MAHONEY v. MAHONEY



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subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.


MAHONEY

v.

MAHONEY


DECEMBER 5, 2000

Record No. 2949-98-4

Present: Chief Judge Fitzpatrick, Judges
Benton, Willis, Elder, Bray, Annunziata, Bumgardner, Frank,
Humphreys and Clements

Argued at Richmond, Virginia

MICHAEL A. MAHONEY, SR.

        

v.

JEANNE M. MAHONEY

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY

Benjamin N. A. Kendrick, Judge


OPINION BY JUDGE ROSEMARIE ANNUNZIATA

John M. DiJoseph (Kavrukov & DiJoseph, on
brief), for appellant.

John R. Angus (Weiner, Weiner & Weiner,
P.C., on briefs), for appellee.

Amicus Curiae: Commonwealth of Virginia,
Department of Social Services, Division of Child Support
Enforcement (Mark L. Earley, Attorney General; Ashley L. Taylor,
Deputy Attorney General; Robert B. Cousins, Jr., Senior Assistant
Attorney General; Craig M. Burshem, Regional Special Counsel;
Jason P. Cooley, Special Counsel; Jack A. Maxwell, Special
Counsel; Gary Webb, Special Counsel; William K. Wetzonis, Special
Counsel, on brief), for appellee.

On April 4, 2000, a divided panel of this Court
reversed and remanded the trial court’s dismissal of Michael A.
Mahoney’s appeal from a judgment of the juvenile and domestic
relations district court. We granted appellee’s petition for a
rehearing en banc and stayed the mandate of that
decision. Upon rehearing en banc, we hold the trial
court did not err in its ruling that upon failure to post an
appeal bond fixed under Code ? 16.1-296(H), appellant’s
appeal must be dismissed. Therefore, we affirm the decision of
the trial court.

ANALYSIS

Guided by well-settled principles, we review
the evidence on appeal in the light most favorable to the party
prevailing below. On August 28, 1998, the Arlington Juvenile and
Domestic Relations District Court (J&DR) found appellant,
Michael Mahoney (father), in civil contempt of court on Jeanne
Mahoney’s Rule to Show Cause which was issued against the father
for failing to comply with court-ordered support, both child and
spousal, as well as medical bills and attorney’s fees. The court
entered judgment against father in the amount of $151,902.52, the
amount in arrears due to mother. On appeal to the circuit court,
father characterized the appeal as one challenging the
"jurisdiction of the Court [to] enter any orders and the
validity of all orders entered in this case based on fraud."
He specifically noted his intention not to appeal the amounts of
support found due and owing. Bond was fixed at $165,888.62 by the
juvenile court. When no bond was posted, the circuit court
dismissed father’s appeal upon mother’s motion. The court’s order
of dismissal was appealed to this Court. We affirm the circuit
court’s decision on the grounds that follow.

Code ? 16.1-296(H) provides, in pertinent
part:

No appeal bond shall be required of a party
appealing from an order of a juvenile and domestic relations
district court except for that portion of any order or judgment
establishing a support arrearage or suspending payment of support
during pendency of an appeal. In cases involving support, no
appeal shall be allowed until the party applying for the same or
someone for him gives bond, in an amount and with sufficient
surety approved by the judge or by his clerk if there is one, to
abide by such judgment as may be rendered on appeal if the appeal
is perfected or, if not perfected, then to satisfy the judgment
of the court in which it was rendered
. Upon appeal from a
conviction for failure to support or from a finding of civil or
criminal contempt involving a failure to support, the juvenile
and domestic relations district court may require the party
applying for the appeal or someone for him to give
bond . . . .  An appeal will not be
perfected unless such appeal bond as may be required is filed
within thirty days from the entry of the final judgment or order.

(Emphasis added). Mahoney contends the circuit
court erroneously dismissed his appeal de novo
because he limited his appeal to a challenge of the court’s
jurisdiction. He reasons that, having specifically excluded from
his notice of appeal the juvenile court’s establishment of a
support arrearage and its finding of contempt, he was not
required to post an appeal bond under Code ? 16.1-296(H).
We disagree.

