Renzo Torchiani v. Suzanne Senske

• Court: Court of Appeals of Virginia
• Decided: June 2, 2020
• Docket: 1581194
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, AtLee and Senior Judge Annunziata UNPUBLISHED

Argued by teleconference

RENZO TORCHIANI MEMORANDUM OPINION* BY v. Record No. 1581-19-4 JUDGE RICHARD Y. ATLEE, JR. JUNE 2, 2020 SUZANNE SENSKE

FROM THE CIRCUIT COURT OF STAFFORD COUNTY Victoria A.B. Willis, Judge

Mehagen D. McRae (Fayez Goriup McRae PLLC, on brief), for appellant.

No brief or argument for appellee.

Appellant Renzo Torchiani appeals the Circuit Court of Stafford County’s issuance of a

rule to show cause for his failure to pay court-ordered fees and costs to appellee Suzanne Senske.

The circuit court had entered three orders, each of which required Torchiani to pay Senske’s

legal fees accrued during the pendency of his appeal from the juvenile and domestic relations

district (“J&DR”) court to the circuit court. After the orders were entered, Torchiani withdrew

that appeal without making any payments to Senske. Torchiani argues that those circuit court

orders to pay attorneys’ fees became moot or void ab initio once he withdrew his appeal and the

twenty-one-day period under Rule 1:1 expired. We disagree and affirm.

I. BACKGROUND

“[W]e view the evidence in the light most favorable to the prevailing party, granting it the

benefit of any reasonable inferences.” Congdon v. Congdon, 40 Va. App. 255, 258 (2003).

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Following litigation before the J&DR court, Torchiani filed with the circuit court a

petition to modify child support and an appeal of a rule to show cause from the J&DR court.

During the pendency of the appeal, the circuit court held several hearings, during which it

ordered Torchiani to pay Senske’s legal fees incurred in the process of litigating his appeal to the

circuit court. Specifically, (1) a court order dated November 20, 2017, ordered him to pay legal

fees of $1,500 by December 20, 2017; (2) a court order dated December 20, 2018, ordered him

to pay legal fees of $1,125 by January 31, 2018; and (3) a court order dated January 16, 2018,

ordered him to pay legal fees of $175 by February 15, 2018.

Torchiani later moved to withdraw his appeal. On October 4, 2018, the circuit court

granted that motion, and it remanded the matter to the J&DR court. Spear v. Omary, 297 Va.

251, 253 (2019) (holding that under Code § 16.1-106.1(F), the case shall be remanded back to

the J&DR court by operation of law, unless the circuit court expressly orders the case to remain

in the circuit court). It is undisputed that Torchiani made no payments toward the collective

$2,800 in legal fees ordered by the circuit court.

On May 16, 2019, Senske filed in the circuit court a petition for issuance of a rule to

show cause for non-payment of the court-ordered attorneys’ fees, along with a motion to reopen

the matter in order for it to issue the rule to show cause. Torchiani moved to dismiss, asserting

that the circuit court lacked jurisdiction. He argued that the withdrawal of the appeal divested

the circuit court of any authority to adjudicate matters that had since been effectively remanded

to the J&DR court and that the orders to pay attorneys’ fees became moot or void ab initio once

he withdrew his appeal and the twenty-one-day period under Rule 1:1 expired.

The circuit court denied Torchiani’s motion to dismiss. It held that “if the court were to

follow [Torchiani’s] position, it would result in an injustice to the opposing party who incurred

fees during an appeal filed by the opposing party, secured court orders for payment of those fees, -2- and then is left without remedy.” It cited Code § 16.1-106.1(F) and the ends of justice in its

ruling. Torchiani appeals to this Court.

II. ANALYSIS

Because “[t]he facts in this case are not in dispute . . . the issue is one of pure statutory

interpretation, ‘a question of law . . . review[ed] de novo.’” Eley v. Commonwealth, 70 Va. App.

158, 162 (2019) (alterations but the first and second in original) (quoting Doulgerakis v.

Commonwealth, 61 Va. App. 417, 419 (2013)).

Torchiani argues that the circuit court orders became void upon expiration of the

twenty-one-day window after he withdrew his appeal because, under Code § 16.1-298(D), “[i]f

an appeal to the circuit court is withdrawn in accordance with § 16.1-106.1, the judgment, order,

or decree rendered by the juvenile court shall have the same legal effect as if no appeal had been

noted.”

Interpreting the language of Code § 16.1-298(D) de novo, the statute simply states that

any J&DR court judgments on child support were in full effect upon Torchiani’s withdrawal of

his appeal to the circuit court. See Robert & Bertha Robinson Family, LLC v. Allen, 295 Va.

130, 151 (2018) (“The effect of a withdrawal is to leave the [lower court]’s decision untouched if

the appeal is unperfected at the time a party seeks a withdrawal . . . .”). This language does not

render the circuit court orders regarding legal fees incurred by the non-appealing party void ab

initio and thus unenforceable as Torchiani argues. The statute he relies upon only speaks to the

legal effect of J&DR orders upon withdrawal of an appeal, which here include any orders on the

issue of child support and the J&DR court’s rule to show cause. It does not speak to, or have any

bearing on, the circuit court’s powers to enforce its own orders regarding conduct that occurred

before the circuit court. The legal fees Senske incurred responding to Torchiani’s appeal did not

-3- disappear when he withdrew that appeal, and thus Senske was entitled to seek enforcement of

those orders and be compensated for those costs.

Torchiani argues that it was incumbent on Senske to object to the withdrawal of the

appeal for those orders regarding fees to remain enforceable. He notes that Code § 16.1-106.1(F)

says that upon the withdrawal of an appeal, the non-appealing party may request that the circuit

court determine if they have a right to “additional relief in the circuit court which has accrued

since the appeal was noted . . . .” This language “[g]rant[s] the circuit court the authority to

consider post-appeal matters.” Allen, 295 Va. at 147 n.19. The statute quite simply does not

state what Torchiani alleges. In this case, the non-appealing party, Senske, did not need to make

such a request, as the circuit court had already ordered Torchiani to pay the $2,800 in legal fees

— the “additional relief” that Code § 16.1-106.1(F) contemplates was already granted.

III. CONCLUSION

For the foregoing reasons, the circuit court did not err in issuing a rule to show cause for

non-payment of court-ordered fees.

Affirmed.

-4-