Oxenham v. Martin , 256 Va. 180 ( 1998 )

Present: All the Justices
THE HONORABLE A. ELISABETH OXENHAM,
JUDGE OF THE JUVENILE AND DOMESTIC
RELATIONS DISTRICT COURT OF HENRICO COUNTY
v. Record No. 980437 OPINION BY JUSTICE CYNTHIA D. KINSER
June 5, 1998
J.S.M., ETC., ET AL.
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
On January 9, 1998, the Circuit Court of Henrico
County issued a writ of prohibition against the Honorable
A. Elisabeth Oxenham, Judge of the Juvenile and Domestic
Relations District Court of Henrico County (Judge Oxenham).
Under the terms of the circuit court’s order, Judge Oxenham
could not prevent Robert H. Martin (Robert) from retaining
an attorney to represent his minor son on a petition
charging assault and battery filed by the child’s mother.
The dispositive issue in this appeal is whether Judge
Oxenham had jurisdiction to adjudicate the disposition of
the petition and, in doing so, had authority to appoint
counsel to represent the child. We conclude that she had
both the jurisdiction and authority to act and will,
therefore, reverse the judgment of the circuit court.
I.
On August 18, 1997, Olivia Lee Ligon Martin (Olivia)
filed a petition against J.S.M., 1 her ten-year-old son,
alleging that he committed assault and battery against her
on July 2, 1997, in violation of Code § 18.2-57.2. At the
initial hearing on the petition before Judge Oxenham, a
dispute arose between the parents regarding who should
represent J.S.M. on the pending assault and battery charge.
At that time, J.S.M.’s parents were involved in divorce and
custody proceedings. Olivia had sole custody of J.S.M.,
and Robert’s visitation rights with J.S.M. had been
temporarily suspended. Robert stated that he had retained
the counsel representing him in the divorce proceedings to
defend J.S.M. Olivia, however, wanted the attorney
representing her in the divorce case to serve as her son’s
counsel or, in the alternative, to have the court appoint
an attorney for J.S.M. 2 The issue of legal representation
for J.S.M. remained unresolved at the conclusion of the
hearing.
On October 31, 1997, J.S.M., individually and by his
next friend, Robert, filed a motion requesting Judge
Oxenham to recuse herself from hearing the pending petition
1
Full name of the minor deleted by this Court.
2
Olivia’s attorney later wrote Judge Oxenham and
stated that due to his involvement in the pending divorce
proceedings between Robert and Olivia, he could not
represent J.S.M.
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against J.S.M. or, in the alternative, to permit Robert to
choose counsel for J.S.M. In a November 6, 1997 letter
opinion, Judge Oxenham denied the motion and appointed
defense counsel and a guardian ad litem for J.S.M. Judge
Oxenham based her decision on the unusual degree of
animosity between J.S.M.’s parents and on Olivia's request
for the court to appoint an attorney to represent J.S.M.
since she could not afford to retain counsel for him.
Judge Oxenham concluded that it was in J.S.M.’s best
interests to have a court-appointed defense attorney as
well as a guardian ad litem.
In response to Judge Oxenham’s decision, Robert and
J.S.M. filed a petition for a writ of mandamus in the
circuit court. 3 The petition requested, inter alia, the
court to compel Judge Oxenham to allow Robert to select his
son’s counsel. The circuit court held a hearing on the
matter during which J.S.M.’s guardian ad litem stated that
he had not asked J.S.M. whether he preferred to have a
court-appointed attorney or private counsel. However, the
guardian ad litem stated that J.S.M. did not “express . . .
to me an opposition” to his court-appointed attorney and
3
The petition for a writ of mandamus was filed by
Robert, individually, and by J.S.M., individually and by
his next friend Robert.
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“appeared to be pleased” with his current legal
representation. At the conclusion of the hearing, the
court stated that it “[was] going to treat the petition for
mandamus as a petition for writ of prohibition.” The court
then granted the writ of prohibition. Judge Oxenham filed
a motion to reconsider, which the circuit court denied.
Judge Oxenham appeals.
II.
The law concerning writs of prohibition is well-
established and provides the framework for deciding this
case. “A writ of prohibition is an extraordinary remedy
employed ‘to redress the grievance growing out of an
encroachment of jurisdiction.’” Elliott v. Great Atlantic
Management Co., Inc., 236 Va. 334, 338, 374 S.E.2d 27, 29
(1988) (quoting James v. Stokes, 77 Va. 225, 229 (1883)).
In Grief v. Kegley, 115 Va. 552, 79 S.E. 1062 (1913), we
stated the well-settled principle that:
[T]he writ of prohibition does not lie to correct
error, but to prevent the exercise of the jurisdiction
of the court by the judge to whom it is directed,
either where he has no jurisdiction at all, or is
exceeding his jurisdiction. If the court or judge has
jurisdiction to enter any order in the proceeding
sought to be prohibited, the writ does not lie.
Id. at 557, 79 S.E. at 1064; see also Elliott, 236 Va. at
338, 374 S.E.2d at 29; In re Department of Corrections, 222
Va. 454, 461, 281 S.E.2d 857, 861 (1981); County School Bd.
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of Tazewell County v. Snead, 198 Va. 100, 107, 92 S.E.2d
497, 503 (1956).
Jurisdiction is “‘the power to adjudicate a case upon
the merits and dispose of it as justice may require.’” Id.
at 104-05, 92 S.E.2d at 501 (quoting Southern Sand and
Gravel Co., Inc. v. Massaponax Sand and Gravel Corp., 145
Va. 317, 332, 133 S.E. 812, 816 (1926) (Burks, J.,
concurring)); see also Black’s Law Dictionary 853 (6th ed.
