James B. Spear, Jr. v. Nawara T. Omary

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Senior Judge Haley
UNPUBLISHED
Argued at Fredericksburg, Virginia
JAMES B. SPEAR, JR.
MEMORANDUM OPINION BY
v. Record No. 0064-17-4 JUDGE ROSSIE D. ALSTON, JR.
JANUARY 16, 2018
NAWARA T. OMARY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David S. Schell, Judge
Melanie Hubbard (Malinowski Hubbard, PLLC, on briefs), for
appellant.
Mehagen D. McRae (Surovell Isaacs Levy, PLLC, on brief), for
appellee.
James B. Spear, Jr. (appellant) argues that the Fairfax County Circuit Court (circuit court)
erred when it vacated the Fairfax County Juvenile and Domestic Relations District Court’s
(J&DR court) modification order for lack of jurisdiction.1 Appellant specifically contends that
the J&DR court did have jurisdiction over the issue of child support. We disagree. 2

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Any reference to “jurisdiction” in this opinion refers to “active jurisdiction.” “[S]ubject
matter jurisdiction, perhaps best understood as the ‘potential’ jurisdiction of a court, is the
authority granted to it by constitution or statute over a specified class of cases or controversies,
and becomes ‘active’ jurisdiction, the power to adjudicate a particular case upon the merits, only
when various elements are present.” Prizzia v. Prizzia, 58 Va. App. 137, 160, 707 S.E.2d 461,
472 (2011) (quoting Ghameshlouy v. Commonwealth, 279 Va. 379, 388-89, 698 S.E.2d 698,
702-03 (2010)).
2
In his second assignment of error, appellant argues that the trial court erred in failing to
conduct a de novo review of the case on appeal. Appellee argues, pursuant to Rule 5A:18, that
appellant is barred from arguing this assignment of error. Rule 5A:18 provides that “[n]o ruling
of the trial court . . . will be considered as a basis for reversal unless an objection was stated with
reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court
BACKGROUND
Nawara T. Omary (appellee) filed a complaint for divorce from appellant in the Circuit
Court of Fairfax County in the spring of 2010. The parties jointly drafted a Support, Property,
and Custody Agreement which was incorporated into the final divorce decree. Paragraph 9 of
that agreement noted that appellant agreed to pay $3,500 per month to appellee as child support.
Subsequent to the entry of the final decree of divorce in the circuit court, the Commonwealth of
Virginia’s Department of Social Services Division of Child Support Enforcement (DCSE) made
a motion to reopen, intervene, and transfer the case to J&DR court on behalf of appellant. DCSE
was granted leave to intervene, and the case was transferred to J&DR court.
Appellant filed a petition in J&DR court to modify his child support obligation in
September of 2013 alleging a material change in circumstances. The J&DR court found that
there was no material change in appellant’s circumstances and denied the petition. Appellant
appealed that determination to circuit court. Appellant then withdrew his appeal on May 9,
2014. The circuit court’s May 9 withdrawal order (withdrawal order) stated “[Appellant] hereby
withdraws his appeal in the above captioned matter; it is therefore ordered and adjudged, that the
appeal in the above captioned matter is hereby withdrawn.” DCSE then filed a motion in J&DR
of Appeals to attain the ends of justice.” This rule “requires a litigant to make timely and
specific objections, so that the trial court has ‘an opportunity to rule intelligently on the issues
presented, thus avoiding unnecessary appeals and reversals.’” Brown v. Commonwealth, 279
Va. 210, 217, 688 S.E.2d 185, 189 (2010) (quoting West v. Commonwealth, 43 Va. App. 327,
337, 597 S.E.2d 274, 278 (2004)). Appellee specifically asserts that appellant’s “seen and
objected to” notation was made in writing and not before the court. In Lee v. Lee, 12 Va. App.
