                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judge McClanahan and Senior Judge Willis
Argued at Richmond, Virginia


WILLIAM MICUS
                                                         MEMORANDUM OPINION∗ BY
v.     Record No. 0964-05-2                          CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                               MARCH 7, 2006
DOROTHY MITCHELL


                    FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                                Paul M. Peatross, Jr., Judge

                 S. Braxton Puryear for appellant.

                 Anthony Paone, II (Paone & Gregorio, PLLC; Innsbrook Law
                 Group, PC, on brief), for appellee.


       William Micus (father) appeals the award of custody of his minor child to her paternal

grandmother, Dorothy Mitchell (grandmother). Father claims that the trial court erred by:

(1) applying an improper standard for a custody dispute between a parent and a non-parent;

(2) finding that grandmother was a “person with a legitimate interest”; (3) awarding custody to

grandmother because sufficient evidence did not support that decision; and (4) relying on an

expert who was biased against his practice of agnihotra.1 Grandmother raised three additional

issues, and claims that (1) father did not properly perfect his appeal because he failed to include

Tina Marie Federico (mother) in the notice of appeal; (2) the trial court erred in denying

grandmother’s motion for child support; and (3) the trial court erred in failing to award




       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Agnihotra is one facet of the “Five-fold Path.” It entails burning dried cow dung and
chanting verses each day at sunrise and sunset.
grandmother attorney’s fees. We affirm the decision of the trial court on the substantive issues

but remand for the trial court to determine whether to award attorney’s fees to grandmother.

                                          I. Background

       On appeal, we view the evidence in the light most favorable to grandmother, the party

prevailing below. Brown v. Burch, 30 Va. App. 670, 681, 519 S.E.2d 403, 408-09 (1999). So

viewed, the evidence establishes that child was born on June 11, 1996. In August 2001, father

was granted sole legal and physical custody of child by the Circuit Court of Louisa County. At

that time, the trial court fixed a specific visitation schedule for grandmother and required father

to give thirty days notice to grandmother, mother, and the guardian ad litem before moving to a

different residence. Furthermore, the trial court prohibited father from forcing child to practice

agnihotra and from exposing her to the smoke or ash resulting from the practice of agnihotra.

Father was held in contempt twice for failing to allow grandmother to visit with child per the

schedule set forth in that order.2

       In July 2003, father took child and moved to Arizona. He stated that during a meditation

session he was told to move to Arizona, to take his child with him, and not to tell anyone of his

actions. Father testified that around the same time, the lease on his apartment expired and

although he looked for another residence, he could not find one within his budget. He did not

notify grandmother or the court of his actions, and he admitted that he knew that he was violating

a court order by moving.

       Grandmother filed a petition for an emergency change of custody on August 14, 2003,

alleging that visitation had been denied to her since the beginning of July, and she had reason to

believe that father and child had moved outside of Virginia. The trial court issued a rule to show

cause the same day that required father to appear on August 21, 2003. When father failed to


       2
           Venue was transferred to the Circuit Court of Albemarle County on May 12, 2003.
                                                -2-
appear, the court found him in contempt and ordered him to return with child no later than

September 2, 2003. If father failed to do so, custody would be transferred to grandmother and

the child was to return to Virginia.

       Grandmother went to Arizona and while in Arizona, grandmother testified that when she,

mother, and child went to a restaurant to eat, child would not speak or eat but instead curled into

a fetal position and scribbled on the menu. On September 2, 2003, grandmother removed child

from Arizona and returned with her to Virginia. Since that time, child has lived with

grandmother and has only seen her father one time. Child saw father shortly after the move back

to Virginia, and on that occasion father acted violently toward the grandmother after trying to

pull child away from grandmother’s house.

       On November 23, 2003, father filed a motion requesting that the court return sole legal

and physical custody of child to him.3 Grandmother filed a motion for child support. A hearing

was held on those motions on November 29, 2004.4 The parties agreed that grandmother would

bear the burden of proof because she filed the initial petition for a change of custody on August

14, 2003.

