Sasson v. Shenhar

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Millette, JJ., and Russell, S.J.

YURI ISIDORO SASSON 1
OPINION BY
v. Record No. 072193 JUSTICE LAWRENCE L. KOONTZ, JR.
October 31, 2008
DANA SHENHAR

FROM THE COURT OF APPEALS OF VIRGINIA

Adopting and applying the Fugitive Disentitlement

Doctrine 2 for the first time in Virginia, the Court of Appeals

1
In the Court of Appeals, the case was styled as Yuri
Isidoro Sasson Moscona v. Dana Shenhar. Moscona is Sasson’s
mother’s maiden name, which, following the convention common
in Spanish-speaking countries, is appended to his given names
and paternal family name. In the pleadings in the circuit
court, the style of the case was inconsistently rendered as
either Sasson v. Shenhar or Moscona v. Shenhar. We have
adopted the style of the case as given in the notice of appeal
filed in the Court of Appeals, and in keeping with that style
we will refer to the appellant as “Sasson,” but we will refer
to the Court of Appeals’ decision as “Moscona v. Shenhar.”
2
The “Fugitive Disentitlement Doctrine” is the term most
commonly used to describe a body of case law which developed
principally in the federal courts in the late nineteenth
century beginning with Smith v. United States, 94 U.S. 97
(1876). See generally Mitchell Waldman, Annotation,
Application of “Fugitive Disentitlement Doctrine” in Federal
Civil Actions, 176 A.L.R. Fed. 333 (2002). The doctrine,
however, did not find wide application until the 1970s when
the federal courts began to broaden its application, which
formerly had been mostly limited to criminal cases. J. Eric
Smithburn, The Fugitive Disentitlement Doctrine in Hague
Convention Proceedings: An Equitable Arrow in the Judicial
Quiver in Law, Legal Culture and Politics in the Twenty First
Century, at 296 (Franz Steiner Verlag 2004). Since that time,
the doctrine has found broad acceptance in many state
of Virginia dismissed two appeals filed by Yuri Isidoro Sasson

Moscona challenging judgments of the Circuit Court of Fairfax

County in an international child custody dispute and a

contempt order arising from a petition for rule to show cause

in that case. Moscona v. Shenhar, 50 Va. App. 238, 649 S.E.2d

191 (2007). In this Court, Sasson contends that the Court of

Appeals erred in applying the doctrine to his appeals without

first considering his assertions that the circuit court did

not have personal jurisdiction over him and also lacked

subject matter jurisdiction and, thus, that the court’s orders

were void ab initio.

Sasson maintains that because void orders are a nullity,

his disobedience of those orders did not cause him to become a

“fugitive” for purposes of applying the Fugitive

Disentitlement Doctrine. Sasson further contends that even if

the Court of Appeals correctly determined that he is a

fugitive, the Court nonetheless abused its discretion in

applying the Fugitive Disentitlement Doctrine in this case

because dismissing his appeals without a consideration of the

merits constitutes an impermissible denial of due process.

jurisdictions, being applied in both criminal and civil cases,
including both domestic and international child custody cases.
See generally id.

2
 BACKGROUND

As the Court of Appeals noted at the outset of its

opinion, the facts of this case “are essentially undisputed.”

Id. at 240-41, 649 S.E.2d at 192. We will recite here only

those facts necessary to explain the context in which this

appeal arises. Sasson was born in and is a citizen of the

United Mexican States (hereinafter, “Mexico”). Dana Shenhar

was born in and is a citizen of the State of Israel and is

also a citizen of the United States of America. Sasson and

Shenhar were married in a civil ceremony in Mexico on

September 25, 1999 and subsequently had the marriage

solemnized in a religious ceremony in Israel on October 14,

1999.

On November 14, 1999, the couple moved to the State of

Florida where their only child, Ilan Samuel Sasson, was born

on March 21, 2002. On June 4, 2002, a United States passport

was issued in Ilan’s name. In July 2002, the family relocated

to Neuchâtel, Switzerland. On October 31, 2003, a Mexican

passport was issued in Ilan’s name. In September 2004, the

family again relocated to Marbella, Spain, where Sasson’s

parents lived.

At the time the family relocated to Spain, the

relationship between Sasson and Shenhar had become strained.

In October 2004, without advising Shenhar and contrary to

3
their discussed intention that their residency in Spain would

be temporary, Sasson took steps to arrange for permanent

Spanish residency for himself and, through him, for Shenhar

and Ilan.

