CALFEE v. CALFEE


CALFEE v. CALFEE


JANUARY 26, 1999
Record No.
2622-97-2

CHARLES DOUGLAS CALFEE

v.

LISA WHITE CALFEE

FROM THE CIRCUIT COURT OF
CHESTERFIELD COUNTY

Timothy J.
Hauler, Judge

Argued at
Norfolk, Virginia

Present:
Judges Benton, Elder and Bray

OPINION BY
JUDGE RICHARD S. BRAY

Edwin F.
Brooks (Jackson, Pickus & Associates, P.C., on brief), for
appellant.

Sharon B.
Ten (Cawthorn, Picard & Rowe, P.C., on brief), for appellee.


Charles Douglas Calfee
(husband) appeals an order of the trial court (1) finding him in
contempt for failure to comply with the court’s prior order of
child support and establishing related arrearages, (2) modifying
the previous order, and (3) awarding Lisa White Calfee (wife)
attorney’s fees. Husband challenges the jurisdiction of the
court, arguing that the matters in issue were within the
exclusive province of the Chesterfield Juvenile and Domestic
Relations District Court (J&D Court).
[1] We agree and reverse the
decree.

I.

The procedural history of
this appeal is substantially uncontroverted. Wife petitioned the
J&D Court for an award of support from husband for the
parties’ two infant children. Following a hearing, the J&D
Court ordered husband to pay $109 per week support and a portion
of the children’s medical costs unpaid by insurance. The order,
entered October 6, 1993, further provided that husband’s
obligations would escalate on November 1, 1993, to $128 per week
support and forty percent of the specified medical expenses.

Husband appealed the
J&D Court order to the trial court and a de novo
hearing was conducted on February 17, 1994. Husband failed to
appear but was represented by counsel. By order entered February
28, 1994, the court "denied" husband’s appeal, ruled
that he was "in arrears . . . a total
. . . of $2,951.18" under the award of the J&D
Court, and assessed additional attorney’s fees.
[2] The court
further ordered "all sums due" payable ten days after
service of the order upon husband or "a warrant for
[husband's] arrest shall be issued." The trial court later
revisited the proceeding, sua sponte, by order
dated September 29, 1994, and "remanded" the cause to
the J&D Court, after expressly finding "the purpose of
this matter having been accomplished."

The record is thereafter
silent until June 2, 1997, when wife filed motions with the trial
court to "reinstate this matter on the docket" and to
modify the earlier support order of the J&D Court. Wife also
alleged husband’s noncompliance with the trial court order of
February, 1994, and petitioned, inter alia, that he
be punished for contempt. In response, the court ordered
"this matter . . . reinstated on the active
docket" and that husband appear "on July 25, 1997, to
show cause . . . why he should not be held in contempt
for the alleged failure to comply with [the] . . .
prior order." Husband was present, pro se, at
the appointed date and hour, evidence was heard ore tenus,
and, by order of August 1, 1997, the court adjudicated him in
contempt of the February order, required that he pay wife
arrearages of $9,306.64 "within 180 days," and
sentenced him to twelve months in jail.
[3] The court also increased
husband’s child support and health care obligations and awarded
wife attorney’s fees.

Thereafter, husband, by
counsel, moved to vacate the order, arguing that the court had
"terminated [its] . . . jurisdiction
. . . over the . . . dispute" upon
remand to the J&D Court by order entered September 29, 1994.
In denying husband’s motion, the court concluded that,
"[a]fter remand[, it] had concurrent jurisdiction with the
[J&D Court] to enforce [the] court’s order of February 28,
1994," thereby providing wife with "the option to go to
either court." Husband now appeals, pursuing the
jurisdictional issue before this Court.

II.

Code
Sect. 16.1-241(A), unless otherwise "provided,"
vests "exclusive original jurisdiction" in the juvenile
and domestic relations district courts (J&D courts)
"over all cases, matters and proceedings involving: A. The
. . . support . . . of a child:
. . . 3. [w]hose . . . support is a subject
of controversy or requires determination." Code
Sect. 16.1-241(A)(3). However, "[i]n such cases[,] jurisdiction shall be concurrent with and not exclusive of courts
having equity jurisdiction, except as provided in [Code] Sect. 16.1-244." Id. (emphasis added). Code
Sect. 16.1-244(A) empowers the circuit court, concurrently
with the J&D courts, "to determine the . . .
support of children when . . . incidental to the
determination of causes pending in such [circuit] courts."
Code Sect. 16.1-244(A). An exception divests J&D courts
of jurisdiction if "a suit for divorce has been filed in a
circuit court, in which the . . . support of children
of the parties . . . is raised by the pleadings and a
hearing is set by the . . . court . . . on
such issue for a date . . . within twenty-one days of
the filing." Id.; see also Code
Sect. 20-79(a).