1990). Accordingly, a writ of prohibition does not lie
against Judge Oxenham if she had jurisdiction to adjudicate
the disposition of the petition charging J.S.M. with
assault and battery, and in doing so, had authority to
appoint counsel to represent him. We find that Judge
Oxenham acted within her jurisdiction and that the circuit
court, therefore, erred in issuing the writ of prohibition.
Under Code § 16.1-241(J), the juvenile and domestic
relations district court has exclusive original
jurisdiction over “[a]ll offenses in which one family or
household member is charged with an offense in which
another family or household member is the victim . . . .”
The court also has exclusive original jurisdiction
regarding the disposition of a child who is alleged to be
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delinquent. 4 Code § 16.1-241(A)(1). In regard to the
appointment of counsel for a child charged with a
delinquent act, Code § 16.1-266(B) provides as follows:
Prior to the detention review hearing or the
adjudicatory or transfer hearing by the court of
any case involving a child who is alleged to be
. . . delinquent, such child and his or her
parent, guardian, legal custodian or other person
standing in loco parentis shall be informed by a
judge, clerk or probation officer of the child’s
right to counsel . . . and be given an
opportunity to:
1. Obtain and employ counsel of the child’s own
choice . . . . 5
Finally, subsection D of Code § 16.1-266 provides that
“[i]n all other cases which in the discretion of the court
require counsel or a guardian ad litem to represent the
interests of the child . . . , a discreet and competent
attorney-at-law may be appointed by the court.”
As a judge of the juvenile and domestic relations
district court, Judge Oxenham clearly had jurisdiction
under Code § 16.1-241 to adjudicate the disposition of the
petition charging J.S.M. with assault and battery. In
4
A “delinquent act” means “an act designated a crime
under the law of this Commonwealth . . . .” Code § 16.1-
228.
5
Subsection B(2) of Code § 16.1-266 provides that if
a child is indigent, a statement of indigence and a
financial statement shall be filed, and the court shall
appoint an attorney to represent the child. A third
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doing so, Judge Oxenham also had authority under Code
§ 16.1-266 to appoint counsel to represent J.S.M.
Exercising the discretion granted her in Code § 16.1-266,
Judge Oxenham correctly concluded that J.S.M.’s age as well
as the open animosity between his parents prevented J.S.M.
from choosing his own counsel. At that time, J.S.M.'s
parents were still embroiled in divorce and custody
proceedings, and Robert's visitation rights had been
temporarily suspended. Furthermore, J.S.M.’s parents could
not agree on an attorney to represent their son. Given
these ongoing conflicts, Judge Oxenham determined that it
was in J.S.M.'s best interests to be represented by an
attorney who was not involved in the legal proceedings
between his parents. Cf. Stanley v. Fairfax Co. Dep’t of
Soc. Services, 10 Va. App. 596, 601, 395 S.E.2d 199, 202
(1990), aff’d, 242 Va. 60, 405 S.E.2d 621 (1991)
(recognizing that rights of child are often separate and
distinct from those of other parties to litigation and are
best protected by independent counsel).
Nevertheless, Robert and J.S.M. argue that Judge
Oxenham did not follow the necessary procedural steps for
appointing counsel under Code § 16.1-266 and thus violated
_________________
alternative is waiver of the right to be represented by an
attorney. Code § 16.1-266(B)(3).
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J.S.M.'s Sixth Amendment right to counsel guaranteed by the
United States Constitution. They contend that Judge
Oxenham should not have imposed her choice of counsel on
J.S.M. without first making an actual finding, after notice
and hearing, that a conflict exists between J.S.M. and his
father and that J.S.M. is incapable of choosing his own
attorney. In other words, they assert that Judge Oxenham
had to give J.S.M. and his father the opportunity to obtain
and employ counsel of J.S.M.’s own choice before she could
appoint an attorney for J.S.M. Thus, according to Robert
and J.S.M., Judge Oxenham lost whatever jurisdiction she
initially had by preempting J.S.M.’s right to select his
attorney.
We disagree with their argument and note that the
cases upon which Robert and J.S.M. rely are habeas corpus
cases in which we addressed the statutory requirement
regarding the appointment of a guardian ad litem for a
child who appears in court without representation by either
a parent or an attorney. See Pruitt v. Peyton, 209 Va.
532, 535, 165 S.E.2d 288, 290 (1969); Gogley v. Peyton, 208
Va. 679, 682, 160 S.E.2d 746, 748 (1968); Gregory v.
Peyton, 208 Va. 157, 160, 156 S.E.2d 624, 625-26 (1967).
In each of these cases, we held that the juvenile court's
failure to appoint a guardian ad litem for the child
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rendered the subsequent proceedings or convictions void.
Those cases, however, are not relevant to this appeal since
Judge Oxenham did not fail to appoint an attorney to
represent J.S.M. Further, if she omitted any procedural
step required by Code § 16.1-266(B) regarding the
appointment of counsel for a child charged with committing
a delinquent act, such an omission was merely a procedural
error and did not result in a loss of jurisdiction. A writ
of prohibition does not lie to correct errors. Grief, 115
Va. at 557, 79 S.E. at 1064.
For these reasons, we will reverse the judgment of the
circuit court and dismiss the writ of prohibition.
Reversed and dismissed.
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