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PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ.
ROBERT J. ZELNICK
                                                                        OPINION BY
v.    Record No.  040916                                                JUSTICE G. STEVEN AGEE
                                                                        January  14,  2005
JONATHAN RAY ADAMS
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Thomas A. Fortkort, Judge Designate
In Zelnick v. Adams,  263 Va.  601,  561 S.E.2d  711  (2002),
(Zelnick I), we held that "a contract for legal services is
within the 'general classes of necessaries' that may defeat a
plea of infancy."    Id. at  611,  561 S.E.2d at  717.    We remanded
the case for further proceedings "on the issue of the factual
determination of necessity 'under all the circumstances.' "    Id.
at  612,  561 S.E.2d at  718.    The trial court, on remand,
determined the legal services at issue were not " 'necessities'
under all the circumstances of  [the] case." For the reasons set
forth below, we will affirm the judgment of the trial court.
I.    BACKGROUND
The facts relating to this controversy were thoroughly
stated in Zelnick I.    We additionally state here only facts
particularly pertinent to the matters on remand.
"A contract with an infant is not void, only voidable by
the infant upon attaining the age of majority."    Id. at  608,  561
S.E.2d at  715  (citation omitted).    When a plea of infancy is




timely raised, as in this case, the trial court makes a mixed
inquiry of law and fact to ascertain whether the defense applies
to the case at hand.    As we described in Zelnick I, the initial
inquiry of the trial court is a matter of law:    "whether the
'things supplied' to the infant under a contract may fall within
the general class of necessaries"?    Id.    If this first query is
answered in the affirmative, then the trial court proceeds to a
second inquiry on a matter of fact:    "whether there is
sufficient evidence to allow the finder of fact to determine
whether the things supplied were in fact necessary in the
instant case."    Id.
Should this second inquiry also be answered in the
affirmative, then the trial court must resolve a third query,
also one of fact, which is "whether the 'things supplied' were
actually necessary to the 'position and condition' of the
infant"?    Id.    Should all three inquiries be answered in the
affirmative, then the plea of infancy is defeated and the infant
is bound "under an implied contract to pay what the goods or
services furnished were reasonably worth."    Id.
In Zelnick I, the trial court erroneously answered the
first inquiry in the negative because "a contract for legal
services is within the 'general classes of necessaries' that may
defeat a plea of infancy."    Id. at  611,  561 S.E.2d at  717.
Although our decision definitively answered the first inquiry as
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a matter of law, the prior record was without evidence upon
which the trial court could answer the remaining questions of
fact.    See Id. at  612,  561 S.E.2d at  717-18.    We, therefore,
remanded the case for the taking of such evidence as necessary
to answer those questions.    Id.,  561 S.E.2d at  718.
Upon remand, Jonathan Ray Adams  (Jonathan) contended the
legal services provided for him by Robert J. Zelnick  (Zelnick),
under the contract executed for Jonathan by his mother, Mildred
A. Adams  (Adams) were not "in fact necessary."    Alternatively,
even if Zelnick's legal services were necessary, Jonathan argued
they were not "actually necessary to the 'position and condition
of the infant'" at the time rendered.
Jonathan introduced evidence that he was living a
comfortable lifestyle in a middle class home and was not
"necessitous."    He further argued that the suit filed by Zelnick
was not necessary because his status as issue for purposes of
distributions from the trusts of Jonathan's grandfather, Cecil
D. Hylton, Sr.  (Mr. Hylton) was settled by a Florida court's
paternity order establishing Cecil D. Hylton, Jr.  (Sonny) as his
biological father.
Jonathan also argued that Zelnick's legal services, even if
necessary at some point, were not necessary during the time of
his minority because he had not been consulted with, or asked to
approve, the legal services contract.    In addition, Jonathan
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contended no legal action was necessary during his minority
because distributions under the trusts would not be made until
2014 and  2021, long after he was an adult.    Accordingly,
Jonathan averred no prejudice could have occurred to him had
Zelnick waited until Jonathan was  18 and obtained his consent
before proceeding with legal action against the trusts.