512, 515, 404 S.E.2d 736, 738 (1991) (en banc), this Court held that an appellant complies with
Rule 5A:18 by “includ[ing] an objection and reasons therefor in the final order.” While the
notation “seen and objected to” is not usually sufficient “because it does not sufficiently alert the
trial court to the claimed error,” Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d 923, 927
(2000), it is sufficient “only if ‘the ruling made by the trial court was narrow enough to make
obvious the basis of appellant’s objection,’” id. (quoting Mackie v. Hill, 16 Va. App. 229, 231,
429 S.E.2d 37, 38 (1993)). The ruling was narrow enough here. Regardless, we find that the
first assignment of error is dispositive, and thus, we need not consider appellant’s second
assignment of error.
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court to amend or review on behalf of appellant, alleging a material change in circumstances.
DCSE requested: a modification of child support, a recalculation of child support pursuant to the
guidelines, and that the parties provide health care coverage pursuant to Code § 20-108.2. In that
proceeding, the J&DR court found that there was a material change in circumstances and entered
an order on March 3, 2016 (modification order) requiring appellant to pay $1,088 per month in
child support. This downward modification resulted in appellant receiving a credit in excess of
$14,000 on previously-paid child support payments. Appellee signed the order “seen and
objected to,” and then appealed the modification order to the circuit court.
At trial, appellee argued that the DCSE motion to modify child support was “filed in the
wrong court” since the withdrawal order “never remanded [the matter] back down to the [J&DR]
court.” According to appellee, because the circuit court did not state in its withdrawal order that
the case was remanded, the J&DR court did not have jurisdiction over the matter. Thus, appellee
requested that the modification order be vacated. DCSE agreed that procedurally, this is indeed
what had occurred. Appellant argued that vacating the modification order was unfair.
Ultimately, the circuit court entered an order on August 11, 2016 stating that because “there is no
indication that this case was remanded back to the [J&DR c]ourt, therefore, it remains in the
jurisdiction of the [c]ircuit [c]ourt[,] and therefore the [J&DR c]ourt had no jurisdiction to enter
the [modification] order.” The circuit court dismissed the case, vacated the modification order,
and found that the “child support provisions of this [c]ourt’s Final Divorce Order remain[ed] in
full force and effect.” The circuit court then “adjudged, ordered[,] and decreed that [appellant]
has removed this motion from the August 2016[] domestic relations docket without prejudice.”
Appellant filed a motion to reconsider and a motion to stay the August 11, 2016 order.
Appellant argued that the J&DR court had jurisdiction to rule on the matter. In appellant’s view,
although the circuit court did not state in its withdrawal order that the case was remanded, “by
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operation of law,” under Code § 16.1-106.1 (controlling statute), the matter was automatically
remanded to the J&DR court.
Conversely, appellee contends that the J&DR court did not have jurisdiction to rule on
the issue of child support and asserts that the controlling statute does not provide for an
automatic remand. Further, the withdrawal order did not remand the matter back because it did
not state as such. Appellee also highlighted that the controlling statute requires that Code
§ 16.1-297 (facilitation statute) be followed. The facilitation statute directs the circuit court to
file a “copy of its judgment . . . with the juvenile court within twenty-one days of entry of its
order” to withdraw an appeal in civil cases. Code § 16.1-297. Appellee alleges that the circuit
court did not state the matter was remanded in its withdrawal order nor did it satisfy that
requirement; thus, the J&DR court did not have jurisdiction over the matter.
In response, DCSE argued that the case law supported the proposition that
anytime a matter is brought from the [J&DR c]ourt to the [c]ircuit
[c]ourt [and] no action is taken[,] it is simply removed, whether it
is dismissed for lack of pursuing the action or it’s withdrawn by a
party prior to trial[,] then it automatically goes back to the
[J&DR c]ourt for any future modifications or enforcement of the
court order, that is the statutory scheme.
Appellant also filed a motion for attorney’s fees which he argued that the circuit court
had the authority to award under paragraph 13(B) of the parties’ Support, Property and Custody
Agreement which was incorporated into the final divorce decree. Appellee requested attorney’s
fees and costs in her response to appellant’s motion for reconsideration.
