of their daughter N. and the daughter’s counselor, (4) finding the




        *
          These consolidated cases involve the application of settled legal principles to a discrete
set of facts. Therefore, pursuant to Code § 17.1-413, this opinion is not designated for
publication.
evidence insufficient to issue the protective order, and (5) imposing attorney’s fees. For the reasons

noted below, we affirm in part and reverse in part.

                                          BACKGROUND

       Mother and father were divorced when their daughter N. was an infant. In March of

2010, mother sought a protective order from the Fairfax County Juvenile and Domestic Relations

District Court on the ground that father was physically abusing N. The juvenile court awarded

mother a protective order for six months. Father appealed that order to the circuit court.

       At the hearing in circuit court, mother testified that her daughter did not have bruises or

marks on her when she left mother’s home, but that such bruises could be found upon her after

visits with father. At one point, N. returned from a visit with her father with a black eye. Mother

said she observed bruises on her daughter approximately once per month, although she said the

bruises could be more frequent. Father had visitation every weekend. Mother documented these

bruises with extensive photographs. She also testified that she took her daughter to the hospital

after she suffered from severe sunburn following one of the visits with her father.

       N., who was eight years old at the time of the hearing in circuit court, testified that her

father beat her. She said some of those beatings were with a lacrosse stick. The court also

accepted into evidence video testimony showing N.’s interaction with her siblings and her father.

       Elizabeth Gordon, N.’s therapist, testified on mother’s behalf. Gordon was employed by

The House of Ruth, a private non-profit organization that focuses on domestic violence

prevention, treatment, and advocacy. In addition to specialized training, Gordon received a

master’s degree in clinical counseling from Johns Hopkins University. She explained that

although she is eligible for licensure, she is not licensed. A license is not required for her work.

Gordon testified that N. is very anxious about visitation with her father, and in particular she is

fearful of physical punishment “when she does something.” Punishments include being hit,

                                                 -2-
pinched, or having her hair pulled. N. reported to Gordon that N.’s father would come into the

bathroom and touch her private areas to wash her afterwards, which made N. uncomfortable

using the bathroom around him. Gordon acknowledged that she essentially based her opinion on

statements by N.

       Father testified that he loved his daughter, and he denied that he physically abused her.

According to father, the bruises N. experienced stemmed from playing with the many other

children who are present during visitation. His account was corroborated by his current wife, his

sister, and his sister-in-law. Father and his witnesses testified that when N. needed discipline,

father would use time outs rather than physical punishment.

       With respect to the severe sunburn N. suffered on one occasion, father’s witnesses

surmised that the suntan lotion applied to N. may have washed off when the children were

spraying each other with a hose. Some of the other children who played with N. also were

sunburned that day.

       Father and the witnesses he called denied that father accompanied N. to the bathroom.

Instead, she went by herself. Father testified that he has not accompanied N. to the restroom

since she was four years old. Several witnesses noted that although N. initially is apprehensive

during her visits with her father, she soon changed her demeanor and enjoyed the visits.

       Father introduced over mother’s objection a videotape showing excerpts of N. during

father’s visitation. Counsel objected on the basis that the videos were edited, they were not the

best evidence, and they were irrelevant because they did not record an entire visitation. Counsel

further noted that these videos were self-serving and hearsay. The trial court overruled the

objection.

       Dr. Christopher H. Lane was called as a witness by father. Dr. Lane initially was

appointed by the court as an expert to perform a child custody evaluation in a separate case.

                                                -3-
When father designated Dr. Lane as an expert witness for the protective order hearing, mother

objected on the basis that

                Dr. Lane has not been appointed in this case, nor has he been
                agreed upon to serve as a custody evaluator in this case, and use of
                his report in this case would therefore be in excess of any consent
                she granted, and therefore contrary to physician-patient privilege,
                to the extent he testifies to impressions resulting from his access to
                Ms. Jaouni or the child. Any testimony on behalf of a party would
                compromise the impartiality required of the evaluator. His report
                is not relevant, not likely to assist the factfinder, and excludes
                issues underlying this case.

She further objected to Dr. Lane’s testimony on “competency grounds [and] lack of personal

knowledge.”