Further, Jonathan testified the legal proceedings prosecuted by
Zelnick had harmed Jonathan because it exacerbated tensions
between Adams and Sonny thus adversely affecting him.
In response, Zelnick contended the Florida court's
paternity order was not determinative of Jonathan's status under
the trusts.    Zelnick argued that reliance on the foreign
judgment was suspect in view of the long-standing hostility
between Adams and Sonny regarding Jonathan and Sonny's
consistent opposition to any recognition or support for him.
Moreover, Zelnick directed the trial court's attention to the
fact that Mr. Hylton's will placed the decision as to Jonathan's
status as issue for purposes of trust distributions within the
purview of the trustees.    Despite repeated requests from Adams
and Zelnick, the trustees had not confirmed Jonathan's status
for the purposes of the prospective trust distributions.    Adams
also communicated to Zelnick that she feared payments were being
made to some of Mr. Hylton's grandchildren through the trusts
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although there appeared to be no mechanism in the trust to
permit payments at that time.
The trial court initially determined that the Florida
paternity order did not settle Jonathan's status as issue of Mr.
Hylton for purposes of the trust distributions.    Jonathan's
position asserting the conclusive effect of the Florida judgment
was "not supported by the evidence."    In effect, the trial
court's initial determination was that Zelnick's legal services,
"the things supplied," were in fact necessary because Jonathan
"would be unable to receive a final answer as to whether or not
he would share in his grandfather's estate without court
intervention."
Having determined that Zelnick's legal services were
necessary, the trial court then addressed the final inquiry,
"whether the 'things supplied' were actually necessary to the
'position and condition of the infant.' "    Id. at  608,  561
S.E.2d at  715.    The trial court answered this query in the
negative, finding that the provision of legal services at the
time provided were not " 'necessities' under all the
circumstances of his case."    The trial court set out two primary
grounds for its holding.    First, "[t]he delay in litigation for
less than two years would not have compromised Jonathan's
position."    Second, that Zelnick failed to consult Jonathan and
obtain his approval before filing suit because "with a minor
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approaching his majority, he is entitled to at least participate
in far-reaching decisions affecting his position and condition
in life unless there is some reason requiring immediate legal
attention."    The trial court then entered judgment in favor of
Jonathan sustaining his plea of infancy and denying any recovery
to Zelnick.
Zelnick assigns error to the trial court's judgment on two
grounds.    First, Zelnick contends the trial court erred in
finding his legal services "were not actually necessary to the
position and condition of the infant."    Second, Zelnick claims
the trial court erred by not fashioning a remedy to award him
compensation.    We awarded Zelnick this appeal.
II.   STANDARD OF REVIEW
In Zelnick I, our holding that legal services come within
the ambit of necessaries resolved a question of law.    We noted,
however, that the second and third determinations to be
addressed in analyzing a plea of infancy were issues of fact.
Id. at  609,  561 S.E.2d at  716.    As such, we will reverse the
factual finding of the trial court only if it is plainly wrong
or without evidence to support it.    Eure v. Norfolk Shipbuilding
& Drydock Corp.,  263 Va.  624,  631,  561 S.E.2d  663,  667  (2002)
(citation omitted).    We also give deference to the trial court's
findings of fact and view those findings in the light most
favorable to Jonathan, the prevailing party below.    Caplan v.
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Bogard,  264 Va.  219,  225,  563 S.E.2d  719,  722  (2002)  (citation
omitted).
III.    ANALYSIS
The issues to be resolved by the trial court on remand
relate to two matters of fact:    Were Zelnick's legal services
"in fact necessary" to Jonathan, and, if so, were the legal
services "actually necessary" to his "position and condition"?