The circuit court found that the withdrawal order did not remand the matter to the J&DR
court and that the controlling statute required that the circuit court upon withdrawal of the appeal
transmit a copy of the record to the J&DR court. Because there was no express remand and
because that statutory prerequisite was not met, “then [the] case [wa]s not transferred, because
jurisdiction has to be done.” The circuit court stated in its order that it declined appellant’s
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motion to reconsider, lifted the suspending order, and subsequently “removed this motion” from
the docket without prejudice. Appellant signed the order “[s]een and objected to.” Neither party
was awarded its attorney’s fees.
Now comes this appeal.
ANALYSIS
“[T]he interpretation of statutes presents a pure question of law subject to de novo review
by this Court.” Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d 246, 248 (2003). In interpreting
such statutes, we “ascertain and give effect to the intention of the legislature.” Boynton v.
Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925 (2006) (quoting Chase v. DaimlerChrysler
Corp., 266 Va. 544, 547, 587 S.E.2d 521, 522 (2003)). The legislature’s intention “is usually
self-evident from the words used in the statute.” Id. at 227, 623 S.E.2d at 925-26. “[W]e must
give effect to the legislature’s intention as expressed by the language used unless a literal
interpretation of the language would result in a manifest absurdity.” Conyers v. Martial Arts
World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). So long as the terms are
unambiguous, we apply the plain language of the statute. Boynton, 271 Va. at 227, 623 S.E.2d at926 (citing Tiller v. Commonwealth, 193 Va. 418, 420, 69 S.E.2d 441, 442 (1952)). A statute is
ambiguous if it is “subject to more than one interpretation[;] we must apply the interpretation
that will carry out the legislative intent behind the statute.” Conyers, 273 Va. at 104, 639 S.E.2d
at 178.
It is important to note that “an appeal may be taken to the circuit court” from “any final
order or judgment of the [J&DR] court affecting the rights or interests of any person coming
within its jurisdiction . . . and shall be heard de novo.” Code § 16.1-296(A). “[O]nce a circuit
court acquires jurisdiction, it retains jurisdiction over the juvenile proceedings until it remands
the matter to the juvenile court, dismisses the proceedings[,] or discharges the juvenile.” Austin
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v. Commonwealth, 42 Va. App. 33, 38, 590 S.E.2d 68, 71 (2003) (citing the facilitation statute).
When withdrawing an appeal from a J&DR court, the controlling statute provides that
the circuit court shall enter such order as may be appropriate to
conclude all matters arising out of the petition or motion filed in
the juvenile and domestic relations district court and the appeal in
circuit court, consistent with the judgment or order entered in the
juvenile and domestic relations district court, as modified by the
grant of any additional relief by the circuit court pursuant to this
subsection. Unless the circuit court orders that the case remain in
the circuit court, the case shall be remanded to the juvenile and
domestic relations district court for purposes of enforcement and
future modification and shall be subject to all the requirements of
§ 16.1-297.
Code § 16.1-106.1(F) (emphasis added). The controlling statute refers to the facilitation statute,
which requires that
[u]pon the rendition of final judgment upon an appeal from the
juvenile and domestic relations district court, the circuit court shall
cause a copy of its judgment to be filed with the juvenile court
within twenty-one days of entry of its order, which shall thereupon
become the judgment of the juvenile court. In the event such
circuit court does not dismiss the proceedings or discharge such
child or adult, the circuit court may remand the child or adult to
the jurisdiction of the juvenile court for its supervision and care,
under the terms of its order or judgment, and thereafter such child
or adult shall be and remain under the jurisdiction of the juvenile
court in the same manner as if such court had rendered the
judgment in the first instance.
Code § 16.1-297 (emphasis added). It is important to note that while the facilitation statute
clearly directs the circuit court to file a copy of its final judgment
with the juvenile court . . . , the language of the remainder of the
statute . . . provid[es] the circuit court with discretion to remand[.
