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THE HONORABLE A. ELISABETH OXENHAM v. J.S.M., ETC., ET AL.


THE HONORABLE A.
ELISABETH OXENHAM,

JUDGE OF THE JUVENILE
AND DOMESTIC

RELATIONS DISTRICT COURT
OF HENRICO COUNTY

v.

J.S.M., ETC., ET AL.


June 5, 1998

Record No. 980437

THE HONORABLE A. ELISABETH OXENHAM,

JUDGE OF THE JUVENILE AND DOMESTIC

RELATIONS DISTRICT COURT OF HENRICO COUNTY

v.

J.S.M., ETC., ET AL.

OPINION BY JUSTICE CYNTHIA D. KINSER

FROM THE CIRCUIT COURT OF HENRICO COUNTY

James E. Kulp, Judge

Present: All the Justices


On January 9, 1998, the Circuit Court of Henrico County issued
a writ of prohibition against the Honorable A. Elisabeth Oxenham,
Judge of the Juvenile and Domestic Relations District Court of
Henrico County (Judge Oxenham). Under the terms of the circuit
court’s order, Judge Oxenham could not prevent Robert H.
Martin (Robert) from retaining an attorney to represent his minor
son on a petition charging assault and battery filed by the
child’s mother. The dispositive issue in this appeal is
whether Judge Oxenham had jurisdiction to adjudicate the
disposition of the petition and, in doing so, had authority to
appoint counsel to represent the child. We conclude that she had
both the jurisdiction and authority to act and will, therefore,
reverse the judgment of the circuit court.

I.

On August 18, 1997, Olivia Lee Ligon Martin (Olivia) filed a
petition against J.S.M., [1] her ten-year-old son, alleging
that he committed assault and battery against her on July 2,
1997, in violation of Code Sec.18.2-57.2. At the initial
hearing on the petition before Judge Oxenham, a dispute arose
between the parents regarding who should represent J.S.M. on the
pending assault and battery charge. At that time, J.S.M.’s
parents were involved in divorce and custody proceedings. Olivia
had sole custody of J.S.M., and Robert’s visitation rights
with J.S.M. had been temporarily suspended. Robert stated that he
had retained the counsel representing him in the divorce
proceedings to defend J.S.M. Olivia, however, wanted the attorney
representing her in the divorce case to serve as her son’s
counsel or, in the alternative, to have the court appoint an
attorney for J.S.M.[2] The issue of legal
representation for J.S.M. remained unresolved at the conclusion
of the hearing.

On October 31, 1997, J.S.M., individually and by his next
friend, Robert, filed a motion requesting Judge Oxenham to recuse
herself from hearing the pending petition against J.S.M. or, in
the alternative, to permit Robert to choose counsel for J.S.M. In
a November 6, 1997 letter opinion, Judge Oxenham denied the
motion and appointed defense counsel and a guardian ad litem
for J.S.M. Judge Oxenham based her decision on the unusual degree
of animosity between J.S.M.’s parents and on Olivia’s
request for the court to appoint an attorney to represent J.S.M.
since she could not afford to retain counsel for him. Judge
Oxenham concluded that it was in J.S.M.’s best interests to
have a court-appointed defense attorney as well as a guardian ad
litem.

In response to Judge Oxenham’s decision, Robert and
J.S.M. filed a petition for a writ of mandamus in the circuit
court.[3] The petition requested, inter
alia, the court to compel Judge Oxenham to allow Robert to
select his son’s counsel. The circuit court held a hearing
on the matter during which J.S.M.’s guardian ad litem
stated that he had not asked J.S.M. whether he preferred to have
a court-appointed attorney or private counsel. However, the
guardian ad litem stated that J.S.M. did not
"express . . . to me an opposition" to his
court-appointed attorney and

"appeared to be pleased" with his current legal
representation. At the conclusion of the hearing, the court
stated that it "[was] going to treat the petition for
mandamus as a petition for writ of prohibition." The court
then granted the writ of prohibition. Judge Oxenham filed a
motion to reconsider, which the circuit court denied. Judge
Oxenham appeals.

II.

The law concerning writs of prohibition is well-established
and provides the framework for deciding this case. "A writ
of prohibition is an extraordinary remedy employed ‘to
redress the grievance growing out of an encroachment of
jurisdiction.’" Elliott v. Great Atlantic Management
Co., Inc.
, 236 Va. 334, 338, 374 S.E.2d 27, 29 (1988)
(quoting James v. Stokes, 77 Va. 225, 229 (1883)). In Grief
v. Kegley
, 115 Va. 552, 79 S.E. 1062 (1913), we stated the
well-settled principle that:

[T]he writ of prohibition does not lie to correct
error, but to prevent the exercise of the jurisdiction of
the court by the judge to whom it is directed, either
where he has no jurisdiction at all, or is exceeding his
jurisdiction. If the court or judge has jurisdiction to
enter any order in the proceeding sought to be
prohibited, the writ does not lie.

 

Id. at 557, 79 S.E. at 1064; see also Elliott,
236 Va. at 338, 374 S.E.2d at 29; In re Department
of Corrections
, 222 Va. 454, 461, 281 S.E.2d 857, 861 (1981);
County School Bd. of Tazewell County v. Snead, 198 Va.
100, 107, 92 S.E.2d 497, 503 (1956).

Jurisdiction is "‘the power to adjudicate a case
upon the merits and dispose of it as justice may
require.’" Id. at 104-05, 92 S.E.2d at 501
(quoting Southern Sand and Gravel Co., Inc. v. Massaponax Sand
and Gravel Corp.
, 145 Va. 317, 332, 133 S.E. 812, 816 (1926)
(Burks, J., concurring)); see also Black’s Law
Dictionary 853 (6th ed. 1990). Accordingly, a writ of
prohibition does not lie against Judge Oxenham if she had
jurisdiction to adjudicate the disposition of the petition
charging J.S.M. with assault and battery, and in doing so, had
authority to appoint counsel to represent him. We find that Judge
Oxenham acted within her jurisdiction and that the circuit court,
therefore, erred in issuing the writ of prohibition.

