David B. Bostwick v. Kelly J. Woods ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Senior Judge Hodges
DAVID B. BOSTWICK
MEMORANDUM OPINION *
v. Record Nos. 2203-01-4, 2204-01-4 PER CURIAM
and 2205-01-4 JANUARY 29, 2002
KELLY J. WOODS
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James H. Chamblin, Judge
(David B. Bostwick, pro se, on brief).
No brief for appellee.
David B. Bostwick (father) appeals the decision of the
circuit court granting Kelly J. Woods' (mother) motion to dismiss
his appeal of a juvenile and domestic relations district court's
(juvenile court) order. The juvenile court denied his petition to
modify child support, established an amount of arrearages he owed
mother, and awarded mother attorney's fees. On appeal, father
contends the circuit court erred by dismissing his appeal because
he failed to timely post his appeal bond pursuant to Code
§ 16.1-296. He argues his appeal from the order concerning
modification of child support and the award of attorney's fees did
not require the posting of an appeal bond. Upon reviewing the
record and opening brief, we conclude that these appeals are
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
without merit. Accordingly, we summarily affirm the decision of
the trial court. See Rule 5A:27.
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to appellee as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
Procedural Background
Amanda Bostwick was born to father and mother on October 24,
1993 in California. A California court subsequently awarded
mother custody and child support. The parties moved to Virginia
in 2000, and mother registered the California custody and child
support orders in the juvenile court. Father then moved the court
to modify the child support payments he was making to mother.
Mother moved the court for a show cause order to establish the
amount of arrearages owed her by father. In a May 16, 2001 order,
the court granted mother's motion to strike father's petition,
determined the amount of arrearages, and awarded mother attorney's
fees.
On May 25, 2001, father appealed the court's ruling to the
circuit court. The juvenile court set an appeal bond in the
amount of $10,000. Father failed to post the bond within the time
period set by Code § 16.1-296, and the circuit court dismissed his
appeal for that reason.
A written statement of facts is in the record; but, because
it has not been signed by the trial judge, we will not consider
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it. However, we find it is not indispensable for a disposition
of the issues. 1
Analysis
Father contends the circuit court erroneously dismissed his
appeal regarding the juvenile court's denial of child support
modification and its award of attorney's fees. He reasons that
he was not required to post an appeal bond under Code
§ 16.1-296(H) for the portions of his appeal not addressing the
juvenile court's establishment of a support arrearage.
Code § 16.1-296(H) provides, in pertinent part:
In cases involving support, no appeal
shall be allowed until the party applying
for the same or someone for him gives bond,
in an 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.
Father appealed from the juvenile court's May 16, 2001 order,
which included the establishment of arrearages as well as the
award of attorney's fees and denial of his motion for child
support modification.
An appeal from a court not of record is
tried de novo. See Code §§ 16.1-106,
16.1-113; Copperthite Pie Corp. v.
Whitehurst, 157 Va. 480, 488, 162 S.E. 189,
191 (1932) (citing Southern Ry. Co. v. Hill,
106 Va. 501, 505, 56 S.E. 278, 280 (1907));
see also Hailey v. Dorsey, 580 F.2d 112, 114
1
We therefore find it unnecessary to address mother's
motions to dismiss.
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(4th Cir. 1978), cert. denied, 440 U.S. 937
(1979). Such an appeal transfers the entire
record to the circuit court for retrial as
though the case had been originally brought
there. See Addison v. Salyer, 185 Va. 644,
650, 40 S.E.2d 260, 263 (1946). Upon
transfer, the order and judgment of the
lower court are annulled. See Ragan v.
Woodcroft Village Apts., 255 Va. 322, 327,
497 S.E.2d 740, 742 (1998) (citing
Nationwide Mut. Ins. Co. v. Tuttle, 208 Va.
28, 32, 155 S.E.2d 358, 361 (1967)).
It follows that because no case or
judgment exists in the lower court, and
because the circuit court upon appeal acts
as the tribunal of original jurisdiction, it
must address and dispose of all issues
raised by the petitioner in the lower court.
Mahoney v. Mahoney, 34 Va. App. 63, 66-67, 537 S.E.2d 626, 628
(2000). Consequently, "the circuit court must decide . . . the
issue of arrearages, because no judgment on arrearages exists
once the matter is appealed from the lower tribunal." Id. As
such, father's failure to post bond under Code § 16.1-296(H) was
fatal to his appeal. Accordingly, we summarily affirm the
decision of the trial court. See Rule 5A:27.
Affirmed.
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