Litigation Procedure and Law - § 8-1 (K) - § 8-2

(K)Administrative Process Act Appeals

2011-- Spurrier v. Va. Dept. of Soc. Srvc's, Va. Ct. of Appeals, Unpublished, No. 0772-11-1
On an appeal of a finding by the Department of Social Services that stepfather had committed sexual abuse, the circuit court did not err in refusing to allow stepfather to submit evidence that was beyond the scope of the record of the Department of Social Services’ agency-level hearing. On appeal from a decision of the Virginia Department of Social Services, the reviewing court will view the facts in the light most favorable to sustaining the agency’s action. Cases subject to the standard of review outlined in Va. Code §2.2-4027 cannot be considered a trial de novo since the factual issues on appeal are controlled solely by the agency record. The reviewing court is not free to take additional evidence, even at the request of one of the parties. The circuit court’s role in an appeal from an agency decision is equivalent to an appellate court’s role in an appeal from a trial court. In this sense, the General Assembly has provided that a circuit court acts as an appellate tribunal.

2010--Hobbs v. Virginia Dep’t of Social Services, Va. Ct. of Appeals, Unpublished, No. 0821-09-1
Judicial review of a founded disposition by child protective services of abuse or neglect is governed by the Administrative Process Act, codified at Va. Code §§ 2.2-4000 to 2.2-4033. The burden is on the appealing party to demonstrate error.

A party seeking relief from a founded disposition of abuse on grounds that the local department failed to comply with required procedure must demonstrate that the failure was not merely harmless error. If the party seeking relief satisfies that burden, the reviewing court shall suspend or set the case decision aside. Procedural violations that could have a significant impact on the ultimate decision so as to undermine the substantiality of the evidential support for the factual findings are not mere harmless error.

Trial court erred in holding that a Child Protective Services’ worker’s failure to record the first two interviews with an alleged child sex abuse victim, contrary to the mandate of Va. Administrative Code § 22 VAC 40-705-80(B)(1), was harmless error, where the hearing officer explicitly noted inconsistencies in what the CPS worker reported the child’s statements to have been in the first two interviews and in the statements made by the child in a third, recorded interview. The purpose of requiring that the interviews be recorded is to provide direct evidence of the child’s account of abuse rather than a secondhand report from the interviewer. If the child’s first statements differed significantly from the recorded interview, they could have had a significant impact on the hearing officer’s ultimate decision.

2010--Chabolla v. Dep't of Social Services, Va. Ct. of Appeals, Rec. No. 0293-09-1
While it is true that civil remedies and procedures contained in Title 8.01 of the Virginia Code may not apply in administrative agency proceedings, the Administrative Process Act grants an aggrieved party a right to direct review of a hearing officer's decision by an appropriate and timely court action against the agency in the manner provided by the Rules of Supreme Court of Virginia. Appeals from an agency decision pursuant to the Administrative Process Act necessarily implicate the Rules of Supreme Court of Virginia, even if they do not invoke the civil remedies and procedures addressed in Title 8.01 of the Virginia Code.

Unlike Rule 2A:4(a) of the Rules of Supreme Court of Virginia, Rule 2A:4(b) is not jurisdictional. Thus, the trial court did not err in allowing a party, pursuant to Rule 1:8, to amend his petition for appeal to include proper assignments of error and requests for relief after having timely filed the petition in accordance with Rule 2A:4(a).

On appeal of an agency decision, the sole determination as to factual issues is whether substantial evidence exists in the agency record to support the agency's decision. The reviewing court may reject the agency's findings of fact only if, considering the record as a whole, a reasonable mind necessarily would come to a different conclusion. In making this determination, the reviewing court shall take due account of the presumption of official regularity, the experience and specialized competence of the agency, and the purposes of the basic law under which the agency has acted. Chippenham & Johnston-Willis Hosps., Inc. v. Peterson, 36 Va. App. 469 (2001).

