COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Petty and Senior Judge Coleman Argued by teleconference
TIMOTHY MARTIN BARRETT MEMORANDUM OPINION* BY v. Record No. 0902-06-3 JUDGE WILLIAM G. PETTY OCTOBER 17, 2006 VALERIE JILL RHUDY BARRETT
FROM THE CIRCUIT COURT OF GRAYSON COUNTY J. Colin Campbell, Judge
Timothy Martin Barrett, pro se.
Maria Timoney (Southwest Virginia Legal Aid Society, on brief), for appellee.
Appellant Timothy Martin Barrett (father) appeals a custody order entered pursuant to Code
§ 20-124.3, awarding sole custody of his six children to Valerie Jill Rhudy Barrett (mother) and
providing limited visitation rights to him. He argues the trial court erroneously (1) entered several
rulings concerning the testimony of Dr. Susan Garvey, a psychologist; (2) failed to consider the
requisite statutory factors set forth in Code § 20-124.3; and (3) failed to sustain his motion to strike
the guardian ad litem’s report.
For reasons set forth below, we affirm the judgment of the trial court.
I. BACKGROUND
On appeal, “[t]he judgment of the trial court is presumed correct and he who asserts the
contrary is required to overcome the presumption by record proof . . . .” Kaufman v. Kaufman, 7
Va. App. 488, 499, 375 S.E.2d 374, 380 (1988). The appellant has the burden of submitting a
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. proper record to the appellate court. Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d
2, 6 (1993). We must decide the case “upon the record and cannot base [our] decision upon
appellant’s petition or brief, or statements of counsel in open court. We may act only upon facts
contained in the record.” Id.
During the parties’ eleven-year marriage, six children were born. When the parties
divorced in August 2002, mother was awarded custody of the six children. Thereafter, father
filed petitions in the Juvenile and Domestic Relations District Court of Grayson County seeking
a change in custody. On January 27, 2003, the juvenile and domestic relations district court
awarded custody of the six children to mother with limited visitation to father.
On January 29, 2003, father appealed de novo to the Circuit Court of Grayson County
(trial court). Following protracted proceedings, the trial court issued an opinion letter on
February 8, 2006, setting forth findings and awarding mother sole custody of the six children
with limited visitation to father. In the opinion letter, the trial court directed mother’s attorney to
prepare a written order reflecting the trial court’s findings. Thereafter, the trial court issued a
written order on March 9, 2006, which is the subject of this appeal.
II. ANALYSIS
Father argues the trial court made several errors concerning the testimony and opinion of
Dr. Susan Garvey1 including: (a) failing to quash a subpoena duces tecum issued by the mother
to secure Dr. Zoll’s2 records, (b) permitting Dr. Garvey to testify from Dr. Zoll’s records without
obtaining father’s permission in accordance with Code § 20-124.3:1; (c) permitting Dr. Garvey
to testify without requiring a proper foundation for the admission of her opinion; and (d)
1 Dr. Garvey is a psychologist who testified on behalf of the mother. 2 Dr. Zoll is a psychologist retained by Timothy Barrett as an expert witness to evaluate his parenting abilities.
-2- admitting Dr. Garvey’s report. Further, he asserts the trial court erred by failing to strike the
guardian ad litem’s report and by failing to consider each factor in Code § 20-124.3.
Testimony of Dr. Garvey; Admission of Guardian Ad Litem’s Report
As the appellant, father has the burden of demonstrating by the record that reversible error
was committed. See Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992).
Mere unsupported assertions of error “do not merit appellate consideration.” Buchanan v.
Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Furthermore this Court “will not
search the record for errors in order to interpret the appellant’s contention and correct
deficiencies in a brief.” Id. Nor is it this Court’s “function to comb through the record . . . in
order to ferret-out for ourselves the validity of [appellant’s] claims . . . .” Fitzgerald v. Bass, 6
Va. App. 38, 56 n.7, 366 S.E.2d 615, 625 n.7 (1988) (en banc).
