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Protective order denial was final order for appeal

Where the circuit court overruled the juvenile and domestic court’s decision not to issue appellee a protective order, the JDR court’s decision was a final order for appeal purposes. As a result, appellant’s argument that the circuit court lacked jurisdiction to review the matter is not well-taken.

Overview

After an ex parte hearing, the JDR court granted appellee Gina Wilcoxson a preliminary family abuse protective order against appellant Tyrone Jacobs. After a full hearing, the JDR court concluded Wilcoxson did not prove her allegations and denied her petition.

She appealed to the circuit court, which determined she had proven her claims and granted a two-year protective order under Code § 16.1-279. Jacobs moved to vacate, arguing that the circuit court lacked jurisdiction over the appeal because the JDR court’s denial of the protective order was not a final order under Code § 16.1-296. The circuit court denied the motion and Jacobs appealed.

Interpreting the statute

“Code § 16.1-296(A) provides, ‘From any final order or judgment of the juvenile court affecting the rights or interests of any person coming within its jurisdiction, an appeal may be taken to the circuit court within 10 days from the entry of a final judgment, order or conviction and shall be heard de novo. … Protective orders issued pursuant to § 16.1-279.1 in cases of family abuse … are final orders from which an appeal may be taken.’

“Jacobs concedes that the denial of a protective order is a final judgment affecting the rights and interests of Wilcoxson and that it would fit within the first sentence of the statute if not for the language specifically referring to protective orders. He argues that the protective order language in the last sentence limits the scope of the first sentence, thus limiting an appeal in protective order cases to only those instances where a protective order is issued.

“We find, however, that it is more consistent with the language of Code § 16.1-296, and thus the legislative intent, to harmonize the statute by viewing the protective order language as expanding, rather than limiting, the scope of the statute.

“The first sentence of Code § 16.1-296 sets out the general rule that only final orders may be appealed. … But a protective order is not, strictly speaking, a final order that leaves nothing to be done in the cause. The protective order is an ongoing concern that remains under the jurisdiction of the court and, may, upon a motion and after a hearing, be extended, modified, or dissolved at any time. …

“The General Assembly, however, is free to depart from the general rule ‘and to permit appeals from orders that are not “final” under the definition above.’ … Thus, by including the protective order language, the General Assembly has departed from the general rule, expanded the scope of the statute, and permitted appeals from the issuance of a protective order that would not otherwise be appealable under Code § 16.1-296. …

“Jacobs’ interpretation of the statute would create an absurd situation where only the alleged wrongdoer could appeal if the protective order was issued, but the purported victim of domestic violence could not appeal if the protective order was denied. The purported victim would be left with no remedy but to wait for a new act of domestic violence. Aside from conflicting with principles of fairness, this construction contradicts the obvious purpose of the protective order statutes – to protect victims of domestic violence.”

Affirmed.

Jacobs v. Wilcoxson. Record No. 0906-19-2, Feb. 18, 2020. CAV (Atlee) from Richmond Cir. Ct. (Hairston). Peter F. Bowen for appellant, George B. Davis for appellee. VLW 020-7-031, 5 pp. Published.

VLW 020-7-031

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