Litigation Procedure and Law

§ 8-1. Appeal and Error
(A) Appealability
(B) Bond
(C) En Banc
(D) Error / Standard of Review
(1) Abuse of Discretion
(2) Insufficient Evidence/Contrary to Evidence
(3) Error of Law/Incorrect Standard
(4) Harmless Error
(5) Invited Error
(6) Proof of Harm
(7) Burden
(E) Law of the Case
(F) Notice
(G) Record
(H) Timely Filing
(I) Dismissal/Waiver
(J) Preservation of Objections (Rule5A:18)
(K) Administrative Process Act Appeals
(L) Remand
(M) Mootness
(N) Appellate Jurisdiction
(O) Withdrawal/Nonsuit of Appeal
(P) Appeals to Circuit Court
(Q) Grounds of Decision
(R) Stare Decisis
§ 8-2. Appearance
§ 8-3. Attorney’s Fees
(A) Juvenile Court
(B) Circuit Court
(C) Court of Appeals
§ 8-4. Bifurcation
§ 8-5. Commissioner in Chancery
§ 8-6. Common Law
§ 8-7. Conflicts of Law
§ 8-8. Contempt/Enforcement
§ 8-9. Costs
§ 8-10. Courts, Generally
(A) Juvenile Court
(B) Circuit Court
(C) Court of Appeals
§ 8-11. Equity
(A) Generally
(B) Laches
(C) Declaratory Judgment
(D) Injunctions
(E) Unclean Hands
(F) Fugitive Disentitlement Doctrine
(G) Accounting
(H) Constructive Trusts
§ 8-12. Estoppel
§ 8-13. Guardian ad Litem
§ 8-14. Jurisdiction
(A) Personal/Service of Process
(B) Subject Matter
(C) Transfer
(D) Pending Appeal
§ 8-15. Orders/Judgments
(A) Default
(B) Full Faith and Credit
(C) Mistakes and Omissions
(D) Prior Orders
(E) Re-open Case
(F) Finality of Judgments (Rule 1:1)
(G) Endorsement/Notice of Presentation
(H) Void/Voidable
(I) Consent Orders
(J) Written v. Oral
(K) Declaratory Judgments
(L) Interest on Judgments
(M) Dismissal
(N) Docketing
(O) Protective Order
(P) Bill of Review
§ 8-16. Parties
(A) Death
(B) Necessary/Indispensible Party
(C) Intervening Parties
§ 8-17. Pleadings
(A) Amendment
(B) Answer
(C) Complaints, Cross-Complaints, Counterclaims
(D) Demurrers
(E) Inconsistent Positions
(F) Sufficiency
(G) Void
(H) Sanctions
(I) Pleas in Bar
§ 8-18. Pretrial
(A) Discovery
(1) Depositions
(2) Interrogatories, Requests for Production, Requests for Admission
(3) Motion to Compel
(4) Sanctions
(5) Expert Disclosures
(6) Rule 4:10 Examination
(B) Scheduling Orders
§ 8-19. Res Judicata
§ 8-20. Settlement
§ 8-21. Soldiers and Sailors Civil Relief Act
§ 8-22. Trial
(A) Closing Argument
(B) Continuance
(C) Juries
(D) Motion to Strike
(E) Non-Suit
(F) Opening Statements
(G) Stipulations
(H) Witness Examination
(I) Motion to Rehear, Reconsider, Re-open Case
(J) Due Process
(K) Waiver
§ 8-23. Venue
§ 8-24. Sanctions
§ 8-25. Sealing/Sequestering Court Record
§ 8-26. Pro Se representation
§ 8-27. Releases
§ 8-28. Statutory Interpretation/Construction
§ 8-29. Recusal of Judge
§ 8-30 Disqualification of Counsel

Chapter 8

Litigation Procedure and Law

§ 8-1. Appeal and Error

(A) Appealability

2015---Bajgain v. Bajgain, 64 Va. App. 439
To be appealable, an interlocutory order must decide the “chief objects of the suit,” which, in divorce matters, the chief objects of the suit typically involve divorce grounds, equitable distribution, spousal support, child custody and child support.

2015 --- Bozsik v. Bozsik, Va. Ct. of Appeals, Unpublished, No. 1468-14-1
Wife was not barred from seeking relief regarding her right to possess the marital residence by virtue of her having failed to appeal from a divorce decree which did not adjudicate the right. The divorce decree specifically deferred a determination regarding the property until further litigation contemplated by the parties. Accordingly, the divorce decree was not a “final order” disposing of the whole subject of the divorce suit, and thus, wasn’t appealable.

2014--- Murray v. Sensabaugh, Va. Ct. of Appeals, No. 2100-12-2
The Virginia Court of Appeals lacked jurisdiction to entertain Mother’s appeal of the trial court’s “Order Regarding Adoption” because the order was not a final appealable order. The order was not final and appealable because it referred the case to DSS and ordered DSS to conduct an investigation, prepare a report, and file the report with the trial court within 60 days of the entry of the order. Thus, the order did not dispose of the entire matter.