Rule 5A:25 provides in pertinent part: “an appendix shall be filed by the appellant in all
cases” and shall include “any testimony and other incidents of the case germane to the questions
presented.” Rule 5A:25(a) & (c). The appendix and seven copies must be filed no later than the
date appellant files the opening brief. See Rules 5A:25(a) & (b); 5A:19(f).
In discussing the importance of the appendix, the Supreme Court explained:
The appendix is a tool vital to the function of the appellate process in Virginia. Without it, the seven Justices of this Court would have to pass the original record from one to the other. Much of the contents, though material at trial, may be utterly irrelevant to the issues posed on appeal. By requiring the publication and distribution of an appendix which excludes all irrelevancies, the Rules of Court expedite the adjudication of the appeal and reduce the costs. By requiring the inclusion of all parts of the record germane to the issues, the Rules promote the cause of plenary justice.
Thrasher v. Burlage, 219 Va. 1007, 1009-10, 254 S.E.2d 64, 66 (1979) (per curiam).
-3- In this case, the appendix fails to contain everything germane to the questions presented
on appeal. The record on appeal consists of twenty-two volumes of transcripts; however, the
appendix contains only nineteen pages of transcribed testimony. Absent from the appendix are
pertinent transcript pages cited by father in his opening brief and trial exhibits introduced by the
guardian ad litem during the proceedings.3 Among the omitted transcript pages are those
portions of the transcripts identified by father as containing proper objections to preserve issues
for appeal as well as those portions containing the challenged testimony.
Compliance with Rule 5A:25 by filing an appropriate appendix is “essential to an
informed collegiate decision.” Thrasher, 219 Va. at 1010, 254 S.E.2d at 66. Our review of this
case leads us to conclude that the portions of the record cited but not included in the appendix are
essential to the resolution of the issues raised by father concerning the admissibility of Dr.
Garvey’s testimony and her report, the guardian ad litem’s report, and the issue concerning the
motion to quash. Father’s stated justification that it would be cost prohibitive to include all the
pertinent transcript pages in the appendix does not excuse his failure to do so. Because father
failed to file an adequate appendix in compliance with the Rules, the record is insufficient to
decide these issues. Patterson v. City of Richmond, 39 Va. App. 706, 717, 576 S.E.2d 759,
764-65 (2003).
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Petty and Senior Judge Coleman Argued by teleconference
TIMOTHY MARTIN BARRETT MEMORANDUM OPINION* BY v. Record No. 0902-06-3 JUDGE WILLIAM G. PETTY OCTOBER 17, 2006 VALERIE JILL RHUDY BARRETT
FROM THE CIRCUIT COURT OF GRAYSON COUNTY J. Colin Campbell, Judge
Timothy Martin Barrett, pro se.
Maria Timoney (Southwest Virginia Legal Aid Society, on brief), for appellee.
Appellant Timothy Martin Barrett (father) appeals a custody order entered pursuant to Code
§ 20-124.3, awarding sole custody of his six children to Valerie Jill Rhudy Barrett (mother) and
providing limited visitation rights to him. He argues the trial court erroneously (1) entered several
rulings concerning the testimony of Dr. Susan Garvey, a psychologist; (2) failed to consider the
requisite statutory factors set forth in Code § 20-124.3; and (3) failed to sustain his motion to strike
the guardian ad litem’s report.
For reasons set forth below, we affirm the judgment of the trial court.
I. BACKGROUND
On appeal, “[t]he judgment of the trial court is presumed correct and he who asserts the
contrary is required to overcome the presumption by record proof . . . .” Kaufman v. Kaufman, 7
Va. App. 488, 499, 375 S.E.2d 374, 380 (1988). The appellant has the burden of submitting a
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. proper record to the appellate court. Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d
2, 6 (1993). We must decide the case “upon the record and cannot base [our] decision upon
appellant’s petition or brief, or statements of counsel in open court. We may act only upon facts
contained in the record.” Id.