It] demonstrates that the failure to [file a copy] does not result in
the loss of jurisdiction by the circuit court.
Austin, 42 Va. App. at 41, 590 S.E.2d at 72 (indicating that the “may remand” language in the
facilitation statute is permissive and not mandatory in nature). In addition, pursuant to Code
§ 16.1-298(D), the effect of the withdrawal is that “the judgment, order, or decree rendered by
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the juvenile court shall have the same legal effect as if no appeal had been noted, except . . . as
modified by the circuit court pursuant to subsection F of [Code] § 16.1-106.1.”
We view the evidence in the light most favorable to appellee, the prevailing party below.
Martin v. Bales, 7 Va. App. 141, 142, 371 S.E.2d 823, 824 (1988). The procedural posture of the
case is not in dispute. What is in dispute is the interpretation of the controlling statute and
consequently, whether the J&DR court had jurisdiction to consider the issue of child support.
Appellant argues that the J&DR court had jurisdiction because the controlling statute provides
for an automatic remand. So, although the circuit court did not state in its withdrawal order that
the issue was remanded, “the child support case reverted to the [J&DR c]ourt and that court’s
jurisdiction was restored by operation of law.” Appellant further contends that the added
directive to the circuit court--filing of a judgment--outlined in the facilitation statute does not
“impact the automatic remand” because “[t]here was no judgment from the [circuit] court in the
2013 appeal to be filed with the [J&DR] court which was to become the judgment of the juvenile
court.” Conversely, appellee asserts that the J&DR court did not have jurisdiction to modify the
child support order. Appellee argues this on two grounds: the withdrawal order did not
explicitly remand the matter, and the circuit court did not comport with the requirements of the
facilitation statute. We reject appellant’s interpretation of the controlling statute.
The circuit court properly acquired jurisdiction over the matter on appeal pursuant to
Code § 16.1-296(A). Generally, “[o]nce the circuit court acquired jurisdiction over the
proceedings, it retained that jurisdiction as long as it did not affirmatively remand the matter to
[J&DR] court.” Austin, 42 Va. App. at 39, 590 S.E.2d at 71. Here, appellant withdrew his
appeals, and the circuit court entered its withdrawal order. The controlling statute provides that
when an appeal is withdrawn in civil cases, “the case shall be remanded to the [J&DR] court for
purposes of enforcement and future modification and shall be subject to all the requirements of
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§ 16.1-297.” Code § 16.1-106.1 (emphasis added). The plain language of the controlling statute
requires that in order to remand the matter, the “case shall be remanded” and the facilitation
statute must also be complied with. The withdrawal order did not expressly remand the case.
Pursuant to the facilitation statute, the circuit court must file a copy of “its judgment . . . with the
[J&DR] court within twenty-one days of entry of its order.” Code § 16.1-297. However, while
the facilitation statute does
direct[] the circuit court to file a copy of its final judgment with the
juvenile court[, . . . t]he language of the remainder of the statute,
providing the circuit court with discretion to remand, demonstrates
that the failure to do so does not result in the loss of jurisdiction by
the circuit court.
Austin, 42 Va. App. at 41, 590 S.E.2d at 72 (indicating that the “[i]n the event such circuit court
does not dismiss the proceedings or discharge such child or adult, the circuit court may remand
the child or adult to the jurisdiction of the juvenile court” language in Code § 16.1-297 is
permissive and not mandatory in nature). The circuit court did not file a copy of its judgment.
Because the circuit court did not state the matter was remanded in its withdrawal order, nor did it
facilitate the remand by filing a copy of its judgment with the J&DR court, that court did not
have jurisdiction over the child support matter.
