                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, AtLee and Senior Judge Annunziata
UNPUBLISHED


              Argued by teleconference


              FIALKA WARD
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1313-19-4                                 JUDGE ROSEMARIE ANNUNZIATA
                                                                                  MAY 19, 2020
              JOHN LEE WARD


                                  FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                                               Daniel S. Fiore, II, Judge

                               Fialka Ward, pro se.

                               Kabara Korth Praskavich; Devanshi P. Patel, Guardian ad litem for
                               the minor child (Maddox & Gerock, P.C.; Patel Law, PLLC, on
                               brief), for appellee.


                     Fialka Ward (mother) appeals an order dismissing her “petition” with prejudice and ordering

              her to seek court approval before she files “any further motions or other pleadings, and from issuing

              any discovery.” Mother argues that the circuit court erred by refusing to allow her to present

              evidence, dismissing her petition “without giving [her] the chance to sign the order and declare that

              she ‘signed and disagreed,’” and refusing to allow her to file certain motions and documents after

              the entry of the final order. We find no error and affirm the decision of the circuit court.

                                                        BACKGROUND

                     “On appeal, we view the evidence ‘in the light most favorable to the prevailing party

              below and its evidence is afforded all reasonable inferences fairly deducible therefrom.’” Bedell




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
v. Price, 70 Va. App. 497, 500-01 (2019) (quoting Bristol Dep’t of Soc. Servs. v. Welch, 64

Va. App. 34, 40 (2014)).

       Mother and John Ward (father) married on June 14, 2013, and divorced on January 27,

2016. The parties have one child, who has been the subject of several custody, visitation, and

support orders. The circuit court entered the most recent custody, visitation, and support orders

on August 10, 2018.1 Afterwards, mother filed motions seeking to transfer venue and modify the

custody and support orders. She also filed show cause petitions. The circuit court entered orders

denying mother’s motions and petitions and prohibiting either party from placing matters on the

docket “without express authority from the [c]ourt.”2

       Thereafter, mother filed numerous pleadings requesting modifications to the prior orders.

On May 9, 2019, the parties appeared before the circuit court. The circuit court found that there

had not been a material change in circumstances since the August 2018 order, but asked mother

what she perceived to be the material change in circumstances. Mother offered as an example

that father had not informed her about a new medical provider for the child; and father explained

why he had not immediately notified mother. The circuit court encouraged the parties to work

together and explored the idea of a parenting coordinator. Mother, however, was argumentative

and concerned about the cost, so the circuit court did not appoint a parenting coordinator. The

circuit court found that “all of [the] issues and discord [are] coming from [mother] and not from

[father].” The circuit court explained that it had “taken a significant amount of time to try to find

a resolution in this [matter] but [mother was] simply incapable of doing that. All [she] want[ed]

to do [was] fight this.” The circuit court dismissed mother’s petition with prejudice and


       1
        Mother appealed the August 10, 2018 orders, but the appeal was dismissed for failure to
pay timely the filing fee. See Ward v. Ward, Record No. 1731-18-4.
       2
        Mother appealed the circuit court’s orders, but subsequently withdrew her appeals. See
Ward v. Ward, Record Nos. 1730-18-4 and 1995-18-4.
                                              -2-
prohibited her from filing “any further motions or other pleadings, and from issuing any

discovery” without prior court approval. Mother endorsed the order but did not note any

objections. This appeal followed.

                                            ANALYSIS

       Mother argues that the circuit court erred by not allowing her to present any evidence.3

She contends that she was “prepared to present substantial evidence that would have confirmed

that there had been a material change in circumstances since the August 10, 2018 custody order

and that would have supported her contention that it was in the minor child’s best interests to

modify the then-existing custody schedule as she requested.”

       During the hearing, the circuit court specifically asked mother, “What is the material

change in circumstances?” Mother presented a document indicating that the child had seen a

new medical provider, but father had not informed her of the new provider. Father explained his

actions to the circuit court and stated that he now understood that he needed to inform her of all

new medical providers. Other than the father’s failure to inform mother of the new medical

provider for the child, mother did not seek to present additional evidence or witnesses, nor did

she proffer any evidence. “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.” Ray v. Commonwealth, 55

Va. App. 647, 649 (2010) (quoting Tynes v. Commonwealth, 49 Va. App. 17, 21 (2006)).

