Virginia Family Law Appeals

Ipsen v. Moxley: JUVENILE AND CIRCUIT – CONTINUED EXISTENCE OF JDR PENDENTE LITE SUPPORT ORDER – NONSUIT IN CIRCUIT COURT — THE RESULT OF DIVORCE NONSUIT – §20-79 CONSTRUED.

21 VLW 1392 (4/10/07)
The concurrent-jurisdiction overlap between juvenile and circuit courts is always good for tangled procedural situations and lengthy appellate-court analyses.  In one of those cases in which the circuit court grants a divorce saying that it leaves the matters of child custody, child support and alimony alone so that the juvenile court can handle them, the Court of Appeals has a number of instructive things to say.   It was held that the support order from the juvenile court that was shoved aside when divorce proceedings were filed persisted.  On this appeal the Court of Appeals held that the nonsuit of the divorce case “restores authority” to the JDR court support order that existed before the divorce case was filed. 

Lewis v. Culpeper County DSS: PARENTAL RIGHTS TERMINATION — EXCLUSIVE ORIGINAL JURISDICTION — NEW TERMINATION PETITION AFTER NONSUIT.

What happens after a local DSS tries to terminate a father’s parental rights, father loses in juvenile court, appeals for trial de novo in circuit, and then as soon as it gets to a hearing, the DSS nonsuits?  If there is a refiling should that be in circuit court?  No, it has to be in juvenile court, the Court of Appeals points out, as required by the jurisdictional statutes.

JUVENILE AND CIRCUIT – CONTINUED EXISTENCE OF JDR PENDENTE LITE SUPPORT ORDER – NONSUIT IN CIRCUIT COURT — THE RESULT OF DIVORCE NONSUIT – §20-79 CONSTRUED.

The concurrent-jurisdiction overlap between juvenile and circuit courts is always good for tangled procedural situations and lengthy appellate-court analyses. In one of those cases in which the circuit court grants a divorce saying that it leaves the matters of child custody, child support and alimony alone so that the juvenile court can handle them, the Court of Appeals has a number of instructive things to say. In Ipsen v. Moxley, ___ Va. App. ___, ___ S.E.2d ___, 21 VLW 1392 (4/10/07), it was held that the support order from the juvenile court that was shoved aside when divorce proceedings were filed persisted. On this appeal the Court of Appeals held that the nonsuit of the divorce case “restores authority” to the JDR court support order that existed before the divorce case was filed.

JUVENILE COURTS -- PATERNITY -- PROCEDURE -- ISSUE PRECLUSION.

A court-not-of-record's mere notes do not constitute a court order adjudicating paternity that would preclude a supposed father from later proving by DNA testing that he was not the father of a child for whom he had agreed to pay child support, the Court of Appeals holds in Alexander v. Morgan,  452 S.E. 2d 370, 9 VLW 795 (12/20/94).  The judge made a ruling and some notes, but no endorsed order was ever entered as planned after the JDR Court hearing in which the supposed father had in effect acknowledged paternity and agreed to a support amount.  Instead, a written agreement was entered into within three months of the ruling.  The juvenile court's mere notes did not make the appellant irrevocably the legal father of this child.  After all, the court's notes expressly showed that they were not intended to constitute a final order. 

JUVENILE COURTS – JDR & CIRCUIT – APPEALABILITY – INTERLOCUTORY.

A circuit court order denying a motion to dismiss on res judicata grounds, and remanding a support case to juvenile court for paternity blood tests and further proceedings, is not appealable.  Such an order is interlocutory, the Court of Appeals explained in Whitaker v. Day, 32 Va. App. 737, 530 S.E.2d 924, 15 VLW 162 (7/11/00).  This non-final order does not "adjudicate the principles of the cause."

JUVENILE COURTS — AUTHORITY TO ORDER TREATMENT — AUTHORITY TO COUNTERMAND DSS.

