                                 COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Senior Judge Overton
Argued at Chesapeake, Virginia


MICHAEL HELMICK
                                                              MEMORANDUM OPINION* BY
v.      Record No. 0454-03-1                                JUDGE JEAN HARRISON CLEMENTS
                                                                   FEBRUARY 15, 2005
MELISSA SPRONG, RAYMOND HELMICK
AND BETTY HELMICK


                FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                Verbena M. Askew, Judge

                  Oldric J. LaBell, Jr., for appellant.

                  Breckenridge Ingles (McClanahan Ingles; Martin, Ingles & Ingles,
                  Ltd., on brief), for appellee Melissa Sprong.

                  No brief or argument for appellees Raymond Helmick and Betty
                  Helmick.


        Michael Helmick (father) appeals from the January 29, 2003 order of the circuit court,

awarding visitation with his minor son (child) to Raymond and Betty Helmick (great-grandparents)

and granting the motion of Melissa Sprong (mother) to deny him access to child’s medical records.

Father contends the circuit court erred in (1) prohibiting great-grandparents from taking child to

visit him in prison and (2) denying him access to child’s medical records. For the reasons that

follow, we affirm the decision of the circuit court.

        As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

appeal.

                                          I. BACKGROUND

          On appeal, we consider the evidence in the light most favorable to the party prevailing

below. Wilson v. Wilson, 12 Va. App. 1251, 1254, 408 S.E.2d 576, 578 (1991). So viewed, the

evidence proved that great-grandparents raised father as a son since his birth. Mother and father

were married in November 1997. Mother gave birth to child in January 1998. For nearly two years

following the birth, great-grandparents helped care for child. They often kept child overnight when

mother and father worked late at night. Mother and father separated in December 1999, when father

was first incarcerated on felony charges. During that initial incarceration, mother took child to visit

father in jail one time. Father was subsequently released on bond pending trial.

          On May 3, 2000, the circuit court entered a pendente lite decree in the divorce case, granting

father specific visitation with child. Father exercised such visitation with child at

great-grandparents’ house until June 2000, at which time he was sentenced to thirty years in prison

with twenty-two years suspended. Mother continued to allow child to regularly visit

great-grandparents. During those visits, child talked to father on the telephone and

great-grandparents read him letters father had sent him. During child’s visit with great-grandparents

on September 14, 2000, the police transported father to meet child at the Hampton Coliseum in

exchange for father’s cooperation in other cases. Mother learned of the meeting only after it took

place.

          The circuit court entered a final decree of divorce on April 30, 2001, awarding mother

custody of child, granting father “reasonable visitation,” and transferring the matter to the juvenile

and domestic relations district court (J&DR court). Following entry of the final decree, mother

continued to permit child to visit great-grandparents.

                                                   -2-
        During the summer of 2001, great-grandparents asked mother for permission to take child to

visit father in prison. Mother forbade them from doing so. In response, great-grandparents filed a

petition dated October 25, 2001, in the J&DR court requesting court-ordered visitation so they could

take child to see father in prison. Great-grandparents’ petition stated that child’s “visitation requires

determination.” Mother requested that father’s visitation be terminated, that father be denied child’s

medical records, and that father’s letters to child be screened.

        After conducting a hearing on the parties’ respective motions, the J&DR court denied

mother’s motions and granted great-grandparents visitation with child on every other Wednesday

from 9:00 a.m. to 6:30 p.m. and on the last Friday of each month from 6:30 p.m. to 7:00 p.m. the

next day. The court memorialized its decisions in an April 15, 2002 order entered nunc pro tunc

March 18, 2002. The court’s order did not expressly address whether great-grandparents could take

child to visit father in prison; however, no conditions or restrictions were placed on the ordered

visitation. On April 15, 2002, mother noted her appeal of the J&DR court’s decision.

        After the J&DR court hearing, great-grandparents took child to see father at Mecklenburg

Correctional Center. Later in the summer, following father’s transfer, great-grandparents took child

to see father at Greensville Correctional Center. Great-grandparents took child to see father in

prison approximately six times.

