Introduction 

The Court of Appeals af irmed the divorce decree because the husband raised his objection to the expert witness too late, and the overwhelming evidence of cruelty made any possible error harmless. 

In Fairfax v. Fairfax (Record No. 2148-23-4, Va. Ct. App. Apr. 8, 2025), the Court of Appeals of Virginia upheld a Stafford County divorce decree, rejecting a husband’s claim that the trial court wrongly allowed his wife’s expert witness - a marriage counselor - to testify. The Court found that his objections were made too late and, even if the counselor’s testimony was admitted in error, the overwhelming evidence of cruelty in the marriage made any such error harmless. 

Background 

The trial court heard extensive testimony about long-term abuse, including violence witnessed by the couple’s children, and permitted the wife’s marriage counselor to testify as an expert on her psychological condition. 

Duane and Tracey Fairfax married in 1992 while both were serving in the U.S. military. After more than 30 years of marriage, they separated in 2022. During the proceedings, Wife counterclaimed for divorce on the grounds of cruelty, describing years of verbal and physical abuse. Their adult children testified to multiple incidents of violence, including occasions when Husband choked Wife and once pointed a firearm at their daughter’s head during a confrontation. 

As part of her case, Wife designated the couple’s marriage counselor, Dorothy Butts-Valentine, to testify as an expert witness on Wife’s mental health and the emotional impact of the separation. Husband objected, arguing that the expert disclosure was too vague and lacked required information such as the counselor’s credentials and the basis for her opinions. The court overruled the objection, allowing the counselor to testify. 

At trial, the counselor diagnosed Wife with major depressive disorder, post-traumatic stress disorder, and spousal psychological abuse. Based on the totality of the evidence, the trial court granted Wife a divorce on cruelty grounds under Virginia Code § 20-91(A)(6) and awarded her $2,000 per month in spousal support for 15 years. 

Legal Analysis

 

The Court held that the husband waived his challenge to the expert testimony by failing to object when it was introduced and that, regardless, the independent evidence of cruelty was more than suf icient to sustain the ruling. 

On appeal, Husband renewed his objection, arguing that the counselor’s expert testimony violated evidentiary rules and contained inadmissible hearsay. However, the Court of Appeals found that Husband had failed to make a timely, specific objection during the counselor’s actual testimony, as required by Rule 5A:18. Because his complaint was first raised later - when the final divorce decree was entered - it was deemed waived. 

Even if the testimony had been improperly admitted, the Court found any potential error harmless. Citing the long line of Virginia precedent defining cruelty as acts that cause bodily harm or reasonable fear of future danger, the Court concluded that the evidence - independent of the counselor’s opinions - was overwhelming. Wife and both children provided corroborated testimony of physical violence and threats, including the firearm incident, and an independent witness confirmed finding Husband with the gun. 

Given the strength of this evidence, the Court ruled that the counselor’s testimony did not affect the outcome. The judgment granting Wife a divorce, equitable distribution, and spousal support was therefore affirmed. 

Implications 

The decision reinforces that objections must be raised at the moment evidence is of ered and that appellate courts will not reverse when overwhelming independent evidence supports the trial court’s findings. 

The Fairfax decision underscores the importance of timely, specific objections in family law trials. Virginia courts strictly apply procedural rules requiring objections to be made when the evidence is offered, not after a ruling has already been entered. Failure to object in time generally means the issue cannot be raised on appeal. The case also illustrates the limited impact of expert testimony when overwhelming factual evidence already supports a finding. Even if an expert’s designation is imperfect or their testimony is partially hearsay, the ruling will stand if the remaining evidence independently satisfies the burden of proof. For parties preparing for trial, the case serves as a reminder to ensure expert witnesses are properly designated and to raise any objections immediately during testimony, not afterward. 

Smith Strong Can Help 

Smith Strong helps clients navigate expert-witness issues and evidentiary disputes in contested family law trials to ensure that rights are protected both during litigation and on appeal.

At Smith Strong, PLC, our attorneys handle complex family law litigation involving expert witnesses, evidentiary disputes, and contested divorces. We ensure that our clients’ rights are protected both at trial and on appeal, using careful preparation and precise courtroom strategy. Whether you are preparing to call an expert or need to challenge opposing testimony, our team can guide you through every stage of your case with confidence and professionalism. To schedule a confidential consultation, contact our Richmond office at (804) 325-1245 or in Williamsburg at (757) 941-4298.