COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Lemons 

THOMAS STOKES GRYMES, JR. 

 MEMORANDUM OPINION*

v. Record No. 1185-99-2 PER CURIAM 

 OCTOBER 26, 1999 

ROBIN L. GRYMES 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 (Murray J. Janus; Deanna D. Cook; Bremner, 

Janus & Cook, on brief), for appellant. 

 (James B. Thorsen; Thorsen, Marchant & Scher, 

L.L.P., on brief), for appellee. 

 Thomas Stokes Grymes, Jr. and Robin L. Grymes were divorced 

in 1996. The father appeals the decision of the Henrico County 

circuit court dated May 18, 1999 related to custody, support and 

attorney's fees. He contends that the trial court erred by: (1) 

failing to change physical custody of the parties' children 

despite evidence that the mother violated the current visitation 

order and engaged in behavior designed to keep the children from 

having a positive relationship with the father; (2) failing to 

appropriately consider Code §§ 20-124.3 and 20-108 when reviewing 

his motion to change custody; (3) "affirming" the juvenile and 

domestic relations district court's decision concerning spousal 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
support rather than reviewing the matter de novo; (4) failing to 

hold the mother in contempt of court; (5) failing to impute income 

to the mother for purposes of calculating spousal and child 

support; and (6) awarding the mother attorney's fees. Upon 

reviewing the record and briefs of the parties, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm 

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

 Evidence was heard by the trial court in two ore tenus

hearings. The parties agreed to use district court transcripts 

for certain witnesses' testimony. 

Under familiar principles we view [the] 

evidence and all reasonable inferences in 

the light most favorable to the prevailing 

party below. Where, as here, the court 

hears the evidence ore tenus, its finding is 

entitled to great weight and will not be 

disturbed on appeal unless plainly wrong or 

without evidence to support it. 

Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 

15, 20, 348 S.E.2d 13, 16 (1986). 

Motion to Change Physical Custody

 The father contends that the trial court erred by failing 

to change the physical custody of the parties' two boys to him. 

He also contends that the mother repeatedly violated the current 

visitation order. The trial court found that the father failed 

to prove a change in circumstances justifying a change in 

custody. We affirm. 

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 As the party seeking a modification of the existing custody 

order, father bore the burden to prove "'(1) whether there has 

been a [material] change in circumstances since the most recent 

custody award; and (2) whether a change in custody would be in 

the best interests of the child.'" Wilson v. Wilson, 18 Va. 

App. 193, 195, 442 S.E.2d 694, 696 (1994) (quoting Visikides v. 

Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986)). See Keel v. 

Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983). "In matters 

concerning custody and visitation, the welfare and best 

interests of the child are the 'primary, paramount, and 

controlling considerations.'" Kogon v. Ulerick, 12 Va. App. 

595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). The 

trial court is vested with broad discretion to make the 

decisions necessary to safeguard and promote the child's best 

interests, and its decision will not be set aside unless plainly 

wrong or without evidence to support it. See Farley v. Farley, 

9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990). 

 The father produced evidence of several confrontations 

between the parties as evidence weighing against the mother's 

continued custody of the boys. The father contended below and 

on appeal that, under Code § 20-124.3(6), the trial court was 

required to consider whether the mother failed to "actively 

support the [children's] contact and relationship with the other 

parent" and failed to "cooperate in matters affecting the 

[children]." The father also relied on Code § 20-108 which 

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provides, in part, "[t]he intentional withholding of visitation 

of a child from the other parent without just cause may 

constitute a material change of circumstances justifying a 

change of custody in the discretion of the court." 

 The trial court found that the father failed to prove that 

there was a change in circumstances justifying a modification in 

custody. While the trial court found that there had been "some 

unfortunate confrontations" between the father, his wife, and 

the mother, "[t]ragically some . . . in front of the children or 

directly impact on the children," it found that the incidents 

"[did] not rise to the level of supporting a change of custody." 

The trial court did not attribute responsibility for the 

confrontations to either. The mother was, however, directed not 

to interfere with the father's access to the boys' school 

activities. 