A Juvenile judge can order a minor into residential treatment even if the DSS, which has custody, disagrees, the Court of Appeals held in S.G. v. Prince William County DSS,  12 VLW 291 (8/5/97). The DSS argued that once it was given custody, the court lost its jurisdiction and only the DSS had the authority to order treatment. However, the Court of Appeals held that the juvenile court’s §16.1-281(E) authority to “review the status” of minors in state custody also implies the power to act on its review, and §16.1-278.4(6)(c)’s grant of power to the DSS gives the DSS precedence only over other parties or potential parties, not over the courts.

JUVENILE COURTS -- APPEAL: Jones v. DCSE

The Department of Child Support Enforcement can appeal from a juvenile judge's decision to overturn their administrative support order.  However, a party or an attorney for the party -- not a non-lawyer DCSE bureaucrat -- must sign the appeal.  9 VLW 630 (11/8/94).

JUVENILE COURT APPEALS -- FEE AWARDS.

In Donald v. Fairfax County Department of Human Development, unpublished,  R 1533-93-4 (8/23/94), the Court of Appeals made some new law concerning the possibility of fee awards to successful appellees from juvenile court.   Donald was subjected to a five-day trial on charges that she had sexually abused her daughters, and at the end thereof, the juvenile judge called the Commonwealth's evidence incredible, and said that "It would be a travesty of justice" if anyone appealed this case to circuit court.  The welfare department appealed and subjected her to an 11-day trial in circuit court.  The mother was successful there, but only after hiring one of the most expensive domestic relations law firms in the state and expending many thousands of dollars on her defense.  The circuit judge said she was dismissing the case because the welfare department had not perfected its appeal from juvenile court within 10 days.  She denied an award of fees and costs on the ground that sovereign immunity precludes such an award against a state agency.  The Court of Appeals held in its unpublished opinion, with a four-page dissent by Judge Benton, that the circuit judge in denying fees and costs reached the right result for the wrong reason:  no fees can be awarded in a case where the appeal to circuit court was untimely taken.  Untimely appeal means no jurisdiction in circuit court, and that means no authority to award anything.  The welfare department never raised this defense to fees below, but a jurisdictional argument can be raised at any time.

JUVENILE COURT APPEALS – BOND REQUIREMENT – SUPPORT CASES.

The perennial subject of bond requirements in juvenile court appeals, an area in which recently-discovered but draconian requirements bid fair to eliminate this kind of troublesome litigation from the circuit courts, is again clarified by the Court of Appeals.  In three consolidated cases, the fathers were trying to appeal JDR court orders to pay child support arrearage.  They claimed, however, that the jurisdictional appeal bond requirements to get into circuit court did not apply because what they were appealing was the contempt findings against them, and not the rulings as to monetary arrearages themselves.  Construing Virginia Code §16.1-296(H) again, the Court of Appeals reemphasized that it is absolutely mandatory that the juvenile court has to set an arrearage bond as big as the juvenile court's monetary judgment, and then has the discretionary ability to impose in addition an appearance bond or an accrual bond or both.   DCSE v. Hottinger, ___ Va. App. ___, ___ S.E.2d ___, 17 VLW 99 (6/19/02).

JUVENILE COURT — JURISDICTION.

  Did you know that a court's complete lack of subject matter jurisdiction can be waived?  The Court of Appeals knows that, and it blames the General Assembly. In Burke v. Commonwealth, ___ Va. App. ___. ___ S.E.2d ___, 15 VLW 1126 (2/23/99), it holds that the Legislature, when it adopted Code §16.1-241(J) on "family violence", created an exception to the rule that lack of subject matter jurisdiction cannot be waived.  Thus a criminal defendant can't argue now that the Juvenile Court did not have jurisdiction to conduct his preliminary hearing because his girl friend was not a "family or household member" as defined in §16.1-241(J).  He waived that objection because he did not raise it before his trial, and the Juvenile Court can try girl friend cases or any kinds of cases it wants if you don't state your jurisdictional objection.