The Court of Appeals holds that the circuit court erred in dismissing appellant’s case, as her petition for visitation relating to appellee’s two children should have been resolved on the merits during a trial that already had been scheduled, rather than summarily dismissed; the dismissal is reversed and the case remanded.
Appellant was entitled to a trial de novo in circuit court on the juvenile and domestic relations court’s denial of her petition for visitation with appellee’s two minor children. After appellant nonsuited the appeal in the circuit court, she timely refiled. While the case was pending in the circuit court appellee obtained a protective order pursuant to Va. Code § 19.2-152.10 in district court forbidding contact between appellant and the children. Appellant appealed the protective order to the circuit court, but resolved the appeal with a consent decree dated Aug. 29, 2015. The Aug. 28 order established no-contact restrictions to replace those in the protective order and specified in relevant part that the consent order shall be modified by a court order upon proper motion and hearing.
The circuit court trial on appellant’s petition for visitation was scheduled for Feb. 24, 2016, in Arlington County. On Feb. 5, 2016, appellee filed a motion to dismiss and for summary judgment. The same date, appellant filed a notice and motion requesting that the Aug. 28 order be vacated or modified at the Feb. 24 trial.
At the motions day hearing, the circuit court concluded the Aug. 28 order was valid and rendered it impossible for the court to give visitation to appellant. It dismissed the case. Appellant pointed the court to the specific modification language in the Aug. 28 order and the filed modification motion, but the court concluded that because the modification had not yet occurred, it would grant appellee’s motion to dismiss the case.
The circuit court’s decision to dismiss the case on the eve of trial on the basis that it was precluded from granting visitation during the Feb. 24 trial was erroneous. The circuit court certainly had authority to modify the order at the Feb. 24, trial, or at any time. By dismissing the case on Feb. 19, on the basis that modification had not yet occurred, the circuit court short-circuited the legal process and denied appellant her day in court to argue the merits of her case. We reverse and remand for trial on the merits.
Bonsack v. Gregory (Petty) No. 0415- 16-4, Oct. 25, 2016; Arlington County Cir. Ct. (DiMatteo) Keenan R. Goldsby for appellant; Morriah H. Horani for appellee. VLW 016-7-253(UP), 4 pp.