 The father conceded below that there was no evidence that 

mother was "a bad mother per se." Our review of the record 

supports the trial court's conclusion that nothing warranted a 

change in the current custody arrangement. Because the trial 

court's decision, based upon the testimony heard ore tenus, was 

supported by the evidence and was not an abuse of discretion, we 

affirm. 

Appeal De Novo

 The father contends that the trial court erred by 

"affirming" the decision of the juvenile court increasing the 

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monthly spousal support award by $750, rather than hearing the 

evidence de novo. See Code § 16.1-296(F). While the trial 

court noted in an opinion letter that he was "affirming" the 

award of the juvenile court, it is clear that the court made a 

specific determination based upon the evidence produced at the 

hearing and the increase in the father's earnings since the last 

support determination. The father points to nothing other than 

the wording of the letter to indicate that the trial judge 

applied an erroneous, deferential standard of review. We find 

no reversible error. 

Contempt of Court

 The father contends that the trial court erred by failing 

to find mother in contempt of court for repeatedly violating the 

visitation order. "A trial court 'has the authority to hold 

[an] offending party in contempt for acting in bad faith or for 

willful disobedience of its order.'" Alexander v. Alexander, 12 

Va. App. 691, 696, 406 S.E.2d 666, 669 (1991) (citation 

omitted). Whether a party is in contempt is a matter left to 

the discretion of the trial court, whose decision "we may 

reverse . . . only if we find that it abused its discretion." 

Barnhill v. Brooks, 15 Va. App. 696, 704, 427 S.E.2d 209, 215 

(1993). 

 The evidence demonstrated unquestionably that the parties 

have had difficulties communicating in the past. However, the 

trial court did not hold the mother solely responsible for those 

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difficulties. The trial court's factual determinations are 

supported by credible evidence. Therefore, we cannot say that 

the trial court abused its discretion. 

Imputation of Income

 The father also contends that the trial court erred by 

failing to impute income to the mother for purposes of 

calculating spousal and child support. We find no error. 

 When calculating child support, income may be imputed to a 

parent "who is voluntarily unemployed or voluntarily 

under-employed" if the trial court determines that it is 

appropriate under the circumstances of the case. See Code 

§ 20-108.1. The parties' older son is autistic. He was 

described as "high functioning," but required special education 

classes at school. Witnesses testified that his behavior and 

independence had improved as he matured, but there was evidence 

that, in the past, the mother was called to school at 

unpredictable times when problems arose. While the father 

presented evidence that mother could earn $20,000 to $25,000 a 

year, his vocational expert admitted that he did not consider 

that the mother might require greater flexibility in her work 

environment due to the current needs of the parties' son. The 

expert also admitted that he relied on the father's 

representation that childcare would be available for the 

children after school, although there was no evidence that such 

care was actually in place. Furthermore, the evidence also 

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showed that, by agreement of the parties, the mother did not 

work to any significant extent during the parties' marriage 

following their children's birth. 

 The trial court found that "it is important for [the older 

son] that [mother] be available to him for the foreseeable 

future." Based upon the evidence concerning the current 

circumstances and the needs of the parties' children, we find no 

error in the trial court's refusal to impute income to the 

mother for purposes of child support calculations. 

 Similarly, "[a] court may under appropriate circumstances 

impute income to a party seeking spousal support." Srinivasan 

v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990). 

Code § 20-107.1(E)(9) requires the trial court to consider the 

"earning capacity, including the skills, education and training 

of the parties and the present employment opportunities for 

persons possessing such earning capacity" when determining 

spousal support. As noted above, the trial court found that it 

was important under the current circumstances for the mother to 

be available for the parties' autistic son. Therefore, we find 

no error in the trial court's decision that the evidence did not 

warrant an imputation of income to the mother for purposes of 

spousal support. 

Attorney's Fees

 An award of attorney's fees is a matter submitted to the 

sound discretion of the trial court and is reviewable on appeal 

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only for an abuse of discretion. See Graves v. Graves, 4 Va. App. 

326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award 

of counsel fees is reasonableness under all the circumstances. 

See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 

(1985). It is undisputed that the father's income greatly exceeds 

that of the mother. Based on the issues involved and the 

respective abilities of the parties to pay, we cannot say that the 

award of $2,000 in attorney's fees to the mother was unreasonable 

or that the trial court abused its discretion in making the award. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.

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