(L)       Remand

2015--Rubino v. Rubino, 64 Va. App. 256
The appellant did not waive a remand to the trial court by requesting only specific relief from the Court of Appeals without also requesting a remand in the alternative. Code of Virginia § 8.01-681 clearly provides a Virginia appellate court the power to reverse orders and remand matters to a lower court. The statute does not indicate that a remand to a lower court is a remedy that can be waived.

2013--Parsons v. Parsons, Va. Ct. of Appeals, Unpublished Opinion, Nos. 2184-12-4, 2352-12-4.
Under the “mandate rule,” on remand, the trial court cannot relitigate matters decided expressly or impliedly by the appellate court or relitigate matters addressed by the trial court, but not addressed by the appeal. Where the Court of Appeals held that the Husband waived issues of the sale of the house and payment of a credit line, the trial court was correct not to relitigate those issues on remand.

2012--David v. David, Va. Ct. of Appeals, Unpublished Opinion, No. 0653-12-2.
Litigants have a duty to present sufficient evidence at trial to enable the court to dispose of the case. In a divorce action, parties who fail to present evidence sufficient to allow the court to distribute property in accordance with Code of Virginia §20-107.3 should not be allowed to benefit from appellate review. An appellate court will not reverse and remand on issues of equitable distribution where parties have had an adequate opportunity to introduce evidence but have failed to do so.

2011--West v. West, Va. Ct. of Appeals, No. 0448-11-3
The “mandate rule” forecloses in the remand from an appellate court to a lower court the relitigation of matters decided expressly or impliedly by the appellate court and the relitigation of matters addressed by the trial court, but not addressed on appeal. Issues in controversy that were not disposed of in the original decree are beyond the scope of the mandate rule. The mandate rule does not apply to a modification of child support and spousal support, when the change of circumstances did not exist at the time of the order initially appealed, nor was the subject of the order appealed.

2005--Robinson v. Robinson, 46 Va. App. 652
Where an equitable distribution award is reversed on appeal and the provisions with regard to the marital property are to be considered on remand, the court must necessarily re-examine spousal support in the light of whatever new or different considerations flow from the additional proceedings.

2001--Holden v. Holden, 35 Va. App. 315
On remand from the Court of Appeals, a trial court is still required to value property using the most current and accurate information available. Where an asset subject to equitable distribution is retained by one of the parties for a period of time after valuation but before the actual distribution, and the asset significantly increases or decreases in value during that time through neither the efforts nor the fault of either party, neither party should disproportionately suffer the loss or benefit from the windfall.
Trial court erred when, on remand from the Court of Appeals, it altered its original distribution of marital property such that husband was disproportionately assigned a loss in the value of certain stock that had occurred while the equitable distribution award was on appeal. The trial court originally ordered that the stock be divided in kind. Pending appeal, the stock lost value due to market factors. On remand, the trial court refused to revalue the stock to account for the loss in value, and instead relied upon the value as of the time of the original trial when reapportioning the equitable distribution award. As a result, husband was forced to bear the entire loss of value.

2001--Hart v. Hart, 35 Va. App. 221
Trial court erred when, on remand from the Court of Appeals with instructions to determine the value added as a result of specific improvements made to a house by husband, the trial court heard and considered evidence of additional improvements to the house which were not addressed or otherwise presented at the original trial.

(M)       Mootness

2013--Canedo v. Canedo, Va. Ct. of Appeals, Unpublished Opinion, No. 0851-12-4.
Wife’s assignment of error regarding the effective date of a child support obligation is moot where Wife has already paid the entire amount of the arrearage.

2012--Wang v. Crumpacker, Va. Ct. of Appeals, Unpublished, No. 1904-11-4
Wife argued that the trial court erred in ratifying, affirming and incorporating a prenuptial agreement into a final decree of divorce while an appeal was pending. Her argument was moot because, prior to her appeal, the Court of Appeals affirmed the trial court’s ruling regarding the prenuptial agreement, and the Supreme Court denied Wife’s petition for appeal. Mootness applies when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.

2011-- Moore v. Moore, Va. Ct. of Appeals, Unpublished, No. 0117-10-4
Although the general rule is that the voluntary payment of a judgment deprives the payor of a right to appeal, payment of a monetary award based on a final decree of divorce, after the payor has noted objections and filed an appeal, does not constitute a “voluntary payment.”

