COA properly dismissed appeal petition by nonparty

Where petitioner was not a party to an adoption proceeding, the Court of Appeals correctly granted the adoptive father’s motion to dismiss her petition to appeal the adoption order.

Background

Petitioner Bonanno is the mother of Elizabeth Quinn, who married James Quinn II in 2013. Elizabeth had a daughter from a previous relationship with Graham. In a 2014 proceeding, Bonanno and Elizabeth were awarded joint legal custody of the child. Elizabeth was awarded primary custody. Bonanno was awarded visitation.

Elizabeth died in 2018. James petitioned for adoption. James argued that Graham’s consent was not required “because of lack of visitation or contact, which is not disputed in this case.” James also asserted that Bonanno’s consent was not required because, as a grandparent, she lacked parental rights.

Following an investigation under Code § 63.2-1208, a social worker advised the court of unsuccessful attempts by phone and mail in March 2019 to contact Bonanno. The social worker also advised that the court could issue an adoption order “without an interlocutory order and probationary period under Code § 63.2-1210.”

The social worker advised the court on April 12 that she spoke with Bonanno by phone on April 10. Bonanno denied knowing about James’ adoption petition and denied consent. The court entered a final adoption order on April 30. James emailed Bonanno a copy of the order on May 21 after 4 p.m.

Bonanno filed a notice of appeal on May 30. She accused James of concealing the adoption and noted that she retained counsel after receiving his email containing the adoption order. She argued the order was void due to a fraud on the court and that she was due notice as a legal custodian of the child.

In the alternative, she argued that the court retained jurisdiction to change the order within six months under Code § 63.2-1216. She claimed the adoption was not in the child’s best interest and filed a motion to stay the adoption order.

In July, Bonanno filed another motion, arguing the order was void because James did not follow procedural requirements for a step-parent adoption.

She filed an appeal petition in the Court of Appeals. She sought a circuit court hearing on the post-adoption motions she filed.

After a Sept. 20 hearing, the circuit court issued a letter opinion “stating that while a circuit court may consider whether an earlier order is void ab initio after the 21-day period provided by Rule 1:1 has elapsed, in this case Dr. Bonanno’s appeal to the Court of Appeals divested the circuit court of jurisdiction in the matter.”

James filed a motion to dismiss in the Court of Appeals. He noted “that Dr. Bonanno had not filed a motion to intervene in the adoption proceeding below. He asserted that she had actual and constructive notice as a result of the Department of Social Services’ attempts to contact her, and argued that as a non-party she had no standing to appeal.”

The Court of Appeals granted the dismissal motion. Bonanno’s failure to intervene or file an appearance before the final order was entered meant that she was not a party to the adoption proceeding and thus lacked standing to appeal.

Standing

“Code § 17.1-405 provides that [a]ny aggrieved party may appeal to the Court of Appeals from an adoption order. (Emphasis added.) The dispositive issue is the meaning of the word party.

“The first step in addressing that issue is to note that party is not merely a synonym of person. … [T]he General Assembly knows the difference between persons and parties. When it has shown that it knows and intends a difference between two terms by using them in different ways, … we presume that it chose with care the words it used when it enacted the statute we are construing. …

“The conclusion that the term ‘aggrieved party’ in Code § 17.1-405 means that only a ‘party’ may appeal to the Court of Appeals is only the first step in our analysis. The next step is determining what kind of ‘party’ the General Assembly meant. … Precedent informs us that the General Assembly did not intend the word ‘party’ in Code § 17.1-405 to include those who might, should, or must be joined as parties, but rather to include only those who actually have been so joined. …

“We therefore hold that the term ‘aggrieved party’ in Code § 17.1-405 (emphasis added) confers standing to bring an appeal to the Court of Appeals only on those who were litigants joined in the proceeding from which the judgment appealed from was taken. …

“Accordingly, the Court of Appeals correctly granted James’ motion to dismiss Dr. Bonanno’s appeals in that court because she was not a party to the proceeding from which she sought to appeal. She therefore had no standing to invoke the jurisdiction of that court. …

“[A]lthough the Court of Appeals lacked jurisdiction to hear Dr. Bonanno’s petition for appeal in that court, we do have jurisdiction under Code § 17.1-411 over her petition for appeal here because she was a party in the Court of Appeals and is aggrieved by its ruling against her.”

‘Barnes’ language disapproved

“Dr. Bonanno also argues that the adoption order is void ab initio for several reasons. She quotes our opinion in Virginian-Pilot Media Companies, LLC v. Dow Jones & Co., Inc., 280 Va. 464, 469-70 (2010), that such orders ‘are absolute nullities, and may be impeached directly or collaterally by all persons, anywhere, at any time, or in any manner; and may be declared void by every court in which they are called in question. Barnes[v. American Fertilizer Co., 144 Va. 692, 705 (1925)].’”

The language in Barnes “is a rhetorical flourish that does not accurately state the law, now or at the time Barnes was decided. … Consequently, we strongly discourage litigants from invoking that language in future proceedings.”

Affirmed and remanded for a determination of James’s appellant attorney’s fees.

Bonanno v. Quinn II, Record No. 200963 (Mims) May 27, 2021, CAV. Colleen M. Quinn for appellant. Laura C. Dove for appellee. VLW 021-6-034, 16 pp.