Commonwealth v. Neal

58 Va. Cir. 205, 2002 Va. Cir. LEXIS 142
CourtVirginia Circuit Court
DecidedFebruary 13, 2002
DocketCase Nos. HQ-1327-A and HQ-1336-A
StatusPublished

This text of 58 Va. Cir. 205 (Commonwealth v. Neal) is published on Counsel Stack Legal Research, covering Virginia Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Neal, 58 Va. Cir. 205, 2002 Va. Cir. LEXIS 142 (Va. Super. Ct. 2002).

Opinion

By Judge Randall G. Johnson

These are two appeals from the Juvenile and Domestic Relations District Court of the City of Richmond. At issue is whether the holding of Mahoney v. Mahoney, 34 Va. App. 63, 537 S.E.2d 626 (2000), requires dismissal of the appeals because of the appellant’s failure to post appeal bonds. The court holds that it does not.

It is difficult to determine the precise history of these cases from the records before this court. What can be determined is that the Division of Child Support Enforcement (DCSE), acting on behalf of two women with children by Charles Lee Neal, had show cause summonses issued against Neal for his failure to pay court-ordered child support. On May 22, 2001, thejuvenile court found Neal in contempt in both cases. The disposition portions of the preprinted summonses show that Neal was sentenced to jail in each case until he paid $500 or until the expiration of six months, whichever occurred first. The written dispositions also set the amount of arrears in each case. In what is now Case No. HQ-1327-A, thejuvenile court set arrears at $10,002. In what is now Case No. HQ-1336-A, arrears were set at $4,810. No appeal bond was set on May 22 in either case. Neal, by counsel, noted his appeal in each case on May 23.

On June 20,2001, apparently at the request of Neal’s counsel, thejuvenile judge added to the previously entered disposition on the summons form in each case an appeal bond equal to the amount of arrears in that case, but with [206]*206the proviso that “[i]f not contesting amount of arrears, no bond required.” Counsel for DCSE was not given notice of the hearing or meeting at which the June 20 additions were made. It is now the position of DCSE, relying on Mahoney, that Neal’s failure to post appeal bonds is fatal to the appeals. The court disagrees.

Before discussing Mahoney, the court notes that it agrees with DCSE that the j uvenile court’s attempt to set appeal bonds on June 20,2001, is a nullity. Rule 1:1 of the Rules of the Supreme Court of Virginia provides that final orders remain under the control of a court for twenty-one days and can be modified, vacated, or suspended during that period only. The final orders in these cases were entered on May 22, 2001. They were not subject to modification after June 12.

The court also recognizes that, if Neal were required by statute to post appeal bonds, the juvenile court’s failure to set such bonds does not help him. In Commonwealth v. Walker, 253 Va. 319, 485 S.E.2d 134 (1997), which involved the same statutory provision that is at issue now, the Court of Appeals had held that the juvenile court’s failure to require a bond excused the appellant from posting one. The Supreme Court disagreed:

[W]e 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.

253 Va. at 322.

Accordingly, the court holds that no appeal bonds were set by the juvenile • court. The court further holds that, if Neal were required to post appeal bonds in order for these appeals to proceed, the juvenile court’s failure to set such bonds would not excuse his failure to meet that requirement. Still, the court holds that the appeals can proceed.

The statutory provision at issue in Mahoney and in these appeals is Va. Code § 16.1-296(H). The relevant portion of that statute is as follows:

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 or suspending payment of support during pendency of an appeal. In cases involving support, no appeal shall be allowed until the party [207]*207applying for the same or someone for him gives 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. Upon appeal from a conviction for failure to support or from a finding of civil or criminal contempt involving a failure to support, the juvenile and domestic relations district court may require the party applying for the appeal or someone for him to give bond, with or without surety, to insure his appearance and may also require bond in an amount and with sufficient surety to secure the payment of prospective support accruing during the pendency of the appeal. 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.

Citing Mahoney, DCSE argues that the second sentence of the statute, “in cases involving support, no appeal shall be allowed until the party applying for the same or someone for him gives bond,” requires the posting of a bond in all appeals from juvenile court in which support arrears have been set, even appeals that do not challenge the arrears. DCSE gives too broad a reading to Mahoney.

In Mahoney, a father appealed a decision of a juvenile court which found him in contempt for failing to comply with court-ordered support, both child and spousal, as well as medical bills and attorney’s fees. The court entered judgment against the father in the amount of $151,902.52, the amount of arrears due to the mother. On appeal to the circuit court, the father characterized the appeal as one challenging the “jurisdiction of the Court [to] enter any orders and the validity of all orders entered in this case based on fraud.” 34 Va. App. at 65. He specifically noted his intention not to appeal the amounts of support found to be due and owing. Id. An appeal bond was set at $165,888.62. When the father failed to post the bond, the circuit court dismissed the appeal. The Court of Appeals affirmed.

In making its decision, the Court of Appeals quoted the portion of Va. Code § 16.1-296(H) set out above, emphasizing the second sentence. It then noted the father’s argument that since he had excluded from his notice of appeal the juvenile court’s establishment of a support arrearage and its finding of contempt, he was not required to post an appeal bond under the statute. 34 Va. App. at 66. The Court then said:

[208]*208Mahoney’s challenge to the validity of “all orders entered” by the juvenile court, and to the authority of the court to enter any such orders, necessarily and logically implicates a challenge to the subject of the orders entered by the juvenile court. In this case, the order Mahoney appealed from the juvenile court to the circuit court established a support arrearage he owed to his former wife. Thus, Mahoney’s appeal from the juvenile court’s order was necessarily subject to the jurisdictional requirement of Code § 16.1-296(H), which requires an appeal bond “for that portion of any order establishing a support arrearage.”

34 Va. App. at 66.

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Cite This Page — Counsel Stack

Bluebook (online)
58 Va. Cir. 205, 2002 Va. Cir. LEXIS 142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-neal-vacc-2002.