2012--- Blevins v. Prince William Dep’t Soc. Services, Va. Ct. of Appeals, No. 2276-11-4
Although a dispositional order in an abuse/neglect proceeding is not a final order in the conventional sense of the term, i.e. one that disposes of the whole subject and leaves nothing to be done, such orders are nonetheless “final” for purposes of appeal, pursuant to Virginia Code §§ 16.1-296(D) and 16.1-296(A).

2011--- Brown v. Josey, Va. Ct. of Appeals, Unpublished, No. 1711-10-2
Where the trial court's order sustained a demurrer to an initial complaint for relief without leave to amend, but failed to mention any disposition of a juvenile court appeal that had been consolidated for purposes of trial with the initial complaint, the trial court's order was not final for purposes of appeal, as it did not dispose of the whole subject of the suit then pending before the court.

2010--- Gianaris v. Gianaris, Va. Ct. of Appeals, Unpublished, No. 2379-09-4
Jurisdiction over wife’s appeal of a contract action properly lied in the Court of Appeals rather than the Supreme Court, pursuant to Va. Code § 17.1-405, because the contract she sought to have enforced was a property settlement agreement entered into by the parties incident to their divorce. Jurisdiction over an appeal from a final judgment must be based on an assessment of the “underlying cause.” (Citing Bullis v. Bullis, 22 Va. App. 24 (1996)).

2010--- Stephenson v. Musgrave, Va. Ct. of Appeals, Unpublished, No. 1903-09-3
Voluntary payment of a judgment deprives the payor of the right to appeal the judgment. On the other hand, where a party pays pursuant to an execution on a judgment or the filing of a suggestion in garnishment, he has made an involuntary payment and has not lost his right of appeal. (Citing Carlucci v. Duck’s Real Estate, Inc., 220 Va. 164 (1979)).

Husband’s voluntary payment of an equitable distribution and attorney’s fee award prior to the date on which the circuit court instructed him that, if he hadn’t yet paid, it would convert the award into a judgment subject to the accrual of interest, barred husband’s appeal of those awards.

2010--- Sharman v. Gillepsie and Hakes, Va. Ct. of Appeals, Unpublished, No. 0140-09-2
A nonsuit order is not a final judgment for appeal purposes because the effect of a nonsuit is to put an end to the pending suit without precluding another suit for the same cause of action. However, an exception to the general rule exists if a “dispute exists whether the trial court properly granted the motion for nonsuit.”

2009--- Kotara v. Kotara, Va. Ct. of Appeals, Unpublished, No. 0290-09-4
The Court of Appeals did not have jurisdiction over husband's appeal where husband moved the trial court to dismiss a case that he had not technically filed. After entry of a final order of divorce in Virginia, both parties moved to Texas, where husband subsequently filed in Texas court for a reduction in spousal support. The Texas court refused to make a determination as to spousal support in light of Virginia's exclusive and continuing jurisdiction over the award pursuant to the Uniform Interstate Family Support Act. Husband then moved the Virginia court to "dismiss issues of spousal support from the court's jurisdiction" without first petitioning the Virginia court to reopen the divorce case, or petitioning the Virginia court to modify support. Thus, the Virginia court's denial of husband's motion to dismiss spousal support from its jurisdiction was not a final order, as there was no live controversy before the court, nor an appealable interlocutory order, as there was no cause before the court for which the principles could be adjudicated.

2009--- Prashad v. Copeland and Spivey, 55 Va. App 247
An order by the juvenile court registering custody orders of another state for purposes of enforcement or modification under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) constitutes a final order that can be appealed, notwithstanding the existence of a petition for modification which has not yet been decided by the court. Registration and enforcement proceedings are distinct and independent from modification proceedings, despite the fact that the two may be filed simultaneously with one another.

2009--- Chaplain v. Chaplain,54 Va. App. 762
Va. Code §17.1-405(4) establishes the parameters of the Court’s appellate authority to review an interlocutory order and limits that authority to reviewing “any interlocutory decree or order entered in any of the cases listed in this section (i) granting, dissolving, or denying an injunction or (ii) adjudicating the principles of a cause.” For an interlocutory decree to adjudicate the principles of a cause, the decree “must determine that the rules or methods by which the rights of the parties are to be finally worked out have been so far determined that it is only necessary to apply those rules or methods to the facts of the case in order to ascertain the relative rights of the parties, with regard to the subject matter of the suit.” In order to adjudicate the principles of a cause, a decree must “decide an issue that would of necessity affect the final order in the case.”

Where the evidence of the divorce is uncontested, and the only issue before the trial court is whether the parties’ property rights upon divorce are governed by their pre-marital agreement, an order determining whether the agreement is valid and enforceable determines “the rules or methods by which the rights of the parties are to be finally worked out,” and thus, is an appealable interlocutory order.