In January 2005, Shenhar advised Sasson that she was

determined to return to the United States and that she wanted

to take Ilan with her. Sasson opposed any separation of the

family, assuring Shenhar that once his efforts to establish a

wine exporting business succeeded, the family would return to

the United States. However, despite this assurance, Sasson

immediately and without Shenhar’s knowledge secreted Ilan’s

passports and other citizenship documents in order to prevent

Shenhar from taking Ilan out of Spain.

In April 2005, Shenhar again expressed a desire to return

to the United States and acquired airline tickets for herself

and Ilan to that end. Shenhar then discovered that Sasson had

taken Ilan’s passports. Unwilling to abandon her child,

Shenhar involuntarily remained in Spain. In June 2005, Sasson

and Shenhar separated, and Shenhar retained physical custody

of Ilan.

In July 2005, Sasson assisted Shenhar in obtaining a new

Mexican passport for Ilan, which permitted her to travel with

Ilan to Israel to visit her grandfather, but which expressly

barred Ilan from entry into the United States. Later that

4
month, Sasson, who had continued his efforts to obtain

permanent residence status in Spain, filed in a Spanish court

a “Petition for the Adoption of Certain Temporary Measures

Prior to Filing for Matrimonial Separation” in which, in

effect, Sasson sought shared custody of Ilan with Shenhar, but

with Sasson having physical custody. Sasson also sought an

order from the Spanish court barring Shenhar from obtaining an

unrestricted passport for Ilan.

Over the next several months, Sasson and Shenhar’s

relationship grew increasingly acrimonious. On October 13,

2005, Shenhar applied to the American consulate for a new

passport for Ilan, alleging that Sasson had “stolen” Ilan’s

original United States passport. In an ex parte proceeding

that same day, Sasson obtained an order from the Spanish court

setting a hearing on his petition for a provisional separation

and directing that Ilan “will not be able to leave the country

without permission of both spouses, or without judicial

authorization.” Sasson did not inform Shenhar of this order,

and she was never served with any form of process from the

Spanish court. Shenhar was not aware of the court proceedings

in Spain until they were revealed in a subsequent proceeding

in Virginia.

Having obtained a new United States passport for Ilan,

Shenhar left Spain with him on or about October 21, 2005,

5
taking up residence in Fairfax County where her parents

resided. Shenhar did not advise Sasson of her intention to

take Ilan to the United States and did so without his

knowledge or authorization. On October 24, 2005, Sasson filed

for divorce from Shenhar in a Spanish court. On the following

day, Sasson filed a request for an order directing that Ilan

be returned to Spain with the Spanish Ministry of Justice, the

“Central Authority” which administers the Hague Convention of

the Civil Aspects of International Child Abduction, Oct. 25,

1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 98 (hereinafter,

“Hague Convention”) in Spain.

On November 8, 2005, Sasson, by counsel, filed a petition

in the Fairfax County Juvenile and Domestic Relations District

Court (hereinafter, “J&DR court”) seeking Ilan’s return to

Spain under the International Child Abduction Remedies Act

(ICARA), 42 U.S.C. § 11601, et seq. (2000 & Supp. V 2005), the

implementing legislation for the Hague Convention in the

United States (“Hague Convention petition”). Sasson also

filed a petition pursuant to Code § 20-146.29 for enforcement

of a custody order entered in the Spanish court and a motion

pursuant to Code § 20-146.32 to permit him to take physical

custody of Ilan until the other matters were resolved. All

three petitions were docketed as a single action on the J&DR

court’s docket.

6
 On November 9, 2005, Shenhar filed a bill of complaint

for separate maintenance in the Circuit Court of Fairfax

County. Concurrent with her bill of complaint, Shenhar filed

an ex parte petition for custody of Ilan and sought an order

prohibiting his removal from Virginia. The following day, the

circuit court issued a pendente lite order granting Shenhar

temporary legal and physical custody of Ilan and directing

that the child not be removed from Virginia.

On November 14, 2005, the J&DR court entered an order

setting a hearing on Sasson’s petitions for November 21, 2005

and directing in the interim that Shenhar give physical

custody of Ilan to Sasson or Sasson’s parents, who evidently

had come from Spain to Virginia, and further directing that

Ilan was to remain in Virginia pending the hearing. Sasson

arrived in the United States on November 15, 2005. On

November 18, 2005, Shenhar entered a “special appearance” in

the J&DR court, contesting its jurisdiction based upon her

superseding petition for separate maintenance and custody in

the circuit court. The J&DR court entered a stay of the

proceedings on Sasson’s petitions pending action by the

circuit court on Shenhar’s request for custody in that court.

