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COMMONWEALTH v. WALKER


COMMONWEALTH OF
VIRGINIA,
VIRGINIA DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
EX REL. JANET MAY
v.
RAYMOND M. WALKER


April 18, 1997
Record No. 961377

COMMONWEALTH OF VIRGINIA,
VIRGINIA DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
EX REL. JANET MAY
v.
RAYMOND M. WALKER

Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell,
and Keenan, JJ., and Poff, Senior Justice
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
FROM THE COURT OF APPEALS OF VIRGINIA


The issue in this appeal is whether a circuit court had
jurisdiction to entertain an appeal of a judgment of a juvenile
and domestic relations district court when the appealing party
failed to post an appeal bond.

In May 1986, the Juvenile and Domestic Relations District
Court of Hanover County (the District Court) ordered Raymond M.
Walker to pay Janet May $100 per week for the support of his two
children. In March 1994, the Division of Child Support
Enforcement (the Division) sought and obtained a show cause
order, claiming that Walker was in arrears in his support
payments. On September 9, 1994, following a hearing on the show
cause order, the District Court found Walker in contempt of court
for his failure to pay support in the amount of $2,395. The court
sentenced Walker to six months in jail, but suspended the
sentence on the condition that Walker pay the arrearage and
continue to pay support.

On September 12, 1994, Walker noted an appeal to the Circuit
Court of Hanover County (the Circuit Court). No appeal bond was
set by the District Court or its clerk, and Walker posted no
appeal bond.

On April 4, 1995, Walker and the Division appeared before the
Circuit Court. The Division claimed that the Circuit Court did
not have jurisdiction to hear the case because Walker had not
posted the appeal bond required by Code ‘ 16.1-296(H). The
Circuit Court ruled that it had jurisdiction, heard the case on
its merits, and found that Walker was not in arrears.

The Division appealed the jurisdictional issue to the Court of
Appeals. The Court of Appeals affirmed the Circuit Court’s
judgment, concluding that the Circuit Court had jurisdiction even
though Walker had not posted an appeal bond. Commonwealth Ex
Rel. May
v. Walker, 22 Va. App. 230, 468 S.E.2d 695
(1996). The Court of Appeals held that, "where a [district] court fails to require an appeal bond as required by statute, the
circuit court is not deprived of its jurisdiction." Id.
at 233, 468 S.E.2d at 697. We awarded the Division an appeal.

At the time the present case was before both the District
Court and the Circuit Court, Code ‘ 16.1-296(H) provided, in
pertinent part, the following:

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 . . . . In cases involving support, no
appeal shall be allowed unless and until the party applying for
the same or someone for him shall give 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.

Code ‘ 16.1-296(H) could not be more clear: "no
appeal shall be allowed" unless and until a bond is given by
the party applying for the appeal. The statutory requirements for
appeal bonds always have been construed as mandatory, and the
exercise of appellate jurisdiction has been confined to the
provisions of the written law. The Covington Virginian v. Woods,
182 Va. 538, 543, 29 S.E.2d 406, 408 (1944). We repeatedly have
held that "[the] failure to substantially comply with the
statutory requirements applicable to appeal bonds constitutes a
jurisdictional defect which cannot be corrected after the
expiration of the time within which an appeal may be taken."
Parker v. Prince William County, 198 Va. 231, 235,
93 S.E.2d 136, 139 (1956); accord Ness v. Manuel,
187 Va. 209, 212, 46 S.E.2d 331, 332 (1948); Woods, 182
Va. at 548, 29 S.E.2d at 411; Southern Ry. Co. v. Thomas,
182 Va. 788, 795, 30 S.E.2d 575, 578 (1944); Forrest v. Hawkins,
169 Va. 470, 477, 194 S.E. 721, 723 (1938); Clinch Valley
Lumber Corp.
v. Hagan Estates, 167 Va. 1, 4-5, 187
S.E. 440, 441-42 (1936); Brooks v. Epperson, 164
Va. 37, 43, 178 S.E. 787, 789 (1935).

In the present case, Code ‘ 16.1-296(H) mandated an
appeal bond, and the posting of such bond was required within 30
days from the date of judgment. Godlewski v. Gray,
221 Va. 1092, 1096-97, 277 S.E.2d 213, 216 (1981).[1] However, no bond
was posted within the 30-day period. We hold, therefore, that the
Circuit Court did not have jurisdiction to hear the appeal.

In so holding, we reject the Court of Appeals’ ruling that,
because the District Court failed to require a bond, the Circuit
Court was not deprived of its jurisdiction. We conclude that Code
‘ 16.1-296(H) places the burden on the party applying for
the appeal to ask for and to have the district court set the bond
and approve the surety. It is fundamental that the appealing
party has the burden of perfecting his appeal. See, e.g.,
White v. Morano, 249 Va. 27, 30, 452 S.E.2d 856,
858 (1995) (onus is upon appellant to provide reviewing court
with sufficient record).

We also reject the Court of Appeals’ conclusion that, based
upon Code ‘ 16.1-114.1, "equitable considerations"
dictated that, under the facts of the present case, the Circuit
Court obtained jurisdiction. 22 Va. App. at 235, 468 S.E.2d at
697. Code ‘ 16.1-114.1 provides, in pertinent part, that
"[n]o warrant, motion or other pleading shall be dismissed
by reason of a mere defect, irregularity or omission in the
proceedings in the district court." In the present case, the
failure to post an appeal bond is not a "mere defect,
irregularity or omission in the proceedings;" rather, it is
a fatal jurisdictional defect that cannot be cured. See Hurst
v. Ballard, 230 Va. 365, 367, 337 S.E.2d 284, 285 (1985)
(decided under former Code ‘ 16.1-114); cf. Burks
v. Three Hills Corp., 214 Va. 322, 323-24, 200 S.E.2d 521,
522 (1973) (appeal bond in deficient amount held curable).

Finally, we also reject the Court of Appeals’ ruling that
Walker’s failure to post an appeal bond was harmless error
because he prevailed on the merits in the Circuit Court. As
previously noted, the Circuit Court did not have jurisdiction;
therefore, its purported judgment on the merits is void. See
Slaughter v. Commonwealth, 222 Va. 787, 793, 284
S.E.2d 824, 827 (1981).

Accordingly, we will reverse the judgment of the Court of
Appeals and reinstate the District Court’s judgment which became
final when Walker failed to perfect his appeal.

Reversed and final judgment.

FOOTNOTE:

[1] In
1995, the General Assembly amended Code ‘ 16.1-296(H), consistent
with Godlewski, by adding the following: "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 [of a juvenile and domestic relations district
court]." 1995 Va. Acts ch. 517. The amendment became
effective on July 1, 1995, after the Circuit Court’s ruling in
the present case.

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