2010--Briggman v. Commonwealth of Va. DSS, DCSE, Va. Ct. of Appeals, Rec. No. 1911-09-4
Mootness has two aspects: "when the issues presented are no longer live, or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486 (1969). Father's appeal of a civil contempt finding entered by the trial court for his failure to pay child support was moot where, by the time the appeal was heard, the child had long since been emancipated and father had purged the contempt by satisfying the arrearage amount. Since father was not entitled to restitution for child support previously paid, there were no live issues remaining for the court to decide.

(N) Appellate Jurisdiction

2018---Friedman v. Smith, 65 Va. App. 529 (2018)
The issue here pertains to the Court of Appeals’ jurisdiction to hear an appeal from a final order of divorce in which matters other than the divorce, including spousal support and equitable distribution, have been bifurcated from the divorce action and which remain pending on the circuit court’s docket. Code of Virginia § 17.1-405 provides the Court of Appeals with jurisdiction over “any final judgment, order, or decree of a circuit court involving divorce; spousal or child support; [and] any interlocutory decree ... entered in [such] cases ... adjudicating the principles of a cause.” Code § 20-107.3(A) provides that, “upon decreeing the dissolution of a marriage, and also upon decreeing a divorce from the bond of matrimony, ... the court, on the motion of either party, may retain jurisdiction in the final decree of divorce to adjudicate the remedy provided by this section when the court determines that such action is clearly necessary ....” A final order or decree for the purposes of Rule 1:1, however, is one which disposes of the whole subject, gives all the relief contemplated and leaves nothing to be done in the cause with the exception of the ministerial execution of the order. Thus, the issue of the Court of Appeals’ jurisdiction turns on whether the General Assembly intended in Code § 20-107.3(A) to provide a circuit court with the discretion to effectively finalize the issue of divorce from the bond of matrimony independent of other ancillary issues, such as equitable distribution and support, and adjudicate them separately—effectively transforming one case into two.

The use of the phrase “final decree of divorce” in Code § 17.1-405 to reference a circuit court order reserving jurisdiction to adjudicate equitable matters at some future date, clearly suggests that, following bifurcation of the divorce from the remaining matters, the circuit court loses jurisdiction over the divorce decree twenty-one days from the entry of the order. In such a case, the statute clearly permits an appeal to the Court of Appeals from such a final order of divorce. Accordingly, a court order properly bifurcating a divorce proceeding pursuant to Code § 20-107.3(A), which grants a divorce from the bond of matrimony but explicitly reserves other matters for future adjudication, is a final order with respect to the divorce issue, thereby falling within the Court of Appeals’ appellate jurisdiction twenty-one days after its entry. However, Code § 20-107.3(A) also contemplates that following such bifurcation, the circuit court retains jurisdiction over all other remaining matters explicitly reserved for future adjudication.

2018---Monds v. Monds, Va. Ct. Appeals, No. 1458-17-1
The Court of Appeals had jurisdiction to hear Husband’s appeal from the trial court’s order refusing to find Husband in contempt of the final decree of divorce, but also ordering Husband to pay Wife $10,000 pursuant to the parties’ separation agreement. In Newton v. Jones, 66 Va. App. 20 (2016), the Court of Appeals has previously held that Code of Virginia §§ 19.2-318 and 17.1-405 do not provide the Court with appellate jurisdiction to review cases when a circuit court refuses to find a party in contempt and dismisses a rule to show cause. Here, however, Husband did not ask the Court of Appeals to review the trial court’s decision not to hold him in contempt. Rather, Husband assigned error to the trial court’s order that he pay Wife $10,000 based on its authority to interpret and enforce the parties’ separation agreement as incorporated into final divorce decree. Therefore, the rule articulated in Newton does not apply to this case.

2016---Newton v. Jones, 66 Va. App. 20 (2016)
Neither the Court of Appeals nor the Supreme Court of Virginia have jurisdiction over an appeal of a circuit court’s refusal to find a party in contempt.