2009--- Biernot v. Biernot, Va. Ct. of Appeals, Unpublished, No. 0331-08-1
Where an order is entered for less than a party claims, the mere receiving payment of the sum so ordered does not estop the party from appealing the order as to the sums not allowed. (Footnote 1) (citing Walter v. Whitacre, 113 Va. 150 (1912)).

2008--- Alexander v. Flowers, 51 Va. App. 404
A trial court’s decision expressly reserving ruling on a party’s request for attorney’s fees in an order adjudicating the merits of the claim upon which the request for attorney’s fees was based is not a final order for purposes of appeal, (citing Mina v. Mina, 45 Va. App. 215 (2005)). Here, trial court expressly reserved ruling on father’s request for attorney’s fees, and both parties clearly anticipated the necessity of returning to the trial court to litigate that issue. The Order therefore “failed to dispose of the whole subject” of the case, and was thus not a “final order” for purposes of appeal.

2006--- Lewis v. Lewis, 271 Va. 520
Interlocutory decree dismissing a cross-bill for annulment did not “respond to chief object” of a domestic relations dispute and did not determine “the principles necessary to adjudicate the cause” and thus was not appealable to the Court of Appeals and that court lacked jurisdiction to entertain the appeal.

2006--- Najera v. Chesapeake Division of Social Services, 48 Va. App. 237
Father’s appeal of circuit court order approving foster care plan recommending termination of his parental rights and adoption of his son was rendered moot by entry of a final, unappealable order terminating Father’s residual parental rights.

2005--- Prizzia v. Prizzia, 45 Va. App. 280
Trial court’s decision stating that it would not exercise jurisdiction over the divorce or child custody proceedings “at this time” was not a “final order” for purposes of appeal. The order did not actually dismiss the divorce or custody proceedings, either partially or entirely, and thus, did not dispose of the whole subject of the suit or grant all relief contemplated by the parties.

Trial court’s decision stating that it would not exercise jurisdiction over divorce or child custody proceedings “at this time” was not an appealable interlocutory order. Pursuant to Va. Code §17.1-405, the Court of Appeals has jurisdiction to consider only those interlocutory orders that “adjudicate the principles of a cause” by determining the rights of the parties and affecting the final order of the case. An interlocutory order that adjudicates the principles of a domestic relations suit must respond to the chief object of the suit, which, in this case, was to determine the status of the parties’ marriage and the custody of the parties’ children. Trial court’s decision not to exercise jurisdiction “at this time” does not determine the status of any of the above issues, and as such, is not an appealable interlocutory order.

2004--- Estate of Hackler v. Hackler, 44 Va. App. 51
Trial court’s order stating that “after the final accounting filed by the Commissioner is reviewed and approved by this Court, this Court will end the cause” was not a “final order” for purposes of appeal. The language indicated that the trial court considered the cause to still be open, as the final accounting was crucial with regard to what was in the estate, disbursements made by husband prior to his death, and whether the relief granted by the order was justified. That the order was titled “Final Order” was not dispositive.

2001--- Travis v. Finley, 36 Va. App. 189
A final decree, for purposes of appeal, is one which disposes of the whole subject, gives all the relief that is contemplated, and leaves nothing to be done by the court on the subject.

1999--- Wells v. Wells, 29 Va. App. 82
An interlocutory order that denied Wife’s motion to dismiss divorce action for lack of subject matter jurisdiction was not appealable. Va. Code §17.1-405.3(f)(4).

1996--- Knight v. Laney, Va. Ct. of Appeals, Unpublished, No. 1190-95-1
An interlocutory order of adoption “adjudicates the principles of a cause” to such an extent that the Court of Appeals has the jurisdiction to hear an appeal from such an order.

1994--- Cummings v. Cummings, Va. Ct. of Appeals, Unpublished, No. 2414-93-3
An award of pendente lite relief is not appealable.

1993--- Peet v. Peet, 16 Va. App. 323
A judgment of contempt that suspends or reserves the imposition of a penalty is not “final,” and therefore not appealable. However, an order sentencing a party for contempt, but suspending the execution of the sentence to allow the contemnor an opportunity to purge himself of the contempt, is a final, appealable order.

1991--- Weizenbaum v. Weizenbaum, 12 Va. App. 899
A trial court’s order of “partial lump sum alimony” in the amount of $150,000 constituted a final, appealable order, as it adjudicated the “principles of a cause” within the meaning of Va. Code §17-116.05(4), notwithstanding the fact that a final decree for the amount of additional spousal support had not yet been entered. The trial court clearly determined that the wife was entitled to spousal support, and presumably considered all the factors of Va. Code §20-107.1 in arriving at the partial award. All that was left for a final decree was a determination of the husband’s income and assets from which the final amount would be determined. The $150,000 award constituted a judgment which, if not appealed by husband, could be executed upon with no recourse for husband. The action of the trial court here created a serious, permanent consequence that could not be remedied by waiting until a final order was entered.

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