Mahoney’s challenge to the validity of
"all orders entered" by the juvenile court, and to the
authority of the court to enter any such orders, necessarily and
logically implicates a challenge to the subject of the orders
entered by the juvenile court. In this case, the order Mahoney
appealed from the juvenile court to the circuit court established
a support arrearage he owed to his former wife. Thus, Mahoney’s
appeal from the juvenile court’s order was necessarily subject to
the jurisdictional requirement of Code ? 16.1-296(H), which
requires an appeal bond "for that portion of any order
establishing a support arrearage."

In addition, not only is the substantive issue
of support arrearages logically related to, and inherent in,
Mahoney’s challenge to the jurisdiction of the court and the
claimed invalidity of "all orders entered," but the law
governing appeals from courts not of record also provides a well
established legal foundation for the imposition of bond. An
appeal from a court not of record is tried de novo.
See Code ?? 16.1-106, 16.1-113; Copperthite Pie
Corp. v. Whitehurst
, 157 Va. 480, 488, 162 S.E. 189, 191
(1932) (citing Southern Ry. Co. v. Hill, 106 Va. 501, 505,
56 S.E. 278, 280 (1907)); see also Hailey v. Dorsey,
580 F.2d 112, 114 (4th Cir. 1978), cert. denied,
440 U.S. 937 (1979). Such an appeal transfers the entire
record to the circuit court for retrial as though the case had
been originally brought there
. See Addison v.
Salyer
, 185 Va. 644, 650, 40 S.E.2d 260, 263 (1946). Upon
transfer, the order and judgment of the lower court are annulled.
See Ragan v. Woodcroft Village Apts., 255 Va. 322,
327, 497 S.E.2d 740, 742 (1998) (citing Nationwide Mut. Ins.
Co. v. Tuttle
, 208 Va. 28, 32, 155 S.E.2d 358, 361 (1967)).

It follows that because no case or judgment
exists in the lower court, and because the circuit court upon
appeal acts as the tribunal of original jurisdiction, it must
address and dispose of all issues raised by the petitioner in the
lower court. See Addison, 185 Va. at 649, 40 S.E.2d
at 263 ("’A court which hears a case de novo
. . . acts not as a court of appeals but as one
exercising original jurisdiction.’" (quoting Gemmell,
Inc. v. Svea Fire Ins. Co.
, 166 Va. 95, 98, 184 S.E. 457, 458
(1936))). Specifically, the circuit court must decide both the
issue of jurisdiction and the issue of arrearages, because no
judgment on arrearages exists once the matter is appealed from
the lower tribunal.
[1]

The policy underlying the requirement of appeal
bonds is clear. An appeal bond provides assurances that any
judgment that may be rendered on appeal, if perfected, will be
satisfied. See

Code ? 16.1-107; Hutchins v. Carillo,
27 Va. App. 595, 606, 500 S.E.2d 277, 282 (1998) (noting that
"the essential function of an appeal bond [is] ‘to protect
the [appellee] against any loss or damage he may sustain by
reason of the suspension of his right to proceed with the
collection of his judgment against the [appellant]‘"
(quoting Jacob v. Commonwealth ex rel. Myers, 148 Va. 236,
242, 138 S.E. 574, 576 (1927))). Such bonds also provide
assurances in cases in which an appeal is not perfected that the
judgment of the court in which it was rendered will be satisfied.
See id. Indeed, the policy considerations
underlying the need for bond upon appeal from the lower court are
so material to the statutory scheme reflected in Code
? 16.1-296(H) that the failure to post the required bond
will constitute reversible error even when the appellant prevails
in the trial de novo. See Commonwealth ex
rel. May v. Walker
, 253 Va. 319, 323, 485 S.E.2d 134, 136-37
(1997).

In summary, we hold that the JD&R order
from which appellant appealed addressed only one subject, viz.,
that of support arrearages.
[2] As such, Mahoney’s failure to post bond under Code
? 16.1-296(H) was fatal to his appeal. We accordingly
affirm the decision of the trial court to dismiss his appeal.