        The guardian ad litem for N. also objected to Dr. Lane’s testimony, citing

                [h]earsay, lack of personal knowledge, relevance, lack of
                foundation, materiality. . . . Witness, by his own admission, has no
                information as to how the child’s injuries occurred and did not
                extensively explore these issues with the parties. Witness was
                engaged to perform a custody and visitation evaluation, and was
                not engaged to determine the issues before the court on the
                protective order.

        The steps Dr. Lane took to investigate the family dynamic are listed in his final report,

which is included in the trial court record 1:

                Evaluation Components:

                        3/31/10 – Interview with father (1 hour)
                        4/13/10 – Interview with father (45 min.)
                        4/14/10 – Interview and psychological testing of mother
                        (2.5 hrs.)
                        4/16/10 – Interview and psychological testing of father (1
                        hour)
                        4/21/10 – Interview and psychological testing of father (2
                        hours)
                        4/23/10 – Interview and psychological testing of mother
                        (2.5 hours)


        1
         The spelling of some of the names listed differs throughout the record. Dr. Lane’s
spelling of these names is quoted here verbatim.
                                               -4-
       4/29/10 – Interview and psychological testing of father (2
       hours)
       5/27/10 – Interview with father (1 hour)
       6/18/10 – Interview with mother (2.5 hours)
       6/23/10 – Interview with child (2 hours)
       6/29/10 – Interview with father (75 min.)
       7/6/10 – Interview with child (1 hour)
       7/7/10 – Joint father-child interview (1.5 hours)
       7/8/10 – Joint mother-child interview (1 hour)
       7/9/10 – Interview and psychological testing of child (2
       hours)
       7/15/10 – Interview with father (2 hours)
       7/17/10 – Exchange Observation (1 hour)
       7/17/10 – Joint father-child interview (1.5 hours)
       7/29/10 – Interview with father (2 hours)
       8/3/10 – Interview with mother (2.5 hours)
       8/5/10 – Interview with mother (2 hours)
       8/10/10 – Interview with father (2 hours)
       8/17/10 – Interview with mother (3 hours)
       8/18/10 – Interview with child (2 hours)
       8/26/10 – Interview with father (3 hours)
       9/11/10 – Home Visit/Family Observation – father (2
       hours)
       9/20/10 – Home Visit/Family Observation – mother (2
       hours)
       9/20/10 – Interview with father (2.75 hours)
       9/21/10 – Interview with child (1.5 hours)
       9/22/10 – Interview with mother (2 hours)
       9/23/10 – Interview with father (45 min.)
       9/23/10 – Interview with mother (45 min.)

       The following battery of psychological tests was
administered to each parent:

       Minnesota Multiphasic Personality Inventory – 2 (MMPI-
       2)
       Millon Clinical Multiaxial Inventory – III (MCMI-III)
       Substance Abuse Subtle Screening Inventory (SASSI-3)
       Paulhus Deception Scales
       House-Tree-Human Figure Drawings
       Kinetic Family Drawing
       Rotter Incomplete Sentence Blank
       Personal Problems Checklist for Adults
       Parenting Stress Index (PSI)
       Parent Awareness Skills Survey (PASS)

        The following psychological tests were administered to the
child or were completed for her by each parent:
                               -5-
                      Bricklin Perceptual Scales
                      Children’s Problem Checklist
                      Clinical Assessment of Behavior – Long Form (CAB)

                      Each parent was asked to complete the following
               questionnaires:

                      Brief Health Information Form
                      Chemical Use Survey
                      Parent’s Family/Personal History Questionnaire
                      Child History Questionnaire
                      Access to Adult Strength Parent Self-Report Data
                      Custody Issue Questionnaire
                      Joint Custody Issue Questionnaire

                      Additionally, each parent was given the opportunity to
               provide the evaluator with supporting documents. They each did
               so. These documents included both Virginia and Maryland legal
               records, correspondence, photographs, videotapes,
               communications, personal notes, professional articles, and other
               material considered by them to be relevant to existing issues.

                       The following individuals were interviewed in order to
               provide information, observations, and perspective relative to this
               matter:

                      Darlene Langley, Esq. – guardian ad litem
                      Elizabeth Gordon, MS (House of Ruth) – child’s therapist
                      Saly Hassan – child’s stepmother/transition supervisor
                      Sarrah Salah – child’s paternal aunt and visitation
                      supervisor
                      Dr. Rurnana Kazmi – family friend
                      Dr. Rasha Saleem – friend of mother/child
                      Dr. Ahmed Saleem – friend of mother/child
                      Mona El Dadah – friend of mother/child
                      Linda Williams Bright – friend/former colleague of mother
                      Moktar Hussein – friend/former mentor of mother
                      Mona Salah – child’s paternal aunt
                      Jenise Roach – father’s neighbor

       On the day of the hearing, counsel for mother again objected to Dr. Lane’s testimony,

citing the fact that he was not appointed to provide an opinion regarding the protective order.