2015 -- Bozsik v. Bozsik, Va. Ct. of Appeals, Unpublished, No. 1468-14-1
Although the Court of Appeals generally lacks subject matter jurisdiction to hear an appeal of a cause of action arising under Title 8.01 of the Code of Virginia, the Court had jurisdiction to hear Wife’s appeal from the trial court’s order denying her complaint for possession of property under Code § 8.01-131 because her alleged right to possess the property stemmed from the parties’ premarital settlement agreement, which the trial court incorporated into its final decree of divorce. Therefore, Wife’s issues on appeal arose out of the enforcement of a provision of the divorce decree, over which the Court of Appeals had jurisdiction.

2012-- Russell v. Russell, Va. Ct. of Appeals, Unpublished, No. 2599-11-1
Though the circuit court lost active jurisdiction over custody matters incident to the parties’ divorce when husband appealed a custody order to the Court of Appeals, the circuit court did not lose subject matter jurisdiction over custody pending husband’s appeal. Thus, additional orders entered by the circuit court regarding custody while husband’s appeal was pending were not void ab initio, but, at best, only voidable.

2012--Goodwin v. Goodwin, Va. Ct. of Appeals, Unpublished, No. 1413-11-2
The trial court did not err in correcting a clerical mistake in its final order subsequent to wife’s filing notice of her appeal, but prior to the record being filed in the office of the Clerk of the Court of Appeals. Ordinarily, when a party files a notice of appeal, that notice effectively transfers jurisdiction from the lower court to the appellate court. Pursuant to Va. Code §8.01-428(B), any clerical mistakes in the trial court’s order may be corrected by the trial court on its own initiative or on motion of the parties prior to the time at which the appeal is pending. Once the appeal is docketed however, such mistakes may only be corrected with leave of the appellate court. However, for appeals of right, Rule 5A:16 specifies that appeals are considered mature for purposes of further proceedings from the date the record is filed in the office of the Clerk of the Court of Appeals. Thus, an appeal of right is considered “docketed” when the record is so filed.

2010--McCoy v. McCoy, 55 Va. App. 524
When a party files a notice of appeal, that notice effectively transfers jurisdiction from the lower court to the appellate court. When an appellate court acquires jurisdiction over the parties involved in litigation and the subject matter of their controversy, the jurisdiction of the trial court from which the appeal was taken ends.
Trial court erred in vacating an order of contempt after a notice of appeal of that order had been filed with the Court of Appeals.

2009--Miller v. Jenkins, Va. 54 Va. App 282 (June 23, 2009)
Court of Appeals jurisdiction over subject areas enumerated by Va. Code §17.1-405 is not limited to actions arising out of Title 16.1 or Title 20. Despite the fact that the suit was brought under the Declaratory Judgment Act, the underlying cause was a custody dispute, and thus, within the jurisdiction of the Court of Appeals on appeal from the trial court.

1994--In Re: Jessica Margaret O’Neil , 18 Va. App. 674
The Court of Appeals has initial appellate jurisdiction in matters involving the appointment or qualification of a guardian for a minor child.

(O) Withdrawal/Nonsuit of Appeal

2015--Barrett v. Minor, Va. Court of Appeals, Unpublished No. 0173-14-3
A timely nonsuit of an appeal from a juvenile court ruling does not then deprive the circuit court of jurisdiction to hear the appeal. Provided the case is timely re-filed pursuant to Code of Virginia § 8.01-380, the circuit court’s jurisdiction remains intact.
The circuit court correctly found that it did not have jurisdiction to hear Husband’s refiled case after he nonsuited his appeals of his custody and visitation cases and withdrew his appeals of Wife’s visitation cases. Although a circuit court does not lose appellate jurisdiction over an appeal of right taken from a lower court simply by granting a nonsuit, Husband’s withdrawal of his appeals of Wife’s cases meant that the order from the juvenile and domestic relations district court became final and binding on the parties and superseded the order that the refiled nonsuits sought to modify.

1999--Parish v. Spaulding, 257 Va. 357
Trial court did not err in refusing to permit father to withdraw his appeal of a juvenile court order concerning child support, where the parties together had previously brought nine different cases before the trial court over three years, fragmenting the issues to such an extent that a consolidation and resolution on the merits of all remaining issues was appropriate.

