Atif Beyah Saleem, a/k/a Wm. Robinson v. P. Saleem ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Alexandria, Virginia
ATIF BEYAH SALEEM, A/K/A
WILBERT ROBINSON
MEMORANDUM OPINION * BY
v. Record No. 2845-00-4 JUDGE SAM W. COLEMAN III
NOVEMBER 20, 2001
PAMALA LOUISE BEVELS SALEEM
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge
Atif Beyah Saleem, pro se.
No brief or argument for appellee.
Atif Beyah Saleem, a convicted felon presently incarcerated
at Nottoway Correctional Center, appeals the trial court's
dismissal of his bill of complaint seeking a dissolution of his
marriage to Pamala Saleem pursuant to Code § 20-91(A)(3).1 The
trial court found that it was the "general practice of this
judicial circuit to appoint a Commissioner in Chancery to make
factual inquiry in cases of this sort, but that such inquiry is
precluded in instances where Complainant is incarcerated in a
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Code § 20-91(A)(3) provides that a divorce may be granted
"[w]here either of the parties subsequent to the marriage has
been convicted of a felony, sentenced to confinement for more
than one year and confined for such felony subsequent to such
conviction."
state penal facility." The sole question on appeal is whether the
trial court erred in dismissing Saleem's bill of complaint because
he is incarcerated. We hold that the trial court erred, and
reverse and remand.
"Convicts are not civilly dead in Virginia, and . . . [are]
not legally incompetent to transact business either before or
after [a] conviction in the criminal case." Dunn v. Terry, 216
Va. 234, 239, 217 S.E.2d 849, 854 (1975).
Code § 8.01-410 provides in pertinent part:
Whenever any party in a civil action in any
circuit court in this Commonwealth shall
require as a witness in his behalf, a
convict or prisoner . . . the court, on
application of such party or his attorney
may, in its discretion . . . issue an order
to the Director of the Department of
Corrections to deliver such witness to the
sheriff of the jurisdiction of the court
issuing the order.
If a prisoner's civil claim "falls within the
jurisdictional limits of the circuit court, he may bring the
claim there and, under Code § 8.01-410, the circuit court will
have the discretion to enter a transportation order to provide
for his court appearance." Commonwealth v. Brown, 259 Va. 697,
707, 529 S.E.2d 96, 101 (2000).
Code § 8.01-410 also provides that "any party to a civil
action in any circuit court in this Commonwealth may take the
deposition of a convict or prisoner in the institution . . . ."
Code § 8.01-614 provides that a commissioner in chancery "may,
- 2 -
if it shall appear to him necessary, adjourn such proceedings,
to any place within the Commonwealth and there continue such
proceedings . . . ."
Jurisdiction for a divorce suit lies with the circuit
courts. See Code § 20-96. Saleem's bill of complaint seeking
the dissolution of his marriage was properly filed with the
circuit court. While Code § 8.01-410 authorizes the
transportation of a convict to a circuit court for a civil
proceeding, in the discretion of the court, the court instead
dismissed the suit. Thus, the court, did not reach the issue
whether in the exercise of its sound discretion it should
provide for the transportation of the convict to the court in
order to maintain his divorce suit or should authorize the
commissioner in chancery pursuant to Code § 8.01-614 to "adjourn
[the] proceedings" to the Nottoway Correctional Center.
Furthermore, upon the record before us, the court did not afford
Saleem the opportunity to present his evidence by deposition.
See Brown, 259 Va. at 707, 529 S.E.2d at 101 (finding that
alternative means of producing evidence, by deposition or
telephonic hearing, are adequate means to assure a convict a
fair hearing, for civil claims in district courts). We hold
that Saleem is entitled to assert his civil claim before the
circuit court and that the court erred by dismissing the suit.
The decree dismissing Saleem's bill of complaint, because
he is incarcerated and unable to attend a factual hearing by a
- 3 -
commissioner in chancery, is reversed and the case is remanded
for further proceedings consistent with this opinion.
Reversed and remanded.
- 4 -