Because Dr. Lane was appointed in the separate context of evaluating custody and visitation,

counsel argued his findings would not be “helpful in a protective order case.”
                                               -6-
          The trial court overruled the objections, stating that Dr. Lane would be limited in his

testimony to a determination of whether family abuse had occurred, and the risk of abuse. The

court further stated that if he strayed beyond this area, “we can take it up on a case-by-case

basis.”

          During his opening statement, counsel for father stated that

                 Dr. Lane does say that the child will make negative reports, but a
                 lot of that is based upon her desire to protect her mother from
                 suffering from rather severe depression . . . and that the daughter
                 may be fabricating these events in order to protect her mother was
                 some of the opinions that Dr. Lane would offer.

Counsel for mother objected, noting that “those are the opinions that are excluded because he is

not offering opinions as to the credibility of the child or the witness. He is offering his opinions

as to . . . risk of abuse.” The trial court overruled the objection, stating that this is “just opening

statement” and, therefore, just “a projection of what counsel thinks the evidence will be.”

          Curiously, Dr. Lane never was qualified as an expert. He testified that, although he could

not be one hundred percent sure, he did not believe that the abuse had taken place. He explained

that he arrived at this view because he did not think N. was telling the truth. Dr. Lane concluded

that N. “feels bound to say things that achieves her end and her end is to remain with her mom. I

think she feels protective of her mom. I think she doesn’t trust her dad. I think he is more of a

disciplinarian and sterner and firmer than her [mother].” No objection was lodged to this

testimony. Dr. Lane acknowledged that N. reported to him that her father hit her, that he would

not take care of splinters she received, and would come into the bathroom and touch her “private

areas.” Dr. Lane contrasted the uniformly negative statements N. made about her father with the

positive reaction she exhibited to her father during their interaction. Dr. Lane concluded that

N.’s statements were colored by a desire to avoid unhappiness for her mother. He also noted that




                                                  -7-
while father had difficulties controlling his temper, he does exercise reasonable self-control and

there is no risk of physical abuse.

       Towards the conclusion of Dr. Lane’s testimony, counsel asked

               And with respect to any role the mother has had in influencing the
               daughter to make allegations did your work in the case and your
               tests and interviews you’ve made give you any insight into what, if
               any, role the mother has played in influencing the child to make
               the incorrect statements or alleged abuse against the father?

Counsel for mother objected, arguing that “[h]is testimony . . . is going to be to the potential of

abuse or risk of abuse. And his determination of the mother and the mother’s credibility and the

child’s credibility, really those are issues for the Court.” The court overruled the objection.

Dr. Lane then answered the question, stating that

               I think this is a child who is very identified with her mother’s
               perceptions and emotions. I think she sees her mother as . . . put
               upon by her father, as victimized by her father and limited by her
               father in terms of finances and in terms of happiness, in terms of
               moving ahead with her life.

In effect, N. acts as a “lobby[ist] for her mother’s position.”

       The trial court declined to grant a protective order. The court found that the plaintiff had

not “shown by a preponderance of the evidence that the father has committed any acts of family

abuse or that a protective order is needed to protect the health and safety of the child.” The court

found “Dr. Lane’s testimony and his opinions to be quite credible and thought out and well

investigated.” The court agreed with Dr. Lane that N. had identified excessively with her mother

and feels responsible for her mother’s happiness. The court found Ms. Gordon’s opinion less

credible.




                                                 -8-
        At the conclusion of its findings, the trial court ordered mother “to pay $14,000 of the

father’s attorney’s fees within 90 days.” 2 Three days after the hearing, counsel for mother filed a

motion to reconsider the award of fees, arguing that the award was unwarranted. Counsel noted

that the protective order claim was not frivolous, was made in good faith, and that mother was

acting to protect her child who had repeatedly stated that she was abused by her father. The

motion also urged the court to reconsider because the court had not considered mother’s financial

ability to pay the fees, as required by law. The trial court denied the motion.

