Daniel J. Potas v. Marcia M. Potas, 0939171

Background

Parties divorced in 2015 and incorporated a separation agreement (Sept. 24, 2015) providing joint legal custody, mother as primary physical custodian, and specific visitation and support terms.
After the decree (nunc pro tunc Sept. 24, 2015), repeated hearings (Apr 13, 2016; Jun 29, 2016; Sep 26, 2016; May 10, 2017) addressed custody, visitation, and related disputes; temporary orders progressively restricted father’s visitation, including suspension of overnight visits with daughter and no required visitation with son.
On Nov. 9, 2016 the court entered a final child support order (not appealed by father); on Jun 6, 2017 the court entered a final custody and visitation order awarding mother sole legal and physical custody, restricting father’s contact with the son, prescribing a limited schedule for the daughter, denying mother’s request for trial attorney’s fees, and splitting guardian ad litem fees.
Father appealed, asserting (1) modification of custody/visitation without adjudicating parental fitness and in violation of the Agreement; (2) improper awards requiring him to pay $858 (rate-lock extension) and $9,000 (mother’s attorney fees) contrary to the Agreement; (3) child support increased above the Agreement without proper service; and (4) finalizing temporary orders inconsistent with the Agreement.
The trial court found material changed circumstances (communication deterioration; father’s words/actions harming children; failure to cooperate with therapy) and concluded modification served the children’s best interests under Code § 20-124.3.

Issues

Issue	Potas's Argument	Mother/Trial Court Argument	Held
Whether court erred by modifying custody/visitation without adjudicating parental fitness	Court must adjudicate parental fitness before modifying visitation; orders violate the Agreement	Agreement was incorporated into decree and subject to modification under Code § 20-108; no fitness finding required; court found changed circumstances and best interests supported change	Modification affirmed — due process satisfied (notice and hearings); court may modify without declaring parent unfit; record supports changed circumstances and best interests finding
Whether court erred ordering father to pay $858 rate-lock fee and $9,000 in attorney fees	Awards violate the Agreement	Father waived timely objections; father voluntarily paid $858; trial court properly awarded fees based on conduct; Rule 5A:18 bars untimely appeals	Issues waived for appeal due to lack of timely objection and voluntary payment; claims not considered
Whether court erred by increasing child support above Agreement without service	Child support change not properly served; order inconsistent with Agreement	Final child support order entered Nov 9, 2016 was not appealed within applicable time; it became final under Rule 1:1	Claim barred as untimely; father failed to timely appeal the final child support order
Whether mother entitled to appellate attorney’s fees	(Not raised as separate argument on appeal)	Mother requested appellate fees and costs	Affirmed; case remanded for trial court to set reasonable appellate attorney’s fees and costs

Key Cases Cited

D’Ambrosio v. D’Ambrosio, 45 Va. App. 323 (appellate court presumption that trial court considered statutory factors)
Petry v. Petry, 41 Va. App. 782 (standard for modifying custody: changed circumstances + best interests)
Tidwell v. Late, 67 Va. App. 668 (due process requires notice and opportunity to be heard)
Citizens Bank & Trust Co. v. Crewe Factory Sales Corp., 254 Va. 355 (voluntary payment of a judgment bars appeal)
Marshall v. Commonwealth, 26 Va. App. 627 (Rule 5A:18 timeliness requirement for objections on appeal)