Under Code Sec.16.1-241(J), the juvenile and domestic
relations district court has exclusive original jurisdiction over
"[a]ll offenses in which one family or household member is
charged with an offense in which another family or household
member is the victim . . . ." The court also
has exclusive original jurisdiction regarding the disposition of
a child who is alleged to be delinquent.[4] Code
Sec.16.1-241(A)(1). In regard to the appointment of counsel
for a child charged with a delinquent act, Code
Sec.16.1-266(B) provides as follows:

Prior to the detention review hearing or the
adjudicatory or transfer hearing by the court of any case
involving a child who is alleged to be . . .
delinquent, such child and his or her parent, guardian,
legal custodian or other person standing in loco parentis
shall be informed by a judge, clerk or probation officer
of the child’s right to counsel . . . and
be given an opportunity to:

1. Obtain and employ counsel of the child’s own
choice . . . . [5]

Finally, subsection D of Code Sec.16.1-266 provides that
"[i]n all other cases which in the discretion of the court
require counsel or a guardian ad litem to represent the interests
of the child . . . , a discreet and competent
attorney-at-law may be appointed by the court."

As a judge of the juvenile and domestic relations district
court, Judge Oxenham clearly had jurisdiction under Code
Sec.16.1-241 to adjudicate the disposition of the petition
charging J.S.M. with assault and battery. In doing so, Judge
Oxenham also had authority under Code Sec.16.1-266 to appoint
counsel to represent J.S.M. Exercising the discretion granted her
in Code Sec.16.1-266, Judge Oxenham correctly concluded that
J.S.M.’s age as well as the open animosity between his
parents prevented J.S.M.

from choosing his own counsel. At that time, J.S.M.’s parents
were still embroiled in divorce and custody proceedings, and
Robert’s visitation rights had been temporarily suspended.
Furthermore, J.S.M.’s parents could not agree on an attorney
to represent their son. Given these ongoing conflicts, Judge
Oxenham determined that it was in J.S.M.’s best interests to be
represented by an attorney who was not involved in the legal
proceedings between his parents. Cf. Stanley v. Fairfax
Co. Dep’t of Soc. Services
, 10 Va. App. 596, 601, 395
S.E.2d 199, 202 (1990), aff’d, 242 Va. 60, 405 S.E.2d
621 (1991) (recognizing that rights of child are often separate
and distinct from those of other parties to litigation and are
best protected by independent counsel).

Nevertheless, Robert and J.S.M. argue that Judge Oxenham did
not follow the necessary procedural steps for appointing counsel
under Code Sec.16.1-266 and thus violated J.S.M.’s Sixth
Amendment right to counsel guaranteed by the United States
Constitution. They contend that Judge Oxenham should not have
imposed her choice of counsel on J.S.M. without first making an
actual finding, after notice and hearing, that a conflict exists
between J.S.M. and his father and that J.S.M. is incapable of
choosing his own attorney. In other words, they assert that Judge
Oxenham had to give J.S.M. and his father the opportunity to
obtain and employ counsel of J.S.M.’s own choice before she
could appoint an attorney for J.S.M. Thus, according to Robert
and J.S.M., Judge Oxenham lost whatever jurisdiction she
initially had by preempting J.S.M.’s right to select his
attorney.

We disagree with their argument and note that the cases upon
which Robert and J.S.M. rely are habeas corpus cases in which we
addressed the statutory requirement regarding the appointment of
a guardian ad litem for a child who appears in
court without representation by either a parent or an attorney. See
Pruitt v. Peyton, 209 Va. 532, 535, 165 S.E.2d 288, 290
(1969); Gogley v. Peyton, 208 Va. 679, 682, 160 S.E.2d
746, 748 (1968); Gregory v. Peyton, 208 Va. 157, 160, 156
S.E.2d 624, 625-26 (1967). In each of these cases, we held that
the juvenile court’s failure to appoint a guardian ad litem
for the child rendered the subsequent proceedings or convictions
void. Those cases, however, are not relevant to this appeal since
Judge Oxenham did not fail to appoint an attorney to represent
J.S.M. Further, if she omitted any procedural step required by
Code Sec.16.1-266(B) regarding the appointment of counsel for
a child charged with committing a delinquent act, such an
omission was merely a procedural error and did not result in a
loss of jurisdiction. A writ of prohibition does not lie to
correct errors. Grief, 115 Va. at 557, 79 S.E. at 1064.

For these reasons, we will reverse the judgment of the circuit
court and dismiss the writ of prohibition.

Reversed and dismissed.

 

FOOTNOTES:

[1] Full name of the minor deleted
by this Court.

[2] Olivia’s attorney later
wrote Judge Oxenham and stated that due to his involvement in the
pending divorce proceedings between Robert and Olivia, he could
not represent J.S.M.

[3] The petition for a writ of
mandamus was filed by Robert, individually, and by J.S.M.,
individually and by his next friend Robert.

[4] A "delinquent act"
means "an act designated a crime under the law of this
Commonwealth . . . ." Code Sec.16.1-228.

[5] Subsection B(2) of Code
Sec.16.1-266 provides that if a child is indigent, a
statement of indigence and a financial statement shall be filed,
and the court shall appoint an attorney to represent the child. A
third alternative is waiver of the right to be represented by an
attorney. Code Sec.16.1-266(B)(3).

 

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