                                              ANALYSIS

                                      I. DR. LANE’S TESTIMONY

        Mother argues that the trial court erred in a number of particulars in admitting Dr. Lane’s

testimony. Mother first contends that Dr. Lane impermissibly commented on the veracity of a

witness when he expressed an opinion that N. was not being truthful. Under settled Virginia law,

an expert may not testify concerning the credibility of a witness. See, e.g., Pritchett v.

Commonwealth, 263 Va. 182, 187, 557 S.E.2d 205, 208 (2002). We find this issue was not

timely raised at trial and, therefore, is waived on appeal.

        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.” The

point of this rule is “to afford the trial judge a fair opportunity to rule intelligently on objections

while there is still an opportunity to correct errors in the trial court and to protect the trial court

from litigants asserting error on appeal that had not been raised at trial.” Vasquez v. Mabini, 269

Va. 155, 163, 606 S.E.2d 809, 813 (2005) (citation omitted). The rule “was adopted for the very

purpose of preventing the setting of traps for trial courts.” Keeny v. Commonwealth, 147 Va.


        2
           Counsel for father had filed an affidavit stating that “the invoiced attorney’s fees and
costs . . . to Mr. Salah that relate to the prosecution and defense of the April 9, 2010 order are
$14,332.79.” The affidavit was supported by extensive billing records.
                                                   -9-
678, 690, 137 S.E. 478, 482 (1927). “In order to be considered on appeal, an objection must be

timely made and the grounds stated with specificity. . . . To be timely, an objection must be

made when the occasion arises – at the time the evidence is offered or the statement is made.”

Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986); see also Harward

v. Commonwealth, 5 Va. App. 468, 473-74, 364 S.E.2d 511, 513 (1988).

       Mother’s objection prior to trial did not raise the issue of any impermissible comments by

Dr. Lane on a witness’ credibility, and when the issue was raised at trial, the objection was

untimely. 3 Prior to trial and in a motion in limine heard on the morning of trial, mother certainly

objected to Dr. Lane’s testimony. These objections, however, were not grounded on the fact that

Dr. Lane would comment on the veracity of a witness. Counsel also objected during the opening

statement offered by father’s counsel, but the gravamen of that objection was that testimony by

Dr. Lane about the credibility of the child would be beyond the scope of the testimony permitted

by the trial court. Counsel did not argue that this testimony would impermissibly invade the

province of the fact finder. Moreover, the trial court noted that this was simply opening

statement. To preserve the point for appellate review, it was incumbent on counsel to timely

object. Counsel did not do so.

       Near the conclusion of Dr. Lane’s testimony, counsel did object to any testimony

addressing mother’s and child’s credibility, noting that the credibility of witnesses was an issue

for the fact finder. The objection at that point certainly was specific enough, but it came too late.

Marlowe, 2 Va. App. at 621, 347 S.E.2d at 168. Moreover, at that point, Dr. Lane had expressed

at length his opinion as to N.’s credibility. Therefore, any error by the trial court in overruling

this late objection would have had no impact on the trial court’s conclusions. See Andrews v.

Creacey, 56 Va. App. 606, 625, 696 S.E.2d 218, 227 (2010) (“‘If, when all is said and done, [it is


       3
           We note parenthetically that counsel on appeal did not represent mother at trial.
                                                - 10 -
clear] that the error did not influence the [fact finder], or had but slight effect, . . . the judgment

should stand.’” (quoting Clay v. Commonwalth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32

(2001))).

          The next assignment of error challenges the trial court’s decision to permit Dr. Lane to

testify as to whether family abuse occurred. Mother argues that Dr. Lane did not adequately

investigate all of the allegations of child abuse at issue in this case. In his motion in limine to

exclude Dr. Lane’s testimony, counsel for mother quoted a paragraph from Dr. Lane’s final

report in the child custody case as a basis for excluding his testimony. That paragraph provides

that

                         Photographs exist of seeming bruising, scratching, sunburn,
                 splinters. This evaluation credits these and has no particular
                 insight into how each occurred. This evaluation finds that risk of
                 abuse, however, is not the most appropriate guide in crafting a
                 custodial schedule.

(Emphasis added). During his testimony, Dr. Lane acknowledged that he wrote in his

preliminary report that “not all allegations made regarding a suspected pattern of bruising,

pinching, inappropriate punishment, unfair treatment, or neglect can be adequately investigated

in an evaluation of this type or subjected to sufficient scrutiny to either confirm or deny their

truthfulness.” (Emphasis added).