Affirmed.


Benton, J., dissenting.

In pertinent part, Code ? 16.1-296(H)
provides as follows:

No appeal bond shall be required of a party
appealing from an order of a juvenile and domestic relations
district court except for that portion of any order or judgment
establishing a support arrearage or suspending payment of support
during pendency of an appeal. In cases involving support, no
appeal shall be allowed until the party applying for the same or
someone for him gives bond, in an amount and with sufficient
surety approved by the judge or by his clerk if there is one, to
abide by such judgment as may be rendered on appeal if the appeal
is perfected or, if not perfected, then to satisfy the judgment
of the court in which it was rendered. Upon appeal from a
conviction for failure to support or from a finding of civil or
criminal contempt involving a failure to support, the juvenile
and domestic relations district court may require the party
applying for the appeal or someone for him to give bond, with or
without surety, to insure his appearance and may also require
bond in an amount and with sufficient surety to secure the
payment of prospective support accruing during the pendency of
the appeal. An appeal will not be perfected unless such appeal
bond as may be required is filed within thirty days from the
entry of the final judgment or order.

Although the statute clearly states that
"[i]n cases involving support, no appeal shall be allowed
until the party applying for the same or someone for him gives
bond," in equally clear language the statute begins by
stating that "[n]o appeal bond shall be required . . .
except for that portion of any order or judgment . . .
establishing a support arrearage." Id. (emphasis
added).

By its explicit terms, the statute removes the
requirement for posting a bond except as provided in the statute.
The provision specifying that a bond shall be required for an
appeal of a judgment establishing support arrearages implicitly
recognizes that an order that sets arrearages may have a
component that does not establish a support arrearage. In such a
case, an appeal bond is required only for "that portion of
any order . . . establishing a support arrearage."

Avery v. Commonwealth, 22 Va. App. 698,
700, 472 S.E.2d 675, 676 (1996) (citation omitted). I would hold
that Michael A. Mahoney’s appeal of the "jurisdiction of the
Court [to] enter any order" is not an appeal of a
"portion of any order or judgment establishing a support
arrearage."

When Mahoney appealed the judgment to the
circuit court, he wrote on the notice of appeal that he "appeals
jurisdiction of the Court [to] enter any orders
and the
validity of all orders entered in this case based on fraud"
and that "[h]e is not appealing amounts of support."
(Additional emphasis added). Consistent with his notation on the
notice of appeal, Mahoney informed the trial judge during the
hearing that he was "not appeal[ing] the amount of
support" but was "appeal[ing] . . . the lack of subject
matter jurisdiction by the [juvenile and domestic relations
district] court." Specifically, Mahoney alleged that the
juvenile court never acquired jurisdiction under the Uniform
Child Custody Jurisdiction Act or the Uniform Interstate Family
Support Act. Ruling that a party "can’t piecemeal the
appeal," the trial judge apparently recognized that
Mahoney’s challenge was not to any portion of the judgment but to
the power of the court to render any judgment. Nevertheless, the
trial judge granted the motion to dismiss.

In my opinion, Mahoney’s appeal is not subject
to the appeal bond requirement because it is not an appeal from
"that portion of any order or judgment establishing a
support arrearage." Code ? 16.1-296(H). A judgment
entered by a court when it lacks subject matter jurisdiction is
void, and that judgment is subject to a challenge at any time. Morrison
v. Bestler
, 239 Va. 166, 170, 387 S.E.2d 753, 755-56 (1990).
In addition, a party may challenge a judgment on the basis of a
court’s failure to abide by mandatory statutory requirements. In
this regard, the Supreme Court has held that "[a] court’s
authority to exercise its subject matter jurisdiction over a case
may be restricted by a failure to comply with statutory
requirements that are mandatory in nature and, thus, are
prerequisite to a court’s lawful exercise of that
jurisdiction." Dennis Moore v. Commonwealth, 259 Va.
405, 409, 527 S.E.2d 415, 417 (2000). Such a failure renders the
court without jurisdiction to act and renders the judgment void. See
David Moore v. Commonwealth, 259 Va. 431, 439, 527 S.E.2d
406, 410 (2000). Mahoney’s appeal directly challenges the
juvenile court’s power to render its judgment.