Our decision in Minor v. Barrett, No. 0103-16-3, 2016 Va. App. LEXIS 263(Va. Ct. App. 2016),3 is instructive. Following a divorce proceeding, “mother had previously
filed four petitions to amend visitation . . . and father filed eight petitions to amend both custody
and visitation” in J&DR court. Id. at *4. The cases were resolved against father (the 2012
orders), and he appealed to the circuit court. “[O]nce in circuit court, father moved to nonsuit the
appeals of his own eight petitions, and moved to withdraw his appeals from mother’s four
3
At trial, DCSE improperly relied on this case to support the proposition that when a
matter is dismissed or withdrawn on appeal before circuit court, it “automatically goes back” to
the J&DR court.
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petitions.” Id. at *4-5. He then filed a complaint “in circuit court dealing only with his eight
nonsuited cases.” Id. at *5. The circuit court dismissed the complaint which father ultimately
appealed to this Court. During the pendency of father’s appeal, “mother moved to amend the
dispositional order in one of the four withdrawn appeals . . . in JDR court.” Id. The J&DR court
amended the order, which the father appealed to the circuit court, arguing that the J&DR court
“could not amend the order while the appeal of the related case was pending in this Court.” The
circuit court agreed with father.
We stated that “[w]hen a party files a notice of appeal, that notice ‘effectively transfers
jurisdiction from the lower court to the appellate court and places the named parties within the
jurisdiction of the appellate court.’” Id. at *6 (quoting McCoy v. McCoy, 55 Va. App. 524, 528,
687 S.E.2d 82, 84 (2010)). This Court then noted that Code § 16.1-298(D) stated that in the
event “an appeal to the circuit court is withdrawn in accordance with [the controlling statute], the
judgment, order, or decree rendered by the juvenile court shall have the same legal effect as if no
appeal had been noted.” Id. We found that the order mother sought to amend “was one of the
withdrawn 2012 orders, and therefore was a separate order from those at issue in the . . .
complaint and on appeal in Barrett II.” Id. Therefore, the withdrawn appeals of the 2012 orders
“became final upon their withdrawal, and thus became binding on the parties.” Id. This finding
was consistent with Barrett v. Minor, No. 0173-14-3, 2015 Va. App. LEXIS 165, at *10
(Va. Ct. App. May 12, 2015) [hereinafter Barrett II], in which we upheld “the dismissal of
father’s 2013 complaint because the withdrawn appeals barred father’s filing of the nonsuited
appeals in circuit court.” Minor, 2016 Va. App. LEXIS 263, at *6.
In Barrett II, both mother and father “treated the []complaint as a reinstitution of
appellant’s nonsuited appeals . . . , and this Court will do the same.” Barrett II, 2015 Va. App.
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LEXIS 165, at *9. This Court relied on Davis v. Cty. of Fairfax, 282 Va. 23, 710 S.E.2d 466(2011), for guidance. In Davis, the Virginia Supreme Court stated that
circuit courts in Virginia have no power to remand appeals taken
from general district courts back to the general district court from
which the appeal was taken. Rather, once a circuit court . . .
acquires appellate jurisdiction over a case, by way of an appeal of
right . . . it is required to hear the appeal de novo.
Id. at 30, 710 S.E.2d at 469. Applying Davis, this Court found that “the circuit court did ‘not
lose appellate jurisdiction’ over appellant’s nonsuited cases. Nevertheless, it is also true that
when appellant withdrew his appeals of appellee’s cases, the 2012 orders became final and
binding on the parties, thereby superseding the 2010 order that the refiled nonsuits were seeking
to modify.” Barrett II, 2015 Va. App. LEXIS 165, at *10.
In this case, the circuit court did not facilitate the remand of the child support matter. It
did not state as such in its withdrawal order, nor did it file a copy of its final judgment to the
J&DR court--although this is not fatal. When appellant withdrew his appeals, the circuit court
did not “lose” jurisdiction over the matter. Accordingly, the J&DR court did not have
jurisdiction over the child support matter. Therefore, the J&DR court’s modification order must
be vacated, and the terms of the divorce decree remain in full force and effect. Upon our de novo
review, we find that the circuit court did not err. We also deny requests for attorney’s fees and
costs.
Affirmed.
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