          At trial and on appeal, mother also argues that Dr. Lane’s testimony should have been

excluded because the conditions at the time of his evaluation differed from the conditions

relevant to the circuit court’s ruling. Mother notes that the period of time during which Dr. Lane

evaluated the child was not the same period of time during which the abuse is alleged to have

occurred. As a consequence, counsel argued, Dr. Lane’s testimony would not assist the fact

finder.




                                                 - 11 -
        “Where the admissibility of expert testimony is challenged on appeal, the standard of

review is whether the trial court abused its discretion.” Currie v. Commonwealth, 30 Va. App.

58, 64, 515 S.E.2d 335, 338 (1999). Here, the trial court committed no abuse of discretion in

declining to exclude Dr. Lane’s testimony, from the outset, in toto. In ruling as it did, the trial

court had before it a detailed report signed by a licensed clinical psychologist who had

administered a battery of tests to father, mother, and to N., who spoke at length with many

individuals, and who considered an extensive range of materials provided by the parties. Even if

Dr. Lane’s investigation took place after the juvenile court entered a protective order, his

investigation was not limited to that time frame. His anticipated expertise, and his detailed

investigation, certainly presented the prospect of relevant evidence. Likewise, the fact that he

did not investigate the origin of every single bruise did not render his testimony speculative or

based on an insufficient factual foundation.

       Finally, with regard to mother’s argument that the conditions had changed with the

requirement of supervised visitation, it is true that the existence of a protective order and of

supervised visitation would to some extent alter the dynamic between father and child.

Nevertheless, Dr. Lane’s extensive investigation and testing supplied an ample basis from which

the trial court could conclude that his testimony was relevant and admissible. Indeed, mother

tendered the testimony of N.’s counselor as an expert. Ms. Gordon’s involvement did not begin

until April 2010. Ms. Gordon’s factual investigation was nowhere near as thorough as that

conducted by Dr. Lane. Mother obviously considered Gordon’s testimony relevant to the fact

finder. The trial court did not err in reaching the same conclusion with respect to Dr. Lane.

       Ultimately, the fact that Dr. Lane’s testimony may have been subject to impeachment on

one or more grounds did not render his testimony irrelevant and inadmissible. Such matters




                                                - 12 -
would instead go to the weight given to his testimony. In short, under the deferential standard of

review in evidentiary matters, we find no abuse of discretion.

       Finally, mother argues that Dr. Lane should not have been permitted to testify as an

expert on the risk of family abuse in light of the absence of record evidence as to his education,

qualifications, or experience. Mother is correct that Dr. Lane was never qualified as an expert.

However, mother never objected on this basis in the trial court. Although she objected pre-trial

on the ground that he was appointed for a different purpose, namely, to conduct a custody

evaluation, in no sense can this objection be read as raising the issue of the failure to qualify him

as an expert at trial. Therefore, this argument is waived. See Rule 5A:18.

               II. WITNESS CREDIBILITY AND THE REFUSAL OF THE TRIAL COURT TO
                                   GRANT THE PROTECTIVE ORDER

                         A. The trial court’s assessment of N.’s credibility

       Mother assigns error to the trial court’s refusal to credit N.’s testimony, contending that

her testimony was “supported by numerous facts in the record.” We decline the invitation to

reweigh N.’s testimony. Under settled law, “[t]he credibility of the witnesses and the weight

accorded the evidence are matters solely for the fact finder who has the opportunity to see and

hear that evidence as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455

S.E.2d 730, 732 (1995). The trial court found that N.’s testimony about the abuse was likely

motivated by her desire to protect her mother and to ensure her mother’s happiness. The court

noted that N.’s mother and father separated very soon after she was born and they divorced when

she was an infant. Witnesses for father explained the origin of the bruises and other injuries N.

suffered, and the trial court accepted this account. Certainly, it is not unusual for a child to

sustain bruises when playing with siblings. Even if the testimony of father’s witnesses did not

account for every single bruise, or suffered from some inconsistencies, that would not render

their account incredible as a matter of law. Certainly, the injuries N. suffered were not so
                                                - 13 -
catastrophic or anomalous that father’s explanation of their occurrence was inherently incredible.

