NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.
DECEMBER 19, 2000
Record No. 0157-00-2
Present: Judges Coleman, Elder and Annunziata
Argued at Richmond, Virginia
LINDA M. COMER
ROBERT B. COMER, JR.
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
James F. D’Alton, Jr., Judge
MEMORANDUM OPINION BY JUDGE
LARRY G. ELDER
Beverly M. Murray (The Law Offices of Beverly
McLean Murray, on brief), for appellant.
No brief or argument for appellee.
This matter arises out of the 1997 request of
Linda Comer (mother) for custody of the minor child (child) born
of her marriage to Robert B. Comer, Jr. (father). Both mother and
father were proceeding pro se at that time. The
circuit court denied mother’s request for custody but said it
would consider awarding visitation. As permitted by Code
? 16.1-266(D), the court appointed Michele L. Ferris as
guardian ad litem for the child. Following a
hearing on the visitation issue, which included an in camera
interview with the child, the court entered an order granting the
request of the guardian ad litem that "there
shall be no visitation between [mother and child] until such time
as the child initiates any visitation with the mother."
Mother then obtained counsel, and following the
denial of a motion to reconsider, mother filed a notice of appeal
and indicated that she mailed a copy of the notice to both the
guardian and the appellee father. The Court of Appeals, following
receipt of mother’s notice of appeal and the record of the
proceedings in the trial court, notified mother, mother’s
counsel, father, and the child’s guardian ad litem
of said receipt. In bold print in that same notice, the Court
advised mother and her counsel to "consult Part 5A of the
Rules [of the Supreme Court of Virginia] for information
on filing times and other requirements" and indicated
that "[f]ailure to comply with the rules may result in
various sanctions, including dismissal of the appeal."
When counsel for mother filed mother’s opening
brief with this Court, she included a certificate indicating that
she served appellee father with copies of the brief, but the
certificate did not mention the guardian ad litem.
At that time, the guardian ad litem remained a
counsel of record in the case and was classified as an
"opposing counsel" for purposes of the Rules. See
Rules 1:5, 5A:1. Pursuant to Rule 5A:20(h), mother was required
to certify that she mailed or delivered the requisite number of
copies of her opening brief to "opposing counsel on or
before the date of filing." See also Rule
5A:19(e). Because mother failed to comply with the requirements
of the Rules, the guardian ad litem did not receive
notice of the filing or a copy of mother’s brief and had an
inadequate opportunity to respond in order to protect the
interests of the child. Mother, therefore, failed to bring a
necessary party before the Court. See Asch v. Friends
of the Community of the Mount Vernon Yacht Club, 251 Va. 89,
90-91, 465 S.E.2d 817, 818 (1996) (holding that necessary party
is one who has an interest "which is likely either to be
defeated or diminished by the plaintiff’s claim" and that
"court lacks the power to proceed with a suit unless all
necessary parties are properly before the court," even where
party received notice of appeal).
Because mother failed to serve a copy of her
opening brief on the guardian ad litem for the
minor child, a necessary party to this appeal, the appeal is
 Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.