The Supreme Court has ruled as follows:

"[T]he record is never conclusive as to
the recital of a jurisdictional fact, and the defendant is always
at liberty to show a want of jurisdiction, although the record
avers the contrary. If the court had no jurisdiction, it had no
power to make a record, and the supposed record is not in truth a
record."

Slaughter v. Commonwealth, 222 Va. 787,
793, 284 S.E.2d 824, 827 (1981) (citation omitted). "[A]ny
subsequent proceeding based on . . . a [jurisdictionally] defective judgment is void or a nullity." Morrison,
239 Va. at 170, 387 S.E.2d at 756.

We have addressed situations in which parties
in support disputes sought to challenge contempt rulings against
them and did not want to post the bond required by statute. In McCall
v. Commonwealth
, 20 Va. App. 348, 457 S.E.2d 389 (1995), we
held that, under the pre-1992 version of Code ? 16.1-107, a
court has no duty to bifurcate support arrearage judgments from
other issues to determine whether a party must post a bond. Id.
at 349, 457 S.E.2d at 390. We noted that when McCall appealed
from a juvenile court judgment, he "did not specify or
indicate in any way that he was appealing only the civil contempt
citation and not the determination as to the amount of his
support arrearage." Id. at 350, 457 S.E.2d at 391. We
also noted that McCall initially asserted the limited nature of
his appeal only in this Court. See id. at 350, 457
S.E.2d at 390. Thus, we affirmed the ruling dismissing McCall’s
appeal because he did not bifurcate the issues. In Avery,
however, we reversed an order dismissing an appeal on similar
grounds because the party showed clearly that he "sought
only to appeal the contempt finding." 22 Va. App. at 702,
472 S.E.2d at 677.

I believe we should treat challenges to
jurisdiction in the same way we treat appeals from contempt
orders. In this case, as in Avery, the appellant, Mahoney,
has "sufficiently ‘inform[ed] the court that he was pursuing
an appeal of the [court's jurisdiction] and not appealing the
determination of the support arrearage.’" Id.
(quoting McCall, 20 Va. App. at 352-53, 457 S.E.2d at
392). Mahoney separately listed in his notice of appeal to the
circuit court the matters he wished to appeal and he orally
stated at the circuit court hearing the limited nature of his
appeal. He did not challenge the support arrearage judgment.

For these reasons, I would reverse and remand
this matter to the circuit court for consideration solely on the
issue whether the juvenile court acquired jurisdiction to
adjudicate the matter.

FOOTNOTES:

[1] For example, if jurisdiction is
found to exist on appeal, the circuit court must determine
arrearages. It is reversible error to permit the judgment of the
lower court to be introduced as evidence in the case and no other
judgment on the issues is extant, because that of the lower court
is annulled. See Gravely v. Deeds, 185 Va. 662,
664, 40 S.E.2d 175, 176 (1946); see also Nationwide,
208 Va. at 33, 155 S.E.2d at 361-62. Conversely, if the circuit
court finds no jurisdiction exists, the case must be dismissed
and no arrearages established. Moreover, that the party bringing
the appeal prevails in the trial de novo is
insufficient to avoid the dictate of Code ? 16.1-296(H)
that "no appeal shall be allowed unless and until a bond is
given by the party applying for the appeal." Commonwealth
ex rel. May v. Walker
, 253 Va. 319, 322, 485 S.E.2d 134, 136
(1997). In fact, the circuit court does not even have
jurisdiction to hear the case unless the appeal bond is posted. See
id. at 323, 485 S.E.2d at 136 ("[T]he failure to post
an appeal bond . . . is a fatal
jurisdictional defect . . . .").

[2] We do not address in this opinion the applicability of
Code ? 16.1-296(H) to an order which addresses multiple,
independent issues unrelated to the issue of support.

 

 

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