Viewing the evidence in its totality, and deferring, as we must, to the credibility determinations

of the trial court, we find no basis for reversal.

                  B. The trial court’s assessment of the credibility of Ms. Gordon

        Mother argues in her seventh assignment of error that the trial court erred when it refused

to credit the testimony of Elizabeth Gordon. The trial court specifically addressed Gordon’s

testimony. The court found Ms. Gordon’s opinion “certainly not as well researched or thought

out as Dr. Lane’s.” The court further found “hard to ignore” the fact that Gordon was not a

licensed therapist. Furthermore, the trial court had to weigh Ms. Gordon’s testimony in the

context of all of the evidence and the credibility of the witnesses who offered that evidence.

Finally, the trial court had the opportunity, which we lack, of observing the demeanor of the

witnesses on the stand. Our review of the record shows that the trial court carefully weighed all

of the evidence and concluded that mother had failed to show “by a preponderance of the

evidence that father had committed any acts of family abuse or that a protective order is needed

to protect the health and safety of the child.” We conclude this argument is without merit under

settled rules of appellate review. Sandoval, 20 Va. App. at 138, 455 S.E.2d at 732.

                      C. Refusal of the trial court to award a protective order

        In a related assignment of error, mother asserts that the court erred when it found that

child abuse was not proven. When reviewing a circuit court’s decision on appeal, “we review

the evidence in the light most favorable to the prevailing party, granting it the benefit of any

reasonable inferences.” Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835

(2003). “That principle requires us to discard the evidence of appellant which conflicts, either

directly or inferentially, with the evidence presented by appellee at trial.” Brandau v. Brandau,

52 Va. App. 632, 635, 666 S.E.2d 532, 534 (2008) (citation omitted).

                                                 - 14 -
        This case turned on the credibility of the witnesses. N., her mother, and her therapist

presented evidence of bruising and other injuries. N.’s testimony that her father inflicted these

injuries was corroborated by her mother and her therapist. Father, on the other hand, denied that

the abuse occurred, and his testimony was amply corroborated by other witnesses. Witnesses for

the father testified that they did not watch N. constantly, and, therefore, their inability to account

for the provenance of some of the bruises is not surprising. Furthermore, the bruises were not so

frequent – mother testified that they occurred about once per month – nor were the injuries so

grave that a pattern of abuse surfaced as the only possible explanation. None of the injuries

support any suggestion of a beating with a lacrosse stick. Moreover, it was mother who bore the

burden of proving that abuse had occurred. In light of the standard of review, we affirm the

decision of the trial court.

                  III. ADMISSIBILITY OF THE VIDEOTAPE INTRODUCED BY FATHER

        In another assignment of error, mother contends that the trial court erred in admitting into

evidence a videotape showing father interacting with N., and N. playing with other children

during visitation. On appeal, we review a trial court’s decision regarding the admissibility of

evidence for abuse of discretion. Gonzales v. Commonwealth, 45 Va. App. 375, 380, 611 S.E.2d

616, 618 (2005) (en banc). “Evidence is relevant if it has any logical tendency, however slight,

to establish a fact at issue in the case.” Ragland v. Commonwealth, 16 Va. App. 913, 918, 434

S.E.2d 675, 678 (1993). “‘The test establishing relevance is not whether the proposed evidence

conclusively proves a fact, but whether it has any tendency to establish a fact at issue.’”

Holsapple v. Commonwealth, 39 Va. App. 522, 537-38, 574 S.E.2d 756, 763 (2003) (en banc)

(quoting Wise v. Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988)).

        The videotape was relevant. Father testified that he was a loving father who would not

abuse his daughter. Father also presented evidence that some of N.’s bruises stemmed from N.’s

                                                - 15 -
play with other children. In addition, father’s evidence was that N. would make negative reports

about his actions that contrasted with her affectionate relationship with and attitude toward him.

The videos, which depict father interacting with his daughter, as well as N. interacting with other

children, corroborate the account presented by father and his witnesses, even if they are far from

conclusive evidence. Had the videotape shown N. recoiling from her father, it certainly would

have been relevant and admissible to bolster mother’s case. As the United States Supreme Court

has noted,

                It is universally recognized that evidence, to be relevant to an
                inquiry, need not conclusively prove the ultimate fact in issue, but
                only have “any tendency to make the existence of any fact that is
                of consequence to the determination of the action more probable or
                less probable than it would be without the evidence.”