       At the hearing, Marilyn Minrath, Ph.D., was qualified as an expert. Dr. Minrath

collaborated with another doctor in conducting interviews and psychological tests on father and

grandmother prior to the hearing. Dr. Minrath testified that, based on the interviews and tests,

father’s “psychological functioning is limited and is greatly influenced by his belief system right

now in agnihotra, which limits, in our mind, his ability to test reality and determine reality

accurately.” She stated that his capacity to perceive reality is impaired and, as a result, he would

be unable to meet the developmental needs of child. Further, his inability to channel his anger

       3
          A guardian ad litem was appointed for child and argued that it was in child’s best
interests to award custody to grandmother.
       4
           The attempts made to serve process on mother failed.
                                               -3-
towards his mother would disrupt the relationship between child and grandmother. Dr. Minrath

opined that grandmother, although suffering from anxiety, would be able to meet child’s

developmental needs.

       Leslie Durr, Ph.D., was also qualified as an expert. Child was Dr. Durr’s patient, and

Dr. Durr testified that when child first came to her office in October 2003, she played more

violently than other children her age and would dissociate when asked questions of an emotional

nature. Dr. Durr stated “[s]omething traumatic has happened to this child in---prior to my seeing

her. Whether it was that actual move to Arizona or a series of events, I don’t know, but when I

started seeing her, she was a very traumatized child.” Dr. Durr noted that since living with her

grandmother, the child’s emotional state had improved. Dr. Durr stated that grandmother

provided a stable and secure environment for the child and that child’s trauma could be

aggravated if she was moved out of grandmother’s home.

       Both parties presented lay witnesses who testified concerning their good character and

competence to raise a child.

       After hearing the evidence, the trial judge entered a final decree on March 28, 2005.

After analyzing applicable law, the trial court stated

               the Court does not find [father] to be unfit but it finds that there
               was actual harm to the Child’s health and welfare when in the care
               of the father. It further finds that actual harm to the Child’s health
               and welfare may occur in the future without a transfer of custody
               to the grandmother because of the disobedience of the father to the
               Court’s Orders and the Care of the Child provided in Arizona.

The trial court concluded that grandmother proved by clear and convincing evidence that the best

interests of child would be served by awarding custody to her. The trial court therefore awarded

sole legal custody of child to grandmother. The trial court also found that father should have a

continuing relationship with child, and so granted father “reasonable rights of visitation” on the

condition that father obtain professional counseling.
                                                -4-
       In ruling on the other motions, the trial court noted that it “declines to award attorney’s

fees or expenses based on the lack of legal authority.” The trial judge found no statutory

authority for fees where the suit was not one for divorce, support, or maintenance, and so did not

consider the issue. Additionally, the trial court found there was “insufficient evidence” to make

an award of child support.

                                            II. Analysis

               A. Standard for Change of Custody and Sufficiency of the Evidence

       Father first argues that the trial court applied an incorrect standard to the custody dispute

between a parent and a non-parent. Additionally, father contends that the evidence was

insufficient to support an award of custody to grandmother. We disagree.

       In custody disputes where evidence is presented to the trial court at an ore tenus hearing,

the trial court’s determination is entitled to great weight and will not be disturbed “unless plainly

wrong or without evidence to support it.” Simmons v. Simmons, 1 Va. App. 358, 361, 339

S.E.2d 198, 199 (1985).

       Code § 20-124.2(B) provides that

               [i]n determining custody, the court shall give primary
               consideration to the best interests of the child. . . . The court shall
               give due regard to the primacy of the parent-child relationship but
               may upon a showing by clear and convincing evidence that the
               best interest of the child would be served thereby award custody or
               visitation to any other person with a legitimate interest.

See also Williams v. Williams, 24 Va. App. 778, 784-85, 485 S.E.2d 651, 654 (1997) (for a

non-parent to be awarded visitation (custody) over the objection of the custodial parent, “a court

must find an actual harm to the child’s health or welfare without such visitation”), aff’d, 256 Va.