        Observing that child was more defiant and experienced nightmares and bed wetting upon his

return from visiting father in prison, mother took child, on April 16, 2002, April 29, 2002, and

August 26, 2002, to see Dr. Howard Bierenbaum, a clinical psychologist who had previously

evaluated and treated child for behavioral problems experienced after mother and father’s separation

and divorce. Mother also contacted the authorities at Greensville Correctional Facility to request

that child not be permitted to see father in prison without a court order directly authorizing such

visitation.

                                                  -3-
        In November 2002, great-grandparents received a letter from the assistant warden of

Greensville Correctional Center informing them that they would need a court order expressly

authorizing child’s visitation with father before child could reenter the facility.

        The circuit court heard mother’s de novo appeal of the J&DR court’s decision on September

10 and November 12, 2002. At those hearings, mother did not oppose great-grandparents’ request

for visitation with child but asked that their visitation be amended to accommodate child’s

attendance in school and that great-grandparents not be allowed to take child during their visitation

to see father in prison. Mother further asked that father be denied child’s medical records.

Great-grandparents did not oppose mother’s request to amend their visitation to accommodate

child’s attendance at school but requested that they be specifically authorized to continue to take

child to see father in prison and that they be granted additional weekend and holiday visitation with

child. Father requested that he be given access to child’s medical records and that

great-grandparents be allowed to bring child to visit him in prison. Child’s guardian ad litem

requested that great-grandparents not be allowed to take child to visit father in prison.

        After considering the evidence presented, including the de bene esse deposition of

Dr. Bierenbaum, and argument of counsel, the circuit court awarded great-grandparents visitation

with child on alternate Fridays from 1:30 p.m. to 10:00 a.m. the next day, the last Friday of each

month from 6:00 p.m. to the next day at 6:00 p.m., and one day during each of the Easter,

Thanksgiving, and Christmas holiday vacations. As memorialized in its order of January 29, 2003,

the court further ruled as follows:

                        1. The Court finds that the non-custodial parent who is
                currently incarcerated in a state correctional facility is not entitled to
                the minor child’s medical records and the Court finds pursuant to
                Virginia Code § 20-124.6 that good cause has been shown for
                denying the child’s medical records to his father who is not in a
                position to make any decisions regarding the child’s medical care or
                treatment.

                                                   -4-
                         2. The Court believes that it is not appropriate for this four
                year old child to visit his father in prison and after considering the
                criteria in Virginia Code § 20-124.3 finds that it is not in the child’s
                best interest to have visits at the state correctional facility and
                consequently the Court ORDERS that the great-grandparents are
                prohibited from taking the minor child to see his father at Greensville
                or any other state correctional facilities during their visitation.

        This appeal followed.

                                           II. VISITATION

        On appeal, father contends the circuit court erred in ruling that great-grandparents were not

allowed to bring child to visit him in prison. In support of that contention, father first argues that the

circuit court failed to find that a material change in circumstances had occurred since entry of the

final decree of divorce, which was necessary before the court could amend the “reasonable

visitation” he had pursuant to that decree. The evidence, he maintains, shows that, “when the final

decree of divorce was entered, . . . he was already incarcerated.” Father also argues that the circuit

court failed to consider “the strong and loving relationship” he had with child and child’s

preference, as required by subdivisions 3 and 8 of Code § 20-124.3. The circuit court’s decision

depriving him of in-person visitation with child at the prison, he maintains, is “contrary to the

evidence when the strong ties between [father] and [child] are considered along with the fact that the

visitation had been allowed for six months without any problems.” Thus, father concludes, the

circuit court improperly deprived him of in-person visitation with child. We hold that father’s claim

is without merit.