Subsequently, the circuit court entered an order

referring the issue of the custody of Ilan brought under

Shenhar’s bill of complaint for separate maintenance to the

7
J&DR court. On January 18, 2006, the J&DR court was advised

by the federal government that Sasson had applied to the

United States Central Authority, the agency designated by

ICARA to administer the Hague Convention in the United States

under 42 U.S.C. § 11606, for an order returning Ilan to his

custody. 3 On January 24, 2006, the J&DR court entered an order

pursuant to Sasson’s Hague Convention petition ordering the

return of Ilan to Sasson’s custody and permitting Sasson to

return to Spain with Ilan. The J&DR court took no action on

Sasson’s other petitions or on the custody issue arising under

Shenhar’s separate maintenance complaint referred to it by the

circuit court.

On January 27, 2006, Shenhar noted her appeal of the J&DR

court’s decision to the circuit court pursuant to Code § 16.1-

296(A). On May 8 and 9, 2006, the circuit court conducted an

evidentiary hearing limited to the issue of whether Sasson was

entitled to the relief sought under his Hague Convention

3
The United States Central Authority functions only as an
administrative agency, communicating with similar bodies in
other signatory countries concerning court decisions on
matters falling within the jurisdiction of the Hague
Convention. The Central Authority does not have the power to
order the return of a child, which can only be ordered by a
court, but can provide assistance to a parent seeking return
of a child. See 22 C.F.R. § 94.6 (2006).

8
petition. Sasson’s counsel participated fully in this

hearing, acknowledging at the outset that Shenhar had a right

to seek the appeal de novo. Sasson was present at the hearing

and testified. The principal issue in dispute at this hearing

was whether Ilan was a “habitual resident” of Spain as that

term is defined in the Hague Convention, thus giving that

country primary jurisdiction over the issue of Ilan’s custody. 4

On June 16, 2006, the circuit court issued an opinion

letter that gave a thorough and authoritative review of the

relevant facts and law. As pertinent to the subsequent events

that led to Sasson’s appeal to the Court of Appeals, the court

determined that Sasson had not met the burden placed upon him

by the Hague Convention to establish that Ilan was “habitually

resident” in Spain. Accordingly, the court ruled that Sasson

was not entitled to seek the return of Ilan to Spain on that

basis. By an order entered contemporaneously with the opinion

letter, the court ruled that the J&DR court’s order for return

of Ilan to Spain was “vacated.” The court did not, however,

4
Shenhar also contested Sasson’s right of custody,
asserting that the order of the Spanish court awarding him
custody of Ilan was invalid. The circuit court found,
however, that under Spanish law Sasson held “rights of
custody” as defined by the Hague Convention without the need
to resort to the court order.

9
order physical custody of Ilan to be returned to Shenhar at

that time.

On June 28, 2006, the circuit court conducted a hearing

at the outset of which the trial judge, noting that Sasson had

filed renewed motions relevant to the custody proceeding

arising from Shenhar’s petition for separate maintenance,

clarified that the only issue before the court was the

resolution of additional matters under the appeal of the J&DR

court’s judgment regarding Sasson’s Hague Convention petition. 5

At that hearing, the court was made aware that Sasson and Ilan

had returned to Spain. The court entered an order directing

that Sasson “shall immediately return Ilan Samuel Sasson to

the United States, not later than July 12, 2006.” 6 Although

this order expressly denoted that that it “is not a final

5
On September 15, 2006, the circuit court heard argument
on Sasson’s motion to dismiss the custody proceeding arising
from Shenhar’s complaint for separate maintenance. At the
conclusion of the hearing, the court denied the motion as
moot, ruling that the custody case had merged with Sasson’s
Hague Convention petition case. We express no opinion on the
merits of that ruling.
6
The record does not clearly establish when Sasson and
Ilan returned to Spain, though, as indicated above, Sasson was
present for the hearing conducted on May 8 and May 9, 2006.
However, it is not disputed that Ilan was in Spain in his
father’s physical custody when the circuit court entered the
order directing that Ilan be returned to the United States.

10
order,” on July 6, 2006 Sasson filed a notice of appeal

contending that the June 16, 2006 and June 28, 2006 orders

“did all things which could lawfully be done within the scope

of this Hague Child Abduction Convention case” and, thus, the

matter was ripe for appeal.

