Micus v. Mitchell, Record No. 0964-05-2 (VA 3/7/2006)
| Decision Date | 07 March 2006 |
| Docket Number | Record No. 0964-05-2. |
| Court | Virginia Supreme Court |
| Parties | WILLIAM MICUS v. DOROTHY MITCHELL. |
Appeal 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.
Present: Chief Judge Fitzpatrick, Judge McClanahan and Senior Judge Willis.
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 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.
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 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 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 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.
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.
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) (), 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.
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...
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