        While father is correct generally that there can be no change in visitation unless there has

been a material “change in circumstances” since the last visitation award, Albert v. Albert, 38

Va. App. 284, 293, 563 S.E.2d 389, 394 (2002), father’s premise that the circuit court had to find

that a change in circumstances had occurred before it could “amend” his visitation rights set forth in

the final decree of divorce is flawed under the circumstances of this case because the circuit court

                                                  -5-
did not amend father’s visitation rights. In order for the circuit court’s refusal to allow

great-grandparents to take child to see father in prison to constitute a change in father’s visitation

rights since entry of the divorce decree, the divorce decree must have given father the right to

in-person visitation with child. However, with respect to visitation, the divorce decree stated solely

that father was entitled to “reasonable visitation.” The decree provided neither a definition of

“reasonable visitation” nor any details as to what constituted “reasonable visitation.” Certainly, we

cannot say, as a matter of semantics, that “reasonable visitation” categorically involves in-person

visitation, particularly if, as here, the person exercising the visitation is in prison.

        Nor, despite father’s apparent claim to the contrary, did the circumstances existing at the

time of the divorce decree’s entry establish that the “reasonable visitation” granted in the decree

involved in-person visitation. Unlike the May 3, 2000 pendente lite decree, which was entered

while father was out of jail on bond and able to exercise the specifically granted in-person visitation

with child at great-grandparents’ house, the final decree of divorce was entered after father had

begun serving his sentence of at least eight years’ incarceration. Other than a single visit arranged

by the police that mother learned of only after it had occurred, father had no in-person visitation

with child between his incarceration in June 2000 and the entry of the final decree on April 30,

2001. During that period and following the entry of the divorce decree, mother continued to allow

child to regularly visit great-grandparents at their house, where child talked to father on the

telephone and received letters from him, but never authorized in-person visitation by father.

Accordingly, we cannot say that the circuit court’s grant to father in the final decree of “reasonable

visitation” constituted in-person visitation with child while father was in prison. This conclusion is

buttressed by the fact that, in petitioning the J&DR court for visitation with child and for

authorization to take child to see father in prison after mother had denied their request for




                                                    -6-
permission to do so, great-grandparents asked the court for a “determination” of child’s visitation,

rather than for a change in visitation.

        It is clear, therefore, that the matter before the lower courts was not a request to amend

father’s visitation rights but a request to determine what visitation was “reasonable”—specifically,

whether in-person visitation with child while father was in prison was “reasonable.” Ultimately, the

circuit court determined that it was not. Accordingly, we conclude that, in denying

great-grandparents’ request for authorization to take child to see father in prison and, thus, depriving

father of in-person visitation with child while he was in prison, the circuit court did not amend

father’s right to the undefined “reasonable visitation” granted him in the final decree of divorce.

Hence, the circuit court was not required to find that a material change in circumstances had

occurred since the divorce decree was entered.

        Additionally, we reject father’s assertion that the circuit court failed, in determining the best

interests of child for visitation, to consider the requisite factors set forth in subdivisions 3 and 8 of

Code § 20-124.3.1


        1
            Subdivisions 3 and 8 of Code § 20-124.3 provide as follows:

                        In determining best interests of a child for purposes of
                 determining custody or visitation arrangements . . . , the court shall
                 consider the following:

                 *          *             *        *           *           *           *

                         3. The relationship existing between each parent and each
                 child, giving due consideration to the positive involvement with
                 the child’s life, the ability to accurately assess and meet the
                 emotional, intellectual and physical needs of the child;

                 *          *             *        *           *           *           *

                        8. The reasonable preference of the child, if the court
                 deems the child to be of reasonable intelligence, understanding,
                 age and experience to express such a preference; . . . .

                                                   -7-
        “In matters of custody, visitation, and related child care issues, the court’s paramount

concern is always the best interests of the child.” Farley v. Farley, 9 Va. App. 326, 327-28, 387

S.E.2d 794, 795 (1990).

                         Code § 20-124.3 specifies the factors a court “shall consider”
                in determining the “best interests of a child for . . . custody or
                visitation.” Although the trial court must examine all factors set out
                in Code § 20-124.3, “it is not ‘required to quantify or elaborate
                exactly what weight or consideration it has given to each of the
                statutory factors.’”

