R. L. H. v. R. D. H. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
R. L. H.
MEMORANDUM OPINION * BY
v. Record No. 0463-96-4 JUDGE JOHANNA L. FITZPATRICK
OCTOBER 22, 1996
Rawle D. H.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane M. Roush, Judge
JoAnne B. Butt for appellant.
Edwin C. Gillenwater for appellee.
The dispositive issue in this case is whether appellant
timely noted her appeal from an adverse custody decision in the
juvenile court. Finding no error, we affirm the decision of the
trial court.
At the conclusion of an April 26, 1995 custody hearing in
the Fairfax Juvenile and Domestic Relations District Court, the
court awarded custody to the father (R. D. H.) (appellee). No
final order was entered at that time. The mother (R. L. H.)
(appellant) asserts that she filed a notice of appeal of this
decision on May 3, 1995, prior to the entry of any court order.
However, no appeal notice is reflected in the record. Appellant
filed a motion to reconsider the custody decision that was denied
on May 5, 1995. No order regarding the juvenile court's ruling
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
had been entered as of May 3, 1995, or at the time of the motion
for reconsideration.
On June 16, 1995, appellant's counsel sent an original order
reflecting the trial court's April 26, 1995 custody determination
and the denial of appellant's May 5, 1995 motion to reconsider
the custody award to appellee's counsel. On June 19, 1995,
appellee's counsel mailed the order endorsed by both counsel to
the juvenile court for entry, and notified appellant's counsel
that the order had been transmitted to the court. On July 5,
1995, both counsel received a copy of the final order incorrectly
dated May 26, 1995.
On July 7, 1995, a deputy clerk in the juvenile court
changed the custody order to reflect an entry date of June 26,
1995, instead of the May 26, 1995 date inserted by the judge.
The clerk then dated the notice of appeal submitted by appellant
as being entered on June 29, 1995, rather than July 7, 1995, the
actual date of submission. It is undisputed that appellant's
notice of appeal was filed more than ten days after the entry of
the final order.
On February 5, 1996, the trial court granted appellee's
motion to quash and dismissed the appeal as untimely filed. The
trial judge found that: (1) the final order from the juvenile
court was entered on June 26, 1995; (2) the notice of appeal was
filed on July 7, 1995; (3) the deputy clerk had no authority to
backdate the appeal; and (4) the appeal was untimely.
2
Rule 8:20 governs the procedure for appealing from a
judgment of the juvenile court, and provides as follows: "[A]ll
appeals shall be noted in writing. An appeal is noted only upon
timely receipt in the clerk's office of the writing. An appeal
may be noted by a party or by the attorney for such party."
Code § 16.1-296(A) provides, in pertinent part: "From any
final order or judgment of the juvenile court affecting the
rights or interests of any person coming within its jurisdiction,
an appeal may be taken within ten days from the entry of a final
judgment, order or conviction." (Emphasis added).
This record establishes that no final order was entered
reflecting the custody determination by the juvenile court until
June 26, 1995. No notice of appeal dated May 3, 1995 appears in
the court file. Assuming without deciding that a potential
appeal was noted on May 3, 1995, it was premature. There was no
final order from which to appeal. Appellant failed to note an
appeal until July 7, 1995, eleven days after the final order was
1
entered.
Accordingly, we affirm the trial court.
Affirmed.
1
Appellant's argument that the trial court should not have
heard appellee's motion to dismiss on the day of trial has no
merit. While the motion had been denied by another judge prior
to trial, it was specifically entered "without prejudice" so that
it could be raised again at trial.
3