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.
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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
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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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