Brown v. Brown, 30 Va. App. 532, 538, 518 S.E.2d 336, 338 (1999) (quoting Sargent v. Sargent, 20

Va. App. 694, 702, 460 S.E.2d 596, 599 (1995) (quoting Woolley v. Woolley, 3 Va. App. 337, 345,

349 S.E.2d 422, 426 (1986))). Hence, while “Code § 20-124.3 requires the trial court to identify the

fundamental, predominating reason or reasons underlying its decision,” the court is not required “to

address all aspects of the decision making process, as one would expect from comprehensive

findings of fact and conclusions of law.” Lanzalotti v. Lanzalotti, 41 Va. App. 550, 554, 586 S.E.2d

881, 882 (2003). “As long as evidence in the record supports the trial court’s ruling and the trial

court has not abused its discretion, its ruling must be affirmed on appeal.” Brown, 30 Va. App. at

538, 518 S.E.2d at 338.

        Here, the record establishes that great-grandparents and father presented extensive evidence

regarding father’s existing relationship with child, including his involvement with child’s life during

the in-person visits at the prison and through phone calls and letters at other times. The record also

establishes that, although the circuit court refused to interview child regarding his visitation

preference, mother admitted that, if asked, child would say, like most four-year-old children, that he

wanted to visit father at the prison. In rendering her ruling from the bench, the circuit court judge

stated as follows:

                        The Court doesn’t think it’s appropriate for visitation at a
                prison. It’s very inappropriate for a child to visit – I think it’s self
                evident with the testimony from the mother that it would not be in
                                                   -8-
                the child’s best interest. To do that the Court looks at [Code
                § 20-124.3] and it finds that it is not in the best interest of the child to
                have him visit the father at the facility where he is now. If they come
                up with another arrangement, fine, visitation is okay, but not at the
                facility.

In the January 29, 2003 order, the circuit court specified that it reached its decision that it was not in

child’s best interests to visit father in prison only after “considering the criteria in . . . Code

§ 20-124.3.” Conversely, nothing in the record proves father’s assertion that the circuit court failed

to consider the factors set forth in subdivisions 3 and 8 of Code § 20-124.3.

        Thus, in light of the record’s abundance of evidence regarding father’s existing relationship

with child, mother’s admission regarding child’s preference, and the circuit court’s declarations that

it considered the factors enumerated in Code § 20-124.3, we cannot say, as father would have us do,

that the circuit court failed to consider father’s existing relationship with child and child’s

preference. Having taken those factors into account, the circuit court determined nonetheless that it

was not in child’s best interests to visit father in prison.

        Moreover, we cannot say that the circuit court abused its discretion in refusing to permit

great-grandparents to take child to visit father in prison. Additionally, the evidence in the record

amply supports the court’s decision. Regarding child’s visits with father in prison, mother testified

that child “started having nightmares and . . . wetting the bed when he [came] back” from seeing

father in prison. Mother further testified that, after being “totally toilet trained” when he was three

years old, child “never had an accident at night” until after he started visiting father in prison.

Mother added that “most of [child’s nightmares] occur[ed]” when “he [came] home” after seeing

father in prison. Concerned about child’s nightmares and bed wetting, mother took child to see

Dr. Bierenbaum on April 16, 2002, April 29, 2002, and August 26, 2002. Dr. Bierenbaum

confirmed that mother reported to him that child, who was “typically . . . not a bed wetter,”

experienced bed wetting and nightmares following his visits with father in prison. Dr. Bierenbaum

                                                    -9-
further testified that, despite his having evaluated and treated child in the past, mother had never

told him that child suffered from nightmares prior to the visits in April 2000. An expert in the field

of child clinical psychology, Dr. Bierenbaum stated that bed wetting by a child who was toilet

trained through the night, “just as with the nightmares, . . . would suggest that something frightening

or upsetting or worrisome had occurred.”

        We conclude, therefore, that the circuit court did not err in denying great-grandparents’

request for authorization to take child to visit father in prison.

