Commonwealth/DSS v. Raymond M. Walker , 22 Va. App. 230 ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia
COMMONWEALTH OF VIRGINIA,
VIRGINIA DEPARTMENT OF SOCIAL
SERVICES, DIVISION OF CHILD SUPPORT
ENFORCEMENT, ex rel., JANET MAY OPINION BY
JUDGE LARRY G. ELDER
v. Record No. 1870-95-2 APRIL 9, 1996
RAYMOND M. WALKER
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
Keith H. Warren, Special Counsel, Virginia
Department of Social Services (Betsy S. Elliott,
Senior Special Counsel, Virginia Department of
Social Services; James S. Gilmore, III, Attorney
General; William H. Hurd, Deputy Attorney General;
Siran S. Faulders, Senior Assistant Attorney
General; Robert B. Cousins, Jr., Senior Assistant
Attorney General, on brief), for appellant.
Wilbert L. Sawyer, Jr., for appellee.
The Commonwealth/Department of Social Services, Division of
Child Support Enforcement (DCSE), ex rel. Janet May, appeals the
circuit court's decision that Raymond M. Walker (father) owed no
child support arrearage. DCSE contends that the circuit court
lacked jurisdiction to hear father's appeal from the juvenile and
domestic relations district court (J&DR court) where father
posted no appeal bond. Because the circuit court possessed
jurisdiction over the case, even though father posted no appeal
bond, we affirm its judgment.
I.
FACTS
In May 1986, the J&DR court entered a support order
directing father to pay one hundred dollars per week for the
support of his two minor children. In March 1994, DCSE filed a
motion for a show cause order with the J&DR court, alleging
father had accrued an arrearage of $2,496.06. On September 9,
1994, the J&DR court found father in contempt for failure to pay
child support as ordered. The J&DR court suspended father's jail
sentence on the condition that he make payment on $2,395 in
arrears.
Father appealed the J&DR court's order to the Circuit Court
of Hanover County. DCSE objected to the taking of any testimony
from father, arguing that father failed to post an appeal bond as
mandated by Code § 16.1-296(H). The circuit court overruled
DCSE's objection, heard testimony, and ruled that father owed no
arrears. The Commonwealth now appeals, arguing that the circuit
court lacked jurisdiction to hear father's appeal.
II.
JURISDICTION
Using Code § 16.1-296 as a foundation, DCSE contends that a
party must post an appeal bond in all appeals from a J&DR court
to a circuit court, where that party owes a support arrearage,
even where such bond is not set by either court. Code
§ 16.1-296(H) states, in pertinent part:
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No appeal bond shall be required of a
party appealing from an order of a juvenile
and domestic relations district court except
for that portion of any order or judgment
establishing a support arrearage or
suspending payment of support during pendency
of an appeal. In cases involving support, no
appeal shall be allowed unless and until the
party applying for the same or someone for
him shall give bond, in any amount and with
sufficient surety approved by the judge or by
his clerk if there is one, to abide by such
judgment as may be rendered on appeal if the
appeal is perfected or, if not perfected,
then to satisfy the judgment of the court in
which it was rendered.
(Emphases added).
DCSE asserts that "[t]he statutory requirements for appeal
bonds have always been construed as mandatory [] and the exercise
of appellate jurisdiction confined to the provisions of the
written law." Covington Virginian, Inc. v. Woods, 182 Va. 538,
543, 29 S.E.2d 406, 408 (1944). DCSE also contends that Scheer
v. Isaacs, 10 Va. App. 338, 392 S.E.2d 201 (1990), 1 and McCall v.