19, 501 S.E.2d 417 (1998); Griffin v. Griffin, 41 Va. App. 77, 84-85, 581 S.E.2d 899, 902-03

(2003). If the court finds that the child will be harmed if visitation (custody) is not ordered, then

it must consider the best interests of the child. Williams, 24 Va. App. at 785, 485 S.E.2d at 654.
                                                -5-
       In a custody dispute between a parent and a non-parent, “the law presumes that the

child’s best interests will be served when in the custody of its parent.” Bottoms v. Bottoms, 249

Va. 410, 413, 457 S.E.2d 102, 104 (1995) (citation omitted). The presumption favoring the

parent is strong, but it can be rebutted if certain factors are established by clear and convincing

evidence. Bailes v. Sours, 231 Va. 96, 100, 340 S.E.2d 824, 827 (1986). Those factors are

(1) parental unfitness, (2) a previous order of divestiture, (3) voluntary relinquishment,

(4) abandonment, or (5) “a finding of ‘special facts and circumstances . . . constituting an

extraordinary reason for taking a child from its parent.’” Id. (quoting Wilkerson v. Wilkerson,

214 Va. 395, 397-98, 200 S.E.2d 581, 583 (1973)) (emphasis added); see James v. James, 230

Va. 51, 54, 334 S.E.2d 551, 553 (1985).5

       The trial court, in reaching its decision, cited Williams, admittedly a visitation case

between a parent and a non-parent, as the appropriate test. The trial court noted that “[a]lthough

there is no case directly on point concerning an award of custody versus visitation, this Court

finds that the statute requires the same analysis.” As a result, the trial court enunciated the

standard: “this Court must determine whether a denial of custody to [grandmother], would result

in an actual harm to the Child’s health or welfare.” The trial court further stated

               [t]he Court does not find [father] to be unfit but it finds that there
               was actual harm to the Child’s health and welfare when in the care
               of father. It further finds that actual harm to the Child’s health and


       5
         A few cases hold that when custody has previously been awarded by the court to a
non-parent or the parent has agreed that the non-parent should have custody, the parent loses the
presumption in his or her favor and instead must prove that it is in the best interest of the child
for the parent to have custody. Denise v. Tencer, 46 Va. App. 372, 393-94, 617 S.E.2d 413, 424
(2005); Albert v. Ramirez, 45 Va. App. 799, 809, 613 S.E.2d 865, 870 (2005). Those cases are
inapposite because father still had legal custody, and grandmother was simply awarded
temporary custody in an ex parte proceeding. Wilkerson, 214 Va. at 397, 200 S.E.2d at 583
(temporary custody order “has neither the dignity nor the effect of a final order of custody upon
the merits”); see McEntire v. Redfearn, 217 Va. 313, 316, 227 S.E.2d 741, 743 (1976) (father
bore burden of showing best interest of child where temporary custody awarded to grandmother
in a proceeding at which father was present).
                                                -6-
                 welfare may occur in the future without a transfer of custody to the
                 grandmother.

The trial court then conducted a best-interest analysis and determined that the best interest of the

child dictated that custody be awarded to grandmother. We find no error in the trial judge’s legal

analysis and its application to the facts of this case.

          The credibility of witnesses, the weight accorded to their testimony, and any inferences

drawn from the facts are matters “‘solely for the factfinder’s determination.’” Riner v.

Commonwealth, 268 Va. 296, 320, 601 S.E.2d 555, 568 (2004) (citations omitted). We review

the evidence in the light most favorable to grandmother, the party prevailing below, and grant to

her all reasonable inferences fairly deducible therefrom. Brown, 30 Va. App. at 681, 519 S.E.2d

at 409.

          The evidence, properly viewed, established that father had acted violently toward

grandmother, was unable to accurately perceive reality, and was incapable of putting child’s

needs before his own. Grandmother presented two experts to testify that she met child’s

developmental and emotional requirements and that father was incapable of doing so. Both

Dr. Minrath and Dr. Durr opined that a change in custody would have significant effects on

child’s health. Father presented only lay witnesses who had seen his interaction with child from

the period between 2001 and 2003, which was considered by the trial court but discarded. The

trial court did not rely solely on the testimony of Dr. Minrath, but rather analyzed all of the

evidence presented at trial in the final decree.

          Additionally, the trial court found that there was “actual harm” to child when she was in

father’s care. In its findings of fact, the trial court determined that “the father is out of touch

with reality and has impaired judgment in dealing with day to day needs of the Child,” that child

suffered trauma while in father’s care, that father violated numerous court orders, and that when

child was seen by grandmother in Arizona, she was coughing and congested and sat in a fetal
                                                   -7-
position and did not eat. Such facts constitute an “extraordinary reason” to award custody to a

non-parent. Thus, we affirm the trial court’s award of custody to grandmother.