As noted above, the trial court found that Zelnick's legal
services were "in fact necessary" because Jonathan's status as
issue of Mr. Hylton for purposes of trust distributions would
not have been resolved without legal proceedings to compel a
resolution.    This finding is not challenged by Jonathan on
appeal.    Our inquiry, therefore, goes only to the final question
of whether Zelnick's legal services were "actually necessary" to
Jonathan's "position and condition."    As we indicated in Zelnick
I, the answer to this inquiry "must be determined by
consideration of the circumstances at the time of rendering the
services or providing the things in issue."    Zelnick I,  263 Va.
at  611,  561 S.E.2d at  717.1
1 When a plea of infancy is raised, the facts answering the
inquiry into whether the "things supplied" are "necessary" will
often also answer the related question of whether the "things
supplied" are necessary at the time supplied.    However, as this
case illustrates, that is not always so.    Here, the trial court,
having found Zelnick provided a necessary service, was then
required to separately determine whether that service was
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The trial court found that Zelnick's services were not
actually necessary to Jonathan when rendered.    It is to this
finding that Zelnick specifically assigns error.    While we
review a trial court's factual findings under a deferential
standard of review, not overturning the trial court's factual
findings unless plainly wrong or without evidence to support
them, the trial court's ruling on this point is based on a dual
foundation.    See Eure,  263 Va. at  631,  561 S.E.2d at  667.    One
prong of that foundation is the trial court's determination that
Jonathan had a legal right to be consulted or approve Zelnick's
retainer agreement before it could be effective.    The trial
court erred in reaching this conclusion.
Specifically, the trial court erred in ruling that "a minor
approaching his majority  .  .  . is entitled to at least
participate in far reaching decisions affecting his position and
condition in life."    Minority is a legal status established by
the legislature.    Hurdle v. Prinz,  218 Va.  134,  137,  235 S.E.2d
354,  356  (1977)  (citations omitted).    That status appends to any
person under the age of eighteen.    Code  §  1-13.42(a)(1).    By
contrast, an adult is "a person eighteen years of age or over."
Code  §  1-13.42(a)(3).    The law makes a distinction between the
two classes, and by the plain language of the statute, one
actually necessary when rendered in  1997 prior to Jonathan's
attaining adulthood.
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cannot be both a minor and an adult.    The terms are mutually
exclusive.    See Temple v. Petersburg,  182 Va.  418,  424,  29
S.E.2d  357,  359  (1944).    This court has previously drawn a clear
line between minority and majority.
In law there is no "twilight zone" between an infant
ten years of age and an infant on the verge of
maturity.
Strother v. Lynchburg Trust & Sav. Bank,  155 Va.  826,  833,  156
S.E.  426,  428  (1931).    While it might be prudent to consult a
minor approaching his majority regarding his view on legal
contracts or proceedings concerning him, an obligation to do so
is not the law of the Commonwealth.    Where the General Assembly
desires to mandate consultation with, or the consent of a minor,
it knows how to do so, but has not in this circumstance.    See
Code  §  16.1-283(G)  (allowing a child over  14 years of age to
object to the court's termination of his parents' residual
parental rights).    The trial court thus erred, as a matter of
law, in partly basing its decision on a failure of Zelnick to
consult Jonathan or obtain his consent to legal representation.
That error, however, does not resolve Zelnick's assignment
of error as to the trial court's finding of fact which the trial
court states as follows:
In this case, the facts are that the waiting until the
child reached his majority would not have prejudiced
his position in any way and that under the
circumstances of this case the legal services were not
necessities in the factual context of this case.
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The record amply supports the trial court's determination.
Zelnick filed suit on Jonathan's behalf on May  15,  1997, when
Jonathan was less than a year from attaining status as an adult.
The consent decree establishing Jonathan as Mr. Hylton's
grandchild and issue was entered on January  23,  1998, less than
three months before Jonathan's eighteenth birthday.