“Thus, ‘[t]he failure to proffer the expected testimony is fatal to [the] claim on appeal.’”




       3
          Mother argues that the circuit court erred by refusing to hear evidence at the hearings on
August 10, 2018, September 14, 2018, and May 9, 2019. Mother already had appealed the
rulings from the August 10, 2018 and September 14, 2018 hearings, and she withdrew her
appeals in those matters. See Ward v. Ward, Record Nos. 1731-18-4 and 1995-18-4. The only
matter properly before this Court is the ruling from the May 9, 2019 hearing.
                                                 -3-
Virginia Bd. of Med. v. Zackrison, 67 Va. App. 461, 485 (2017) (quoting Massey v.

Commonwealth, 67 Va. App. 108, 132 (2016)).

       Moreover, mother did not note any objections to the final order.4 She is raising her

arguments for the first time on appeal.5 “No 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.” Rule 5A:18. “The Court of Appeals will not consider an argument on appeal which

was not presented to the trial court.” Tackett v. Arlington Cty. Dep’t of Human Servs., 62

Va. App. 296, 315 (2013) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998)).

“One of the tenets of Virginia’s jurisprudence is that trial counsel must timely object with

sufficient specificity to an alleged error at trial to preserve that error for appellate review.” Perry

v. Commonwealth, 58 Va. App. 655, 666 (2011). “The purpose of Rule 5A:18 is ‘to ensure that

the trial court and opposing party are given the opportunity to intelligently address, examine, and

resolve issues in the trial court, thus avoiding unnecessary appeals.’” Friedman v. Smith, 68

Va. App. 529, 544 (2018) (quoting Andrews v. Commonwealth, 37 Va. App. 479, 493 (2002)).




       4
          Mother states that the circuit court ended the hearing “without giving [her] the chance to
sign the order and declare[d] that she ‘signed and disagreed.’” Upon review of the record, we
find that mother endorsed the final order, but she did not note any objections. The record does
not indicate that the circuit court prevented mother from noting her objections on the order.
       5
         Mother filed a motion to reconsider, but she did not allege that the circuit court erred by
not allowing her to present evidence. We note that although the clerk’s office stamped the
motion to reconsider as “Received,” it was among several documents that mother submitted that
the circuit court clerk’s office did not “accept for filing” under the circuit court’s
preauthorization order. The circuit court did not rule on mother’s motion to reconsider or issue
an order regarding the filing of her documents. Since mother did not obtain a ruling, “there is no
ruling for [this Court] to review.” See Fisher v. Commonwealth, 16 Va. App. 447, 454 (1993).

                                                 -4-
       Accordingly, we affirm the circuit court’s ruling. Both parties ask this Court to award

them attorney’s fees and costs incurred on appeal.6 See O’Loughlin v. O’Loughlin, 23 Va. App.

690, 695 (1996). “The decision of whether to award attorney’s fees and costs incurred on appeal

is discretionary.” Friedman, 68 Va. App. at 545. Mother was pro se and did not incur appellate

attorney’s fees; therefore, we deny her request for attorney’s fees and costs. Having reviewed

and considered the entire record in this case, we hold that father is entitled to a reasonable

amount of attorney’s fees and costs, and we remand for the circuit court to set a reasonable

award of attorney’s fees and costs incurred by father in this appeal. Rule 5A:30(b).

                                          CONCLUSION

       For the foregoing reasons, the circuit court’s ruling is affirmed. We remand this case to

the circuit court for determination and award of the appropriate appellate attorney’s fees and

costs, which also should include any additional attorney’s fees incurred at the remand hearing.

                                                                            Affirmed and remanded.




       6
         We deny father’s request to order mother to pay the guardian ad litem’s fees; however,
we note that the guardian ad litem may file a motion with this Court for payment of fees incurred
on appeal.
                                               -5-