During the parties’ eleven-year marriage, six children were born. When the parties
divorced in August 2002, mother was awarded custody of the six children. Thereafter, father
filed petitions in the Juvenile and Domestic Relations District Court of Grayson County seeking
a change in custody. On January 27, 2003, the juvenile and domestic relations district court
awarded custody of the six children to mother with limited visitation to father.
On January 29, 2003, father appealed de novo to the Circuit Court of Grayson County
(trial court). Following protracted proceedings, the trial court issued an opinion letter on
February 8, 2006, setting forth findings and awarding mother sole custody of the six children
with limited visitation to father. In the opinion letter, the trial court directed mother’s attorney to
prepare a written order reflecting the trial court’s findings. Thereafter, the trial court issued a
written order on March 9, 2006, which is the subject of this appeal.
II. ANALYSIS
Father argues the trial court made several errors concerning the testimony and opinion of
Dr. Susan Garvey1 including: (a) failing to quash a subpoena duces tecum issued by the mother
to secure Dr. Zoll’s2 records, (b) permitting Dr. Garvey to testify from Dr. Zoll’s records without
obtaining father’s permission in accordance with Code § 20-124.3:1; (c) permitting Dr. Garvey
to testify without requiring a proper foundation for the admission of her opinion; and (d)
1 Dr. Garvey is a psychologist who testified on behalf of the mother. 2 Dr. Zoll is a psychologist retained by Timothy Barrett as an expert witness to evaluate his parenting abilities.
-2- admitting Dr. Garvey’s report. Further, he asserts the trial court erred by failing to strike the
guardian ad litem’s report and by failing to consider each factor in Code § 20-124.3.
Testimony of Dr. Garvey; Admission of Guardian Ad Litem’s Report
As the appellant, father has the burden of demonstrating by the record that reversible error
was committed. See Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992).
Mere unsupported assertions of error “do not merit appellate consideration.” Buchanan v.
Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Furthermore this Court “will not
search the record for errors in order to interpret the appellant’s contention and correct
deficiencies in a brief.” Id. Nor is it this Court’s “function to comb through the record . . . in
order to ferret-out for ourselves the validity of [appellant’s] claims . . . .” Fitzgerald v. Bass, 6
Va. App. 38, 56 n.7, 366 S.E.2d 615, 625 n.7 (1988) (en banc).
Rule 5A:25 provides in pertinent part: “an appendix shall be filed by the appellant in all
cases” and shall include “any testimony and other incidents of the case germane to the questions
presented.” Rule 5A:25(a) & (c). The appendix and seven copies must be filed no later than the
date appellant files the opening brief. See Rules 5A:25(a) & (b); 5A:19(f).
In discussing the importance of the appendix, the Supreme Court explained:
The appendix is a tool vital to the function of the appellate process in Virginia. Without it, the seven Justices of this Court would have to pass the original record from one to the other. Much of the contents, though material at trial, may be utterly irrelevant to the issues posed on appeal. By requiring the publication and distribution of an appendix which excludes all irrelevancies, the Rules of Court expedite the adjudication of the appeal and reduce the costs. By requiring the inclusion of all parts of the record germane to the issues, the Rules promote the cause of plenary justice.
Thrasher v. Burlage, 219 Va. 1007, 1009-10, 254 S.E.2d 64, 66 (1979) (per curiam).
-3- In this case, the appendix fails to contain everything germane to the questions presented
on appeal. The record on appeal consists of twenty-two volumes of transcripts; however, the
appendix contains only nineteen pages of transcribed testimony. Absent from the appendix are
pertinent transcript pages cited by father in his opening brief and trial exhibits introduced by the
guardian ad litem during the proceedings.3 Among the omitted transcript pages are those
portions of the transcripts identified by father as containing proper objections to preserve issues
for appeal as well as those portions containing the challenged testimony.