(P) Appeals to Circuit Court

2015--Barrett v. Minor, Va. Court of Appeals, Unpublished No. 0173-14-3
The circuit court correctly dismissed Husband’s appeals based on alleged violations of his constitutional rights in the juvenile and domestic relations district court. Even if the juvenile court had committed all of the constitutional errors Husband alleged, Husband was not entitled to relief on appeal to the Virginia Court of Appeals. Because the circuit court conducts a trial de novo on an appeal from the juvenile court, the decision from the juvenile court is actually vacated and as if it had never occurred.

2014--Gregory v. Martin, Va. Ct. of Appeals, No. 0431-14-3
The circuit court erred by denying Mother’s motion for visitation with the child and granting the paternal aunt’s petition regarding adoption without hearing all the evidence. Despite the lack of evidence, the circuit court concluded that Mother had no recent contact with the Child and had been incarcerated too long. Consequently, the circuit court erred by failing to conduct a de novo trial.

2013--Burch v. Burch, Va. Ct. of Appeals, Unpublished, No. 1269-12-4
The statutory right to appeal a matter from juvenile court to the circuit court pursuant to Virginia Code § 16.1-296(A) is forfeited if the appellant misses the ten-day deadline for filing notice of the appeal. The failure to file that notice is a jurisdictional defect, leaving the circuit court without jurisdiction to hear the appeal.

2005--Albert v. Ramirez, Va. Ct. of Appeals, Va. App. 799.
Once a party files a notice of appeal in the juvenile and domestic relations court, jurisdiction is effectively transferred from the juvenile court to the circuit court and thereby places the named parties within the jurisdiction of the circuit court. Rule 8:20, which governs the procedure for appealing from a judgment of the juvenile court, does not require the appellee to serve the appellant with process or of notice of the appeal.

1986--Box v. Talley, 1 Va. App. 289
The circuit court erred in perceiving its role as a court of review regarding Mother’s appeal from the juvenile court proceeding below, initiated by Father. Code of Virginia § 16.1-296 provides that appeals taken from the juvenile court shall be heard de novo in the appellate court. Thus, the burden of proof should have been placed upon Father in the trial court, as Father remained the party seeking to modify a previous child custody order. However, because the circuit court’s final conclusion was favorable to Mother, no prejudice resulted, and the trial court’s error was thus harmless.

1985--Hurst v. Ballard, 230 Va. 365
The provisions of Va. Code §16.1-107 are mandatory, not directory. Unless the writ tax is paid to the district court clerk within the prescribed time, the district court has no authority to transmit the case to the circuit court, and the circuit court does not acquire appellate jurisdiction. Moreover, the curative provisions of Va. Code §16.1-114 cannot be used to correct jurisdictional defects, such as a failure to perfect an appeal.

(Q) Grounds of Decision

2013--Burch v. City of Alexandria, Department of Community Human Services, Va. Ct. of Appeals, Unpublished Opinion, No. 1269-12-4
An appellate court decides cases on the best and narrowest ground available. Where a threshold issue, such as jurisdiction, determines the proper outcome of an appeal, the appellate court need not address additional arguments of an appellant.

(R) Stare Decisis

2015--Everett v. Carome, 65 Va. App. 177
The Court of Appeals is bound by the decisions of the Supreme Court of Virginia and does not have authority to overrule those decisions. If a litigant wishes to argue that the Supreme Court wrongly decided a case, he must do so in the Supreme Court.

2013--Wright v.Wright, Va. Ct. of Appeals, No. 0957-12-2

Under the interpanel accord doctrine, the decision of one panel of the Court of Appeals results in stare decisis, and only the Court of Appeals sitting en banc or the Virginia Supreme Court has the authority to overrule the decision.

§ 8-2. Appearance

2013--Forest v. Forest, Va. Ct. of Appeals, Unpublished, No. 0836-12-4
An appearance for any other purpose than questioning the jurisdiction of the court is general and not special, even if accompanied by a claim that the appearance is only special.


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