McKoy v. North Carolina, 494 U.S. 433, 440 (1990) (citations and internal brackets omitted).

We find no abuse of discretion in admitting the videotape. 4

                                       IV. ATTORNEY’S FEES

        Mother argues that the trial court abused its discretion in awarding attorney’s fees

because (1) she was merely defending on appeal from the juvenile court the protective order that

she obtained in that court; (2) the trial court failed to articulate a reason for the award of fees;

(3) the court did not make a factual finding regarding the amount of the fees; and (4) awarding

fees in this context is contrary to the purpose of Virginia’s protective order statute.

        Two statutes govern our analysis. First, Code § 16.1-279.1(E) provides that “[t]he court

may assess costs and attorneys’ fees against either party regardless of whether an order of

protection has been issued as a result of a full hearing.” The second statute, Code § 16.1-278.19,



        4
         Moreover, even if admitting these videos was somehow error, we fail to perceive any
harm from their admission into evidence. The trial court was well aware that father had prepared
select excerpts of the visits to present in court. Indeed, the trial court made no reference to this
videotape in announcing its findings.
                                                  - 16 -
provides that “the court may award attorneys’ fees and costs on behalf of any party as the court

deems appropriate based on the relative financial ability of the parties.” On appeal, the

imposition of attorney’s fees in this context is reviewed for an abuse of discretion. Lynchburg

Div. of Social Servs. v. Cook, 276 Va. 465, 484, 666 S.E.2d 361, 370 (2008). The abuse of

discretion standard “if nothing else, means that the trial judge’s ‘ruling will not be reversed

simply because an appellate court disagrees.’” Thomas v. Commonwealth, 44 Va. App. 741,

753, 607 S.E.2d 738, 743 (2006) (citation omitted).

       First, the court found that mother had failed to establish her allegations by a

preponderance of the evidence. Second, the trial court was “very troubled” that N. was the

subject of such frequent photographing. The court found it “just too much to be putting on this

child.” The court particularly found it disturbing that N. was photographed holding up a copy of

the Washington Post, “like she has been abducted in Pakistan.” Not only did mother fail to meet

her burden of proof by a preponderance of the evidence but, further, the court found that a young

child was being subjected to what the trial court characterized as “posturing for litigation.” In

light of these findings, we hold that the trial court did not abuse its discretion in awarding

attorney’s fees.

       Mother extensively develops a policy argument, contending that imposing fees upon

unsuccessful protection order applicants would undermine the objectives of the protection order

statute, and would have a chilling effect on the ability of victims of family abuse to seek the

protection of the courts. This argument, however ably made, was not raised below.

Accordingly, we will not consider it. See Rule 5A:18.




                                                - 17 -
       Mother next faults the trial court for “failing to make a factual finding regarding the

reasonableness of the award of $14,000.” This specific objection was not made below.

Therefore, it is procedurally barred by operation of Rule 5A:18. 5

       Finally, mother argues that the court failed to consider mother’s financial ability to pay

the fees. Code § 16.1-278.19 requires a trial court, when it awards attorney’s fees, to consider

“the relative financial ability of the parties.” See Alexander v. Flowers, 51 Va. App. 404, 416,

658 S.E.2d 355, 360-61 (2008). Here, the trial court did not consider mother’s ability to pay in

awarding attorney’s fees. 6 Therefore, we remand to the trial court for a determination of the

appropriate amount of fees, if any, upon consideration of the financial ability of the parties.



                                                                                   Affirmed in part,
                                                                                   reversed in part,
                                                                                     and remanded.




       5
         Furthermore, the statutes authorizing courts to award attorney’s fees in this context do
not require a trial court to articulate on the record a basis for the fee award.
       6
         Although mother did not initially object to the imposition of fees at the conclusion of
the hearing, she made a specific objection on this basis in her motion for reconsideration a few
days after the hearing, and well before entry of the final order. The trial court specifically
considered and rejected this motion for reconsideration. Therefore, mother’s objection on this
point was specific and timely. If the circuit court is aware of the party’s objections and has had
the opportunity to rule on them, the requirements of Rule 5A:18 are satisfied. See Lee v. Lee, 12
Va. App. 512, 515-16, 404 S.E.2d 736, 738 (1991) (a timely motion to reconsider suffices to
preserve an issue for appellate review).
                                                - 18 -