                                 III. CHILD’S MEDICAL RECORDS

        Father contends, on appeal, that the circuit court erred in granting mother’s request to deny

him access to child’s medical records. In support of that contention, father argues that the circuit

court’s rationale for its decision directly conflicted with the terms of Code § 20-124.6 and that there

was no evidence to support a finding that good cause existed under Code § 20-124.6 to deny him

access to child’s medical records.2

        Upon reviewing the record, we conclude that father’s argument that the circuit court’s

reasoning violated Code § 20-124.6 is procedurally barred under Rule 5A:18.

        Rule 5A:18 provides, in pertinent part, that “[n]o ruling of the trial court . . . will be

considered as a basis for reversal unless the objection was stated together with the grounds therefor

at the time of the ruling.”

                        “Under Rule 5A:18 we do not notice the trial errors for which
                no timely objection was made except in extraordinary situations
                when necessary to enable us to attain the ends of justice. The
                laudatory purpose behind Rule 5A:18, and its equivalent Supreme
                Court Rule 5:25, frequently referred to as the contemporaneous
                objection rules, is to require that objections be promptly brought to
                the attention of the trial court with sufficient specificity that the

        2
         Code § 20-124.6 provides, in pertinent part, that “neither parent, regardless of whether
such parent has custody, shall be denied access to the academic, medical, hospital or other health
records of that parent’s minor child unless otherwise ordered by the court for good cause
shown.” (Emphases added.)
                                               - 10 -
                alleged error can be dealt with and timely addressed and corrected
                when necessary. The rules promote orderly and efficient justice and
                are to be strictly enforced except where the error has resulted in
                manifest injustice. Errors can usually be corrected in the trial court,
                particularly in a bench trial, without the necessity of appeal.”

Bazemore v. Commonwealth, 42 Va. App. 203, 218, 590 S.E.2d 602, 609 (2004) (en banc) (quoting

Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989)). Moreover, “[m]aking

one specific argument on an issue does not preserve a separate legal point on the same issue for

review.” Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc),

aff’d, No. 040019 (Va. Sup. Ct. Order of 10/15/04). Hence, a specific objection and “argument

must be made to the trial court at the appropriate time, or the allegation of error will not be

considered on appeal.” Id. “To hold otherwise, would invite parties to remain silent at trial,

possibly resulting in the trial court committing needless error.” Gardner v. Commonwealth, 3

Va. App. 418, 423, 350 S.E.2d 229, 232 (1986).

        Here, as memorialized in the January 29, 2003 order, the circuit court granted mother’s

motion to deny father access to child’s medical records, finding that “good cause [was] shown”

pursuant to Code § 20-124.6 for denying such access because father was “not in a position to

make any decisions regarding the child’s medical care and treatment.” In explaining the

rationale for that ruling, the circuit court judge stated at the November 12, 2002 hearing that father

was not entitled to child’s medical records because he did not have joint custody of child. “[W]hen

it’s not joint custody,” the judge explained, “the other party is not really entitled to the medical

records because they won’t be participating in making decisions with reference to the medical care

that’s provided to the child.”

        Despite having the opportunity to do so, father asserted no objection at the hearing to the

court’s stated reasoning. Likewise, father noted no objection to entry of the January 29, 2003 order.

In other words, father remained silent and never brought to the circuit court’s attention the error he

                                                  - 11 -
now asks us to redress on appeal. Thus, the circuit court never had the opportunity to consider,

address, or correct its use of the erroneous standard. Moreover, our review of the record reveals no

reason to invoke the “ends of justice” or “good cause” exceptions to Rule 5A:18. See Edwards, 41

Va. App. at 761, 589 S.E.2d at 448 (“We will not consider, sua sponte, a ‘miscarriage of justice’

argument under Rule 5A:18.”); M. Morgan Cherry & Assocs. v. Cherry, 38 Va. App. 693, 702,

568 S.E.2d 391, 396 (2002) (en banc) (holding that the “good cause” exception to Rule 5A:18

will not be invoked where appellant had the opportunity to raise the issue at trial but did not do

so). We hold, therefore, that father is barred by Rule 5A:18 from raising this particular claim of

error for the first time on appeal.