"[C]ircuit courts may
assume jurisdiction [of child support issues] either by an appeal
from the [J&D] courts or by the direct filing of an
appropriate proceeding in the circuit courts." Peple v.
Peple
, 5 Va. App. 414, 418, 364 S.E.2d 232, 235 (1988); see
Code Sect. 16.1-296; Title 20. When, as here, jurisdiction
is invoked by appeal from a child support order of the J&D
court, the attendant "proceedings in the circuit court shall
conform to the equity practice where evidence is heard ore
tenus," Code Sect. 16.1-296(F), and "shall
be heard de novo[,] . . . without formal
pleadings in writing." Code Sect. 16.1-136; see Peple,
5 Va. App. at 419, 364 S.E.2d at 236 ("circuit court must
conduct a de novo hearing . . . on appeal
from the [J&D] courts"). Such appeal "’annuls the
judgment of the inferior tribunal as completely as if there had
been no previous trial.’" Peple, 5 Va. App. at 419,
364 S.E.2d at 236 (citation omitted).

"Upon the rendition
of final judgment upon an appeal from the [J&D] court, the
circuit court shall cause a copy of its judgment to be filed with
the [J&D] court within twenty-one days of entry of its order,
which shall thereupon become the judgment of the [J&D] court." Code Sect. 16.1-297. Additionally,

the circuit court
may remand [the proceedings] to the jurisdiction of the
[J&D] court . . ., under the terms of its
order or judgment, and thereafter such . . .
shall be and remain under the jurisdiction of the
[J&D] court in the same manner as if such court had
rendered the judgment in the first instances.

Id. Thus, upon
remand of a judgment rendered on appeal, the former jurisdiction
of the J&D court over the proceedings is restored, once again
subject to the potential exercise of jurisdiction by the circuit
court in accordance with Code Sects. 16.1-241, 16.1-244 and
16.1-296.

Similarly, jurisdiction
lost by the J&D court to the circuit court "[i]n any
suit for divorce" may be resumed by "transfer to the
[J&D] court" by the circuit court for "enforcement
of its orders" or "[a]fter the entry of a decree of
divorce" for "any other matters pertaining to
support" pursuant to Code Sect. 20-79(c). Thereafter,
both courts enjoy concurrent jurisdiction to adjudicate such
issues, with the circuit court exercising "its continuing
jurisdiction" by simply "reinstat[ing] the case on its
docket." Crabtree v. Crabtree, 17 Va. App. 81, 84,
435 S.E.2d 883, 886 (1993); see Romine v. Romine,
22 Va. App. 760, 763-64, 473 S.E.2d 99, 101 (1996); see also
Code Sect. 20-121.1.
[4]

Nevertheless, "the
procedural distinction between an appeal under Code
Sect. 16.1-136 and a divestiture of further jurisdiction in
the [J&D] court by operation of Code Sect. 16.1-244(A)
[(institution of divorce proceedings)] is significant." Peple,
5 Va. App. at 419-20, 364 S.E.2d at 236. A decree or order of the
circuit court emanating from a "suit for divorce,"
after displacing the jurisdiction of the J&D court, may be
transferred to such court for enforcement or related matters,
thereby restoring concurrent jurisdiction in both courts, without
impairing the properly invoked exercise of jurisdiction by the
circuit court over the transferred issues. In contrast, an order
adjudicating an appeal from the J&D court to the circuit
court is not entitled to the procedural convenience of transfer
provided by Code Sect. 20-79. Such order, together with the
related issues embraced by the appeal, rests within the exclusive
jurisdiction of the circuit court pending disposition by that
court.

III.

Here, upon resolution of
the appeal, the circuit court declared its "purpose
. . . accomplished" and "remanded" the
"matter" to the Chesterfield J&D Court, thereby
expressly surrendering jurisdiction to the original statutory
authority of the J&D Court pursuant to Code
Sect. 16.1-297. Unaided by Code Sect. 20-79, such
"remand" created no concurrent jurisdiction in the
circuit court, save that provided by Code Sects. 16.1-241,
16.1-244, and precluded reinstatement of the cause to the docket
of the trial court as a decree or order related to divorce or
maintenance in accordance with Code Sects. 20-79(c),
20-121.1. Thus, the trial court’s belated attempt to exercise
concurrent jurisdiction through the disputed order was without
statutory authority and jurisdictionally infirm. See Church
v. Church
, 24 Va. App. 502, 505, 483 S.E.2d 498, 500 (1997).

Accordingly, we reverse
the decree.

Reversed and final
judgment
.

Benton, J., concurring.

I concur except as to the
parts of the opinion that conflict with views I expressed in Crabtree
v. Crabtree
, 17 Va. App. 81, 89-92, 435 S.E.2d 883, 888-91
(1993) (Benton, J., dissenting), and I concur in the judgment
reversing the decree.

 

 

FOOTNOTES:

[1] Husband also
complains that he was denied due process during the proceedings,
but our decision moots this issue.

[2] The trial court did not
explicitly redetermine a support award but simply acted on the
order of the J&D Court on appeal.

[3] The jail sentence was
subject to suspension upon husband’s "posting
. . . a $10,000.00 bond."

[4] "In any suit which
has been stricken from the docket, and in which complete relief
has not been obtained, upon the motion or application of either
party . . ., the same shall be reinstated upon the
docket . . . to grant full relief to the parties."
Code Sect. 20-121.1.

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