Home / Fulltext Opinions / Virginia Court of Appeals / MERCADO v. AYMOND-GONZALES




APRIL 28, 1998
Record No. 2588-97-4






Stanley P. Klein, Judge
Present: Judges Benton, Coleman and Willis

(Hilario Mercado, Jr., pro se, on briefs).

(Paula W. Rank; Byrd, Mische, Bevis, Bowen, Joseph &
O’Connor, P.C., on brief), for appellee.

Hilario Mercado, Jr., appeals the decision of the circuit
court awarding custody of the parties’ minor child to Mary L.
Aymond?Gonzales, the child’s mother, and ordering father to pay
child support and attorney’s fees. Father states his issues on
appeal as follows: (1) did the circuit court err when it allowed
mother to present her case before father, the complainant,
presented his case; (2) did the circuit court abuse its
discretion when it openly communicated a predisposition of
father’s case during the fact finding hearings; and (3) was the
circuit court’s predisposition prejudicial to father and
detrimental to ongoing settlement negotiations. In her brief,
mother raises two questions: (1) whether father properly made and
preserved his objections and exceptions to the rulings of the
trial court; and (2) whether the matter should be remanded to the
trial court for an award of appellate attorney’s fees. 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. We grant
mother’s request for appellate attorney’s fees and award her $300
for attorney’s fees.

The record includes a transcript of the May 27, 1997 hearing
and the exhibits. Father appeared pro se at the
hearing. The court entered the final order on September 30, 1997.
Father endorsed the decree as follows:

Seen and objected for: proceedings that did not afford me due
process, and for those items enumerated [sic] in my letter to Ms.
Rank, Defendant counsel, of September 25, 1997, items
"a." through "i," attached (served by fax
September 25, 1997).

The letter to which father referred was attached to the
court’s order, and described "areas of disagreement"
with a letter sent to father by wife’s counsel.

Father’s letter request to the clerk of the circuit court,
seeking an extension of time within which to file a written
statement of facts, was denied by the trial court. See
Rule 5A:3(b). Father indicated to this Court that the record on
appeal was sufficient for a determination of the questions
presented on the merits. We agree. The record includes the
transcript of the hearing.


Father contends that the trial judge committed reversible
error when it allowed mother to present her case before he
presented his at the May 27, 1997 hearing. A review of the
hearing transcript demonstrates that although mother’s counsel
presented an opening statement first, father was allowed to
present his evidence first. In addition, father failed to object
to the presentation of the opening statement by mother. The Court
of Appeals will not consider an argument on appeal that was not
presented to the trial court. See Jacques v.
, 12 Va. App. 591, 593, 405 S.E.2d 630, 631
(1991). Rule 5A:18 bars our consideration of this question on
appeal. Moreover, the record does not reflect any reason to
invoke the good cause or ends of justice exceptions to Rule
5A:18. The trial judge has discretion to determine the order of
presentation of evidence in a case. Floyd v. Commonwealth,
219 Va. 575, 582, 249 S.E.2d 171, 175 (1978). The record does not
indicate an abuse of discretion.


Father also alleges that the trial judge’s comments during the
hearing demonstrated a "predisposition" concerning his
case. For example, father alleges that the trial judge denied
father’s attempt to call mother’s counsel as a witness. However,
the trial judge stated the following:

If it gets to a point where there’s an honest dispute as to
what was said, and [wife’s counsel] then becomes a material
witness, then I’m going to let you call her because it would be
improper and unfair to prevent you from doing so. But I’m not
going to let you start off by taking her out of this case.

Father did not object.

Father also called his former counsel to testify concerning
negotiations. In order to protect father’s rights, the trial
judge noted the following:

[W]hat [father’s former counsel] testified to on May 19th
outside of your presence, because you decided not to be there at
noon because you thought the case wasn’t going to be heard until
some time after lunch, I am not going to consider today because I
want to make sure that you have an opportunity to have presented
in front of you the evidence that I’m going to consider.

Father also points to a clarifying question asked by the judge
concerning the phrase "honest agreement" used by

Father did not object to these statements when they were made
or otherwise preserve any objection to the trial judge’s handling
of the case. Father did not move to recuse the trial judge on the
ground that he was biased. Moreover, upon our review of the
record, we find no indication that the trial judge prejudged
father’s case. On the contrary, the hearing transcript
demonstrates that the trial judge guided father through the
hearing in an effort to resolve the outstanding factual question
regarding the existence of an agreement between the parties. The
record does not reflect any error.


Father’s last contention is that the trial judge’s prejudicial
comments negatively affected wife’s willingness to settle. As
noted above, we find no indication of bias or prejudice in the
trial judge’s comments. Moreover, it is axiomatic that a party’s
willingness to settle varies based upon the trial court’s
assessment of the merits. Settlement negotiations are fluid, not
static. The record does not reflect any error.


Mother seeks an award of appellate attorney’s fees. Under the
circumstances of this case, we award the mother $300 for
appellate attorney’s fees.

Accordingly, the decision of the circuit court is summarily






[1] Pursuant to Code ? 17?116.010 this
opinion is not designated for publication.