A father who appealed a juvenile court’s refusal to modify spousal support, but who did not contest the amount of arrears that court said he owed, still must have his appeal dismissed for lack of jurisdiction for his failure to post a bond for the arrears of over $24,000, Virginia’s Court of Appeals says in Forte v. Commonwealth (06/09/2015).
Va. Code §16.1-296(H) says a bond is not required when appealing from juvenile court, “except for that portion of any order or judgment establishing a support arrearage or suspending payment of support during pendency of an appeal.” Since the father did not challenge “that portion” of the order, and since he probably did not have $24,000, he did not post a bond.
The Court of Appeals reviews and summarizes its existing case law on the application of this statute. It says the appeal “must make clear to the court that his appeal does not challenge the support arrearage”, and it concedes that the father in this case did so effectively. However, the exception cannot apply “if the arrearage is intrinsically and logically related to the issue appealed.” For example, if the issue is the timing of a change in support, or if the issue is the amount of support (at least in cases where the modification is retroactive to some point before the date of the order), then the arrearage amount is bound to be change if the lower court’s order is changed on appeal. This is especially true, the Court points out, now that Code §20-60.3 requires all support orders to state the amount of any arrearage. It quotes Sharma v. Sharma, 46 Va. App. 584, 620 S.E.2d 553 (2005): "Even if appellant chose not to pursue the arrearage issue, arrearage is so intertwined with the increase in child support, the circuit court, by necessity, must address the arrearage."
And since the Circuit Court has no jurisdiction over an appeal when a required bond is not posted, the appeal must fail for lack of jurisdiction.