Commonwealth ex rel. Ware, 20 Va. App. 348, 457 S.E.2d 389(1995), 2 stand for the principle that a party's failure to post
1
In Scheer, the mother obtained a child support arrearage
judgment against the father in the J&DR court. The J&DR court
set an appeal bond. The father filed his appeal with the circuit
court but failed to post an appeal bond. "The circuit court
dismissed the appeal, finding that it had no jurisdiction as the
appeal bond had not been timely filed." Id. at 339, 392 S.E.2d
at 202. The Court of Appeals affirmed the circuit court's
dismissal of the appeal, stating that Code § 16.1-107 expressly
requires the posting of an appeal bond, and "[w]hen the bond is
not given, the appellate court has no jurisdiction." Id. at 340,
392 S.E.2d at 202.
2
In McCall, the mother obtained an arrearage judgment
against the father in the J&DR court. The J&DR court set an
appeal bond. The father filed his appeal with the circuit court,
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an appeal bond deprives a circuit court of its jurisdiction to
hear the appeal.
We disagree with DCSE's reasoning. A close reading of
Scheer and McCall reveals that in both cases the J&DR court set
an appeal bond which the party never posted. Because in this
case neither the J&DR court nor the circuit court set an appeal
bond, Scheer and McCall are inapposite. We hold that where a
J&DR court fails to require an appeal bond as required by
statute, the circuit court is not deprived of its jurisdiction.
Jenkins v. Bertram, 163 Va. 672, 177 S.E. 204 (1934)(holding that
a magistrate's failure to require an appeal bond does not oust
the circuit court of its jurisdiction over the appeal). The
proper course for the circuit court to follow before it hears an
appeal from the J&DR court under these circumstances is to
"correct the omission of the magistrate and require the execution
of an appeal bond pursuant to the statute allowing appeals, and
upon due execution thereof to proceed with the trial of the case
'according to the principles of law and equity.'" Id. at 675,
177 S.E. at 205 (citing predecessor to current Code
§ 16.1-114.1 3 ).
but he failed to post the appeal bond, which had been increased
by the circuit court. Id. at 390, 457 S.E.2d at 390. The
circuit court dismissed the father's appeal. This Court held, as
it did in Scheer, that the circuit court did not err in
dismissing the appeal because the father failed to post the
required appeal bond.
3
Code § 16.1-114.1 states:
Actions or proceedings appealed or
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Just as "a deficient appeal bond does not [r]equire
dismissal of [an] appeal," Burks v. Three Hills Corp., 214 Va.
322, 323, 200 S.E.2d 521, 522 (1973)(holding that a circuit court
may correct a deficient appeal bond and retain jurisdiction over
the appeal), equitable considerations dictate that under the
facts of this case, the circuit court obtained jurisdiction to
hear father's appeal. See Hurst v. Ballard, 230 Va. 365, 368,
337 S.E.2d 284, 285 (1985)(recognizing that Code § 16.1-114.1
contains curative provisions that can be used to correct "a mere
defect, irregularity, or omission in the proceedings").
DCSE concedes that the circuit court's decision on the
merits is sound. Father prevailed on appeal and did not need to
satisfy the judgment in mother's favor. Therefore, the circuit
court's procedural error in failing to require an appeal bond was
removed from district courts shall be tried
according to the principles of law and
equity, and when the same conflict the
principles of equity shall prevail. No
warrant, motion or other pleading shall be
dismissed by reason of a mere defect,
irregularity or omission in the proceedings
in district court . . . when the same may be
corrected by proper order of the court of
record. In any such case the court of record
shall retain the same, with full power to
direct all necessary amendments, to enter
orders and direct proceedings to correct such
defects, irregularities and omissions, to
promote substantial justice to all parties,
and to bring about a trial of the merits of
the controversy. This section shall be
liberally construed, to the end that justice
is not delayed or denied by reason of errors
in the pleadings or in the form of the
proceedings.
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harmless. Furthermore, DCSE never asked either the J&DR court or
the circuit court to set an appeal bond. Rather, DCSE made a
jurisdictional argument before the circuit court, arguing that
the circuit court could not hear the case because father posted
no appeal bond. Under these facts, examined in conjunction with
"equitable considerations," we hold that the trial court had
jurisdiction over this case, even after it failed to correct the
J&DR court's failure to set an appeal bond. See Burks, 214 Va.
at 323, 200 S.E.2d at 522; Code § 16.1-114.1.
Accordingly, we affirm the circuit court's order.
Affirmed.
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