Compliance with Rule 5A:25 by filing an appropriate appendix is “essential to an
informed collegiate decision.” Thrasher, 219 Va. at 1010, 254 S.E.2d at 66. Our review of this
case leads us to conclude that the portions of the record cited but not included in the appendix are
essential to the resolution of the issues raised by father concerning the admissibility of Dr.
Garvey’s testimony and her report, the guardian ad litem’s report, and the issue concerning the
motion to quash. Father’s stated justification that it would be cost prohibitive to include all the
pertinent transcript pages in the appendix does not excuse his failure to do so. Because father
failed to file an adequate appendix in compliance with the Rules, the record is insufficient to
decide these issues. Patterson v. City of Richmond, 39 Va. App. 706, 717, 576 S.E.2d 759,
764-65 (2003).
Compliance with Code § 20-124.3
Father argues the trial court erred by failing to consider the requisite statutory factors of
Code § 20-124.3 when awarding sole custody of the children to mother. He alleges that because
the trial court’s March 9, 2006 order fails to set out every statutory factor, the trial court must not
have considered each factor when deciding this matter.
3 Rule 5A:25(c)(6) requires that the appendix shall include exhibits “that can reasonably be reproduced.” Although father references three exhibits in his opening brief, he failed to include the exhibits in the appendix or explain why they could not reasonably be reproduced.
-4- In determining child custody matters, “‘the court’s paramount concern is always the best
interests of the child.’” Vissicchio v. Vissicchio, 27 Va. App. 240, 246, 498 S.E.2d 425, 428
(1998) (quoting Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990)). The trial
court’s decision concerning the best interests of a child “‘will not be set aside unless plainly
wrong or without evidence to support it.’” Id. (quoting Farley, 9 Va. App. at 328, 387 S.E.2d at
795 (citation omitted)). When evaluating the trial court’s rulings on appeal, “we view the
evidence in the light most favorable to the prevailing party.” Lanzalotti v. Lanzalotti, 41
Va. App. 550, 554, 586 S.E.2d 881, 882 (2003). “‘A trial court is presumed to have thoroughly
weighed all the evidence, considered the statutory requirements, and made its determination
based on the child’s best interests.’” Logan v. Fairfax County Dep’t of Human Dev., 13
Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (quoting Farley, 9 Va. App. at 329, 387 S.E.2d at
796).
Code § 20-124.3 sets out the factors a trial court shall consider when deciding the best
interests of a child for custody and visitation purposes. See Brown v. Brown, 30 Va. App. 532,
538, 518 S.E.2d 336, 338 (1999). Furthermore, Code § 20-124.3 requires that the trial court
“communicate to the parties the basis of the decision either orally or in writing.” We have
interpreted this language to require the trial court “to identify the fundamental, predominating
reason or reasons underlying its decision. This level of specificity does not require the [judge] to
address all aspects of the decisionmaking process . . . .” Kane v. Szymczak, 41 Va. App. 365,
373-74, 585 S.E.2d 349, 353 (2003).
Here, the trial court communicated to the parties the underlying basis of its decision
through a well-reasoned, seven-page letter opinion.4 While we agree with father’s assertion that
4 Contrary to the father’s assertion, Code § 20-124.3 does not require the trial court to include the reasons for its decision in the final order. The trial court’s reasoning need only be communicated “orally or in writing.”
-5- the trial court is required to 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.’” 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)). Nor is the trial court
required to address each and every factor in explaining the basis for its decision. Following
entry of the opinion letter, the trial court entered a written order containing only the central
points of its ruling. From the record before us, we conclude that the trial court considered the
necessary statutory factors in determining the best interests of the children and adequately
communicated its reasoning to the parties.
III. CONCLUSION
In conclusion, we are barred from considering issues one and three presented on appeal
because of father’s failure to provide the Court with a sufficient appendix containing parts of the
record germane to the questions presented on appeal. After considering issue two, we conclude
the trial court’s order satisfied the requirements of Code § 20-124.3. Accordingly, we affirm the
judgment of the trial court.
Affirmed.
-6-