Before Zelnick executed the retainer agreement, he obtained
a copy of Mr. Hylton's probated will and reviewed the trust
accountings.    Zelnick knew that the distribution dates for the
grandchildren's trusts would be in  2014 and  2021.2    Zelnick
testified that he "read the will over many times" in order to
"make sure  [he] had a full understanding of the terms and
conditions and how the will would work."    Even though any
interest Jonathan might have had in the trusts would not be
realized for at least  17 years, Zelnick began writing to the
trustees, asking them to acknowledge Jonathan as Mr. Hylton's
grandson and issue for the purposes of trust distributions.
2 Zelnick testified that in deciding to file suit when he
did, he considered the fact that Mr. Hylton had also set up a
trust for his children.    If Sonny died before that trust was
disbursed, and Jonathan had already been declared a grandchild
of Mr. Hylton, Jonathan would be able to take as a child of
Sonny's under that separate trust.    Zelnick noted that these
trusts had earlier distribution dates than the grandchildren's
trusts.    Even had Sonny died at the time Zelnick filed suit,
however, the disbursement date was still somewhat after Jonathan
reached the age of majority.
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In defending his decision to file suit when he did, Zelnick
makes much of the fact that the trustees did not respond with a
definite acknowledgement of Jonathan as Mr. Hylton's issue.    He
testified that Adams "had heard that distributions were being
made from the estate to the other grandchildren," and she was
unable to get any information about Jonathan's status from the
executors or trustees of Mr. Hylton's estate.
However, trustees' counsel did confirm by letter of
December  13,  1996, that the triggering events for any
distributions from Mr. Hylton's trust were "many years in the
future."    Trustees' counsel also informed Zelnick that the
trustees had been advised to "carefully evaluate the merits of
[Jonathan's] claim" "as soon as any amount is to be paid to Mr.
Hylton's grandchildren  .  .  .                                     ."    Trustees' counsel also
confirmed distributions of the trusts would be made in  2014 and
2021 respectively.    On February  19,  1997, trustee's counsel
again replied to Zelnick indicating that the trust was "still in
the process of conducting a due diligence analysis of
[Jonathan's] claim."    Nonetheless, Zelnick filed suit on
Jonathan's behalf on May  15,1997,  11 months before Jonathan
became an adult.
"By consideration of the circumstances at the time of
rendering the services," Zelnick I,  263 Va. at  611,  561 S.E.2d
at  717, we agree with the trial court's judgment that delaying
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the suit until Jonathan became  18 "would not have compromised
Jonathan's position."    The record does not reflect any advantage
to the legal proceedings before Jonathan turned  18 or that he
would have been disadvantaged by waiting.    While the
communications from the trustees' counsel did not confirm
Jonathan's status as Mr. Hylton's grandson, neither was it
denied.    In fact, the trustees confirmed Zelnick's understanding
of the trust's provisions that any distribution to Jonathan was
years away, long after he would be an adult.    Reliance on these
facts does not constitute the retrospective analysis we
cautioned against in Zelnick I, because these were the
circumstances at the "time of rendering the services or
providing the things in issue" and known to Zelnick.                 263 Va. at
611,  561 S.E.2d at  717.
Zelnick's legal action on Jonathan's behalf was not a
necessity to his "position and condition" at the time this
service was rendered.    The trial court thus did not err in so
finding because its decision is supported by the record and is
not plainly wrong.3
IV.   CONCLUSION
3 Having determined that the trial court correctly sustained
Jonathan's plea of infancy, we do not address Zelnick's second
assignment of error.    As we clearly held in Zelnick I: "[S]hould
the trial court upon remand hold that the doctrine of
necessaries does not apply because the evidence adduced does not
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We find sufficient support in the record for the trial
court's judgment that Zelnick's legal services were not
necessary for Jonathan's position and condition under all the
circumstances.    The trial court was thus correct in sustaining
Jonathan's plea of infancy and denying any fee award to Zelnick.
We will accordingly affirm the judgment of the trial court.
Affirmed.
support the claim, the contract is avoided and no award shall be
made."                                                             263 Va. at  612,  561 S.E.2d at  718.
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