ABC v. XYZ

• Court: Court of Appeals of Virginia
• Decided: August 12, 2003
• Docket: 0302032
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Willis

ABC MEMORANDUM OPINION * v. Record No. 0302-03-2 PER CURIAM AUGUST 12, 2003 XYZ

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

(T. Michael Blanks, Jr.; Marchant, Thurston, Honey & Blanks, L.L.P., on briefs), for appellant.

(Ronald R. Tweel; Elizabeth P. Coughter; Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., on brief), for appellee.

ABC, the child's father, appeals the January 7, 2003 order of

the circuit court requiring intensive psychotherapy for father.

Upon reviewing the record and briefs, we conclude that this appeal

is without merit. We dismiss the appeal in part and summarily

affirm the decision of the trial court in part. See Rule 5A:27.

I.

On appeal, we view the evidence in the light most favorable

to appellee as the party prevailing below and grant to that

evidence all reasonable inferences. McGuire v. McGuire, 10

Va. App. 248, 250, 391 S.E.2d 344, 346 (1990).

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The parties have never married. The mother gave birth to

their son on April 18, 1999. Following extensive hearings,

which included expert testimony, the trial judge awarded the

mother sole legal and physical custody of the child by order

entered April 20, 2001. The order provided the father with

limited, supervised visitation and required him to undergo a

psychological assessment and obtain any recommended treatment.

Although the father noted objections to the order, he did not

appeal within the thirty days of entry of the order.

After the father filed Dr. Stephen E. Doyne's psychological

evaluation of the father, the mother filed a motion to order

intensive psychotherapy for the father. In October 2002, the

trial judge heard argument on mother's motion. The trial judge

admitted Dr. Doyne's report into evidence. Following an ore

tenus hearing at which testimony included opinions of other

expert witnesses, the trial judge entered an order on January 7,

2003 that found Dr. Doyne's report was insufficient to satisfy

the requirements of the April 20, 2001 order and directed the

father to begin intensive psychotherapy. The father appeals.

II.

Analysis

On appeal, the father contends the trial judge erred by

denying his motion to exclude expert testimony, denying his motion

for psychological testing of the mother, and restricting his

visitation and conditioning it upon his undergoing psychotherapy.

- 2 - In compliance with Rule 5A:20(c), the father's brief indicates

that the father raised three issues in the circuit court and

preserved these issues by his objections as noted on the April

20, 2001 custody order.

A final order "'disposes of the whole subject, gives all

the relief contemplated, provides with reasonable completeness

for giving effect to [its terms], and leaves nothing to be done

in the cause save to superintend ministerially the execution of

the order.'" Marchant & Taylor v. Mathews Co., 139 Va. 723,

734, 124 S.E. 420, 423 (1924). See also Leggett v. Caudill, 247

Va. 130, 133, 439 S.E.2d 350, 351 (1994); Daniels v. Truck &

Equip. Corp., 205 Va. 579, 585, 139 S.E.2d 31, 35 (1964);

Newsome v. Newsome, 18 Va. App. 22, 26, 441 S.E.2d 346, 348

(1994). The April 20, 2001 custody order disposed of the whole

subject, gave all the relief contemplated, provided with

reasonable completeness for giving effect to its terms and left

nothing to be done in the cause save to superintend

ministerially the compliance with the order. It was, therefore,

a final order.

"[A] notice of appeal to the Court of Appeals in any case

within the jurisdiction of the court shall be filed within

thirty days from the date of any final judgment order, decree or

conviction." Code § 8.01-675.3. The notice of appeal in this

case was filed more than thirty days after entry of the April

20, 2001 order. We are barred from considering these issues on

- 3 - appeal. See Zion Church Designers & Bldrs. v. McDonald, 18

Va. App. 580, 583, 445 S.E.2d 704, 705 (1994) (holding that

"[t]he time requirement for filing a notice of appeal is

jurisdictional"). Accordingly, we dismiss the appeal as to

these issues.

III.

The father also contends the trial judge erred "in

excluding Dr. Stephen Doyne's testimony and report from

evidence" at the 2002 hearing. The record reflects, however,

that the trial judge admitted in evidence the report and Doyne's

deposition. The judge ruled that "the transcript is in

evidence, and what [father] said to Dr. [Doyne is] in evidence."

Appellant, therefore, obtained the relief he now requests.

Thus, to the extent that this issue is properly before us, see

Code § 17.1-405(4), and not moot, we summarily affirm the trial

judge's decision.

IV.

For these reasons, we dismiss, in part, the appeal and

summarily affirm, in part, the order. See Rule 5A:27. In

addition, we grant the mother's motion for attorney fees and

remand to the trial court to assess a reasonable attorney fee for

the appeal.

Dismissed in part, affirmed in part, and remanded.

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