                      B. Grandmother as a Person with a Legitimate Interest

       Father next argues that the trial court erred in characterizing grandmother as a person

with a legitimate interest. We disagree.

       Custody may be awarded to a “person with a legitimate interest.” Code § 20-124.2(B).

Code § 20-124.1 states that the term “‘[p]erson with a legitimate interest’ shall be broadly

construed and includes, but is not limited to grandparents.” The term is broadly construed to

accommodate the best interest of the child. Id. Grandmother, being child’s paternal grandparent,

falls within the statutory definition of a person with a legitimate interest. See Yopp v. Hodges,

43 Va. App. 427, 436, 598 S.E.2d 760, 765 (2004). Additionally, the trial court had already

determined that she had a legitimate interest as she was awarded visitation over father’s

objection.

                                     C. Father’s Practice of Agnihotra

       Father next contends that the trial court placed undue emphasis on the testimony of

Dr. Minrath because she was prejudiced against agnihotra. Relying on Dr. Minrath’s testimony,

father claims, rendered the father’s religious beliefs as the basis of his loss of custody in

violation of the United States and Virginia Constitutions. Again, we disagree.

       On appeal, the trial court’s findings are entitled to great weight and will not be disturbed

unless plainly wrong or unsupported by the evidence. Bailes, 231 Va. at 100, 340 S.E.2d at 827.

The weight to be afforded testimony and any inferences drawn from the facts are matters “‘solely

for the factfinder’s determination.’” Riner, 268 Va. at 320, 601 S.E.2d at 568 (citations omitted).

       Father’s contention that the order infringes upon his right to practice his religion is

without merit. The initial order does not prohibit father from practicing agnihotra, it simply

                                                 -8-
prohibits father from exposing child to the ash and smoke resulting from the practice and from

forcing child to perform the ritual. Lisa Powers, an officer of the Five-fold Path, Incorporated,

and father’s own witness, testified that the practice was not a religion. The trial judge considered

the entire record and did not rely solely on Dr. Minrath’s testimony in determining the placement

of child. Rather, the trial judge found that grandmother provided a stable home, that child

needed to be in a “safe and secure environment,” that father had “unresolved anger” toward

grandmother, that grandmother was able to maintain a close and loving relationship with child,

and that father had previously violated the court’s orders, resulting in adverse consequences to

child. Thus the trial court did not violate any of father’s First Amendment rights by awarding

custody to grandmother.

                            D. Failure to Include Mother in Notice of Appeal

       Grandmother argues that father failed to perfect his appeal because he did not include

mother in the notice of appeal.

       Rule 5A:6 provides that:

           No appeal shall be allowed unless, within 30 days after entry of final
           judgment or other appealable order or decree, counsel files with the clerk of
           the trial court a notice of appeal, and at the same time mails or delivers a
           copy of such notice to all opposing counsel and the clerk of the Court of
           Appeals.

       This Court cannot hear an appeal unless all necessary parties are included on the notice of

appeal. Watkins v. Fairfax County Dep’t of Family Services, 42 Va. App. 760, 765-66, 595

S.E.2d 19, 21-22 (2004). A person is a necessary party “[w]here an individual is in the actual

enjoyment of the subject matter, or has an interest in it, either in possession or expectancy, which

is likely either to be defeated or diminished by the plaintiff’s claim.” Asch v. Friends of Mount

Vernon Yacht Club, 251 Va. 89, 90-91, 465 S.E.2d 817, 818 (1996) (citations omitted). “A

necessary or indispensable party is ‘so bound up with that of the other parties, that their legal

                                                -9-
presence as parties to the proceeding is an absolute necessity, without which the court cannot

proceed.’” Yopp, 43 Va. App. at 434, 598 S.E.2d at 763-64 (quoting Asch, 251 Va. at 91, 465

S.E.2d at 818).

       Mother was not a party to this appeal. She was divested of custody in the 2001 order.

