Brown v. Gordon, Record No. 1906-15-1 (June 14, 2016)
Brown (mother) appeals a custody and visitation order, which granted sole legal and physical custody of the parties’ minor child to Gordon (father). Mother argues that the trial court erred by (1) violating her right to a de novo hearing because it denied her motion to relieve the guardian ad litem (the GAL) and allowed the GAL to issue the same report that was presented to the Virginia Beach Juvenile and Domestic Relations District Court (the JDR court); (2) granting sole custody of the minor child to father, even though he was absent from the child’s life for four years; (3) granting sole custody of the minor child to father, even though he previously had contested an increase in child support when the child was in mother’s custody; and (4) granting sole custody of the minor child to father, without first speaking with the minor child.
The Court noted that on the first allegation the mother’s arguments differed from her arguments to the trial court. During the trial, she asked the court to relieve the GAL because she thought he was biased and submitted reports that were similar to what was filed in the JDR court. “[The court] will not consider an argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998); see Rule 5A:18. “The purpose of Rule 5A:18 is to allow the trial court to correct in the trial court any error that is called to its attention.” Lee, 12 Va. App. at 514, 404 S.E.2d at 737. Since mother did not raise the argument below that she is arguing on appeal, the Court will not consider her first assignment of error. Then with the second and third allegations, the court stated that “an objection [must be] stated with reasonable certainty at the time of the ruling.” (Emphasis added). The purpose of Rule 5A:18 is to “enable the ruling court to take any necessary corrective action,” Saunders v. Commonwealth, 38 Va. App. 192, 195, 562 S.E.2d 367, 369 (2002), and to “rule intelligently on the issues presented,” Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). Therefore the court will not consider those allegations of error either. "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. The court upheld trial court's custody and visitation determination as mother failed to preserve her arguments for appeal." The Court concluded that the fourth alleged error could not be appealed because the trial court took mother’s motion under advisement, but never ruled on it. “If [the] opportunity [to address an issue] is not presented to the trial court, there is no ruling by the trial court on the issue, and thus no basis for review or action by this Court on appeal.” Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 526, 636 S.E.2d 416, 420 (2006). An appellate court can only “determine whether or not the rulings and judgment of the court below . . . were correct.” Jackson v. Chesapeake & Ohio Ry. Co., 179 Va. 642, 651, 20 S.E.2d 489, 493 (1942).