Debra (Walker) Scott v. Tony Scott ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
DEBRA (WALKER) SCOTT
MEMORANDUM OPINION *
v. Record No. 2830-02-2 PER CURIAM
FEBRUARY 11, 2003
TONY SCOTT
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
(William Mills Krieger, on brief), for
appellant. Appellant submitting on brief.
No brief for appellee.
Debra (Walker) Scott (wife) appeals the decision of the
circuit court dismissing her bill of complaint seeking a divorce
from Tony Scott (husband). On appeal, wife contends the trial
court erred by finding husband, a prisoner, could not waive the
appointment of a guardian ad litem. Wife asks that we reverse the
trial court's order dismissing the case and remand for
consideration upon the merits. Upon reviewing the record and
opening brief, we agree with wife and reverse.
Background
Wife filed a bill of complaint seeking a divorce from husband
on January 20, 2002. She asserted they had been separated for
over one year. Husband was incarcerated at the time and submitted
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
to the court a waiver of right to guardian ad litem on February 4,
2002, waiving his rights to be represented in the divorce and
requesting the court not appoint a guardian ad litem. The trial
court dismissed the action, holding that the appointment of a
guardian ad litem cannot be waived.
Analysis
"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). "[T]he appointment of
a [guardian ad litem is] a procedural provision which [can] be
waived by a prisoner." Cross v. Sundin, 222 Va. 37, 38, 278
S.E.2d 805, 806 (1981); see also Pigg v. Commonwealth, 17
Va. App. 756, 760, 441 S.E.2d 216, 219 (1994) (en banc).
Husband permissibly waived his right to the appointment of
a guardian ad litem, and the trial court erred by dismissing the
action. Accordingly, we reverse and remand.
Reversed and remanded.
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