The parties attempted to serve notice on mother of the final hearing in November 2004, but the

attempts failed. Mother was not listed on the final decree, although she was named in the initial

petition filed by grandmother. Mother filed a motion requesting visitation, but the motion was

dismissed on the same date that the final decree was entered because mother failed to properly

file the motion and did not comply with the directions given to her by the trial court. Thus,

because mother is not a necessary party, grandmother’s claim must fail.

                                              E. Child Support

       Grandmother claims that the trial court erred in declining to award her child support. We

hold that the trial court did not abuse its discretion in failing to award child support to

grandmother.

       “Decisions concerning child support rest within the sound discretion of the trial court and

will not be reversed on appeal unless plainly wrong or unsupported by the evidence.” Smith v.

Smith, 18 Va. App. 427, 433, 444 S.E.2d 269, 274 (1994). In any proceeding where child

support has been requested, the amount which results from the application of the guidelines set

forth in Code § 20-108.2 is presumptively correct. Code § 20-108.1. In order to rebut that

presumption, the court must make written findings that the award set forth in the guidelines

would be unfair or improper as applied to the facts of that particular case. Id.

       Additionally, where a parent is voluntarily underemployed or unemployed, the trial court

may impute income to that party. Brody v. Brody, 16 Va. App. 647, 650, 432 S.E.2d 20, 21

(1993). However, the party seeking support must “produce evidence that was sufficient to

                                                - 10 -
‘enable the trial judge reasonably to project what amount could be anticipated’” before a trial

court will impute income to a party. Id. at 651, 432 S.E.2d at 22 (quoting Hur v. Dep’t of Social

Services, 13 Va. App. 54, 61, 409 S.E.2d 454, 459 (1991)). See also Niemiec v. Niemiec, 27

Va. App. 446, 451, 499 S.E.2d 576, 579 (1998) (“[t]he burden is on the party seeking the

imputation”). A support order cannot be based on “speculation or conjecture.” Brooks v.

Rogers, 18 Va. App. 585, 592, 445 S.E.2d 725, 729 (1992).

       The only evidence presented at trial regarding either party’s income was the testimony of

Jeremy Manning-Smith, who said that he paid father twenty dollars an hour when they worked

on the same job during the spring prior to trial. Mr. Manning-Smith, though, was unsure of what

he would be able to pay father for the current job they were completing, and did not know of

father’s future work prospects. No testimony was elicited concerning grandmother’s income,

and the sole evidence of expenses for child was grandmother’s testimony that she paid $124 a

month for health insurance for child. The trial court found that “there was insufficient evidence

for the Court to make an [a]ward based on the gross incomes of the parties and calculations of

child support under the Child Support Guidelines statute.” The burden of proof was on

grandmother to present sufficient evidence for the trial court to determine the appropriate

amount. The trial court did not err because its decision is not plainly wrong or unsupported by

the evidence.

                                            F. Attorney’s Fees

       Lastly, grandmother contends that the trial court erred in failing to consider an award of

attorney’s fees to her. Because the trial court erroneously concluded that it did not have the

authority to grant attorney’s fees, we remand for consideration of this issue.

       “An award of attorney’s fees is a matter submitted to the trial court’s sound discretion

and is reviewable on appeal only for an abuse of discretion.” Graves v. Graves, 4 Va. App. 326,

                                               - 11 -
333, 357 S.E.2d 554, 558 (1987). However, a trial court “by definition abuses its discretion

when it makes an error of law.” Lanzalotti v. Lanzalotti, 41 Va. App. 550, 554, 586 S.E.2d 881,

883 (2003) (citation omitted).

       A trial court hearing a custody dispute, including that between a parent and a third party,

may in its discretion award attorney’s fees. Brown, 30 Va. App. at 689, 519 S.E.2d at 412.

       The trial judge failed to award attorney’s fees, not because he was exercising his

discretion, but because he thought that he had no authority to do so. The failure to consider an

award of attorney’s fees in this custody matter is an error of law. Consequently, the case will be

remanded to the trial court to determine the issue of attorney’s fees.

       Accordingly, we affirm in part and reverse in part and remand to the trial court to

determine whether or not grandmother is entitled to attorney’s fees.

                                                                            Affirmed, in part,
                                                                            reversed, in part,
                                                                            and remanded.




                                               - 12 -