        Turning to father’s argument that there was no evidence to support a finding that good cause

existed under Code § 20-124.6 to deny him access to child’s medical records, we note that the

following principles are pertinent to the resolution of this issue:

                        “‘The trial court’s decision, when based upon an ore tenus
                hearing, is entitled to great weight and will not be disturbed unless
                plainly wrong or without evidence to support it.’ [Venable v.
                Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986).]
                ‘Certainly it is true that the legal rights of the parent should be
                respected . . . but the welfare of the child is to be regarded more
                highly than the technical legal rights of the parent.’ [Forbes v.
                Haney, 204 Va. 712, 716, 133 S.E.2d 533, 536 (1963).]”

Green v. Richmond Dep’t of Soc. Servs., 35 Va. App. 682, 686-87, 547 S.E.2d 548, 550 (2001)

(quoting L.C.S. v. S.A.S., 19 Va. App. 709, 724, 453 S.E.2d 580, 588 (1995)).

        Here, the evidence established that, following his incarceration, father requested copies of

child’s medical records from the Children’s Clinic and from Dr. Bierenbaum. From the records he

obtained from the Children’s Clinic, father discovered only that mother “hadn’t taken [child] to the

doctor on a day that she told [great-grandparents] she had” and that child “had had a virus.” He did

not receive any records directly from Dr. Bierenbaum because Dr. Bierenbaum did not want to

release child’s records to him without being able to meet with him to explain “what the records
                                                  - 12 -
meant” and Dr. Bierenbaum “couldn’t take time out of his schedule to come to the institution” to

meet with him. Father testified that he wanted access to child’s medical records because he “wanted

to find out what the doctors were saying about [child].” Asked what he would do if he found out

child had a medical problem, father replied that he would call great-grandparents “to see if

somebody could help [child].” Nothing in the record indicates that father “has any specialized

training or education . . . that would provide him with the ability to help [child] by reviewing

[child’s] medical records.” Id. at 688, 547 S.E.2d at 550-51.

        Dr. Bierenbaum explained in a letter to father that it was his policy not to “send copies of

reports to parents with whom [he had] not met directly because of [his] concern about possible

misinterpretation of findings.” Dr. Bierenbaum further advised father that father could call him

collect to discuss his sessions with child, but father never called, instead responding by letter that he

needed Dr. Bierenbaum’s phone number, despite the fact that “the phone number . . . was on the

letterhead.” Dr. Bierenbaum also testified that mother reported to him that father was a

“provocative, controlling and abusive man,” who “was more concerned about his own needs as a

father than about the emotional well-being of . . . child.”

        Asked why father should not have access to child’s medical reports, mother testified that

father “twist[ed] the truth” to serve his own purposes and had a warped sense of reality in which he

was never at fault. He would use child’s medical records against her, she indicated, “to keep . . . the

court proceedings going forever,” which was “not healthy for [child].” Mother further testified that

she had to get a block on her phone because father called her constantly and would call her back

constantly if she hung up or did not accept his collect phone calls.

        From this evidence, the circuit court judge, as finder of fact, could properly conclude that,

had he access to them, father would use child’s medical records in a manner inconsistent with

child’s best interests. See id. at 688, 547 S.E.2d at 551 (noting that the trier of fact ascertains the

                                                  - 13 -
witnesses’ credibility and “the weight to be given to [their] testimony” and exercises “discretion in

accepting or rejecting [their] testimony”). Conversely, no evidence in the record establishes that

father’s access to child’s medical records would benefit child. We hold, therefore, that the evidence

in the record supports the circuit court’s determination that good cause existed to deny father access

to child’s medical records.

                                         IV. CONCLUSION

       For these reasons, we affirm the circuit court’s rulings prohibiting great-grandparents from

taking child to see father in prison and denying father access to child’s medical records.

                                                                                             Affirmed.




                                                - 14 -