On July 24, 2006, Shenhar filed a petition seeking a rule

to show cause against Sasson, alleging that he had failed to

obey the June 28, 2006 order to return Ilan to the United

States. On July 26, 2006, the circuit court issued a rule to

show cause requiring Sasson to appear on September 1, 2006 to

answer the allegations of Shenhar’s petition. On August 28,

2006, the court continued the hearing on the rule to show

cause to October 12, 2006 on Shenhar’s motion in order to

attempt to obtain personal service on Sasson in Spain after

his Virginia counsel had “declined to accept personal service

on behalf of his client.” 7

The circuit court issued a second rule to show cause

against Sasson on September 5, 2006. A Spanish notary public

7
During this time, however, Sasson’s counsel continued to
appear before the circuit court by brief and in person to
contest Shenhar’s claim for attorney’s fees and to address a
challenge to the continuing jurisdiction of the court over
such matters following the filing of the notice of appeal.
Sasson’s counsel asserted, however, that he was “appearing
specially.”

11
attempted to serve process on Sasson, but, when Sasson did not

come to his door, the notary public delivered the papers to

the concierge of Sasson’s apartment building.

Sasson did not attend the October 12, 2006 hearing on the

rule to show cause. At the hearing, Sasson’s counsel

contended that the service on the concierge did not comply

with Virginia law and additionally proffered that Sasson could

not appear because the Spanish courts had possession of his

passport under a Hague Convention proceeding in that country.

The circuit court ruled that the service of the rule to show

cause comported with both Virginia and Spanish law. In an

order dated October 17, 2006, the court found Sasson in

contempt for not returning Ilan to the United States as

ordered, issued a capias for his arrest, and imposed a fine of

$1,000 a day for each additional day Ilan was not returned to

this country.

On October 20, 2006, Sasson filed a motion for

reconsideration of the finding of contempt, asserting that the

circuit court lacked the authority under the Hague Convention

to enter the June 28, 2006 order and, thus, erred in finding

that Sasson was in contempt of that order. The court denied

Sasson’s motion. On November 13, 2006, Sasson filed a notice

of appeal of the October 17, 2006 contempt order, asserting

therein that he was also seeking to appeal the June 16, 2006

12
order denying his Hague Convention petition and the June 28,

2006 order directing him to return Ilan to the United States.

On December 1, 2006, Shenhar filed a motion to dismiss

Sasson’s appeal in the Court of Appeals. 8 As relevant to the

issues ultimately addressed by the Court, Shenhar contended

that the Court should not hear the appeal because Sasson was a

fugitive based upon his disobedience of the circuit court’s

order directing him to return Ilan to the United States and

the subsequent finding of contempt. Sasson filed a response

to Shenhar’s motion to dismiss asserting, relevant to her

argument that the Court should dismiss his appeal because he

was a fugitive, that the circuit court had lacked authority

under the Hague Convention to enter the June 28, 2006 order

and, thus, as he had argued in the circuit court, that he

could not be in contempt of an order that was beyond the power

of the court to enforce.

After the appeals were fully briefed and argued, 9 the

Court of Appeals issued an opinion limited to addressing

8
Shenhar had previously filed a motion to dismiss on
November 3, 2006 addressed only to the appeal arising from the
notice of appeal filed following the entry of the June 28,
2006 order.
9
The parties filed separate briefs on the merits of each
appeal arising from the two notices of appeal filed by Sasson;

13
Shenhar’s assertion that Sasson’s disobedience of the July 28,

2006 order and his subsequent failure to appear in response to

the rule to show cause permitted the Court to refuse to allow

him to “seek relief from the same judicial system whose

authority he evades.” Moscona, 50 Va. App. at 240, 649 S.E.2d

at 192. The Court first noted that Virginia’s appellate

courts had not yet adopted the Fugitive Disentitlement

Doctrine in any prior case, but, after extensively recounting

the development of that doctrine, the Court “accept[ed] the

validity of the doctrine” and held that it could be applied

“in appropriate circumstances.” Id. at 253, 649 S.E.2d at

198. Finding that “the connection between Sasson’s fugitive

status and his appeals is direct and undeniable,” id., the

Court of Appeals held that “[d]ismissing Sasson’s appeals

furthers the goals of the fugitive disentitlement doctrine by

discouraging flight from justice, encouraging compliance with

court orders, and promoting the efficient, dignified operation

of the courts.” Id. at 254, 649 S.E.2d at 199. We awarded

Sasson this appeal from the judgment of the Court of Appeals.

however, the Court of Appeals consolidated the appeals for
oral argument and rendered a single opinion. Moscona, 50 Va.
App. at 240, 649 S.E.2d at 192.

14
 DISCUSSION

We begin our discussion by noting that Sasson does not

directly challenge the determination of the Court of Appeals

that the Fugitive Disentitlement Doctrine may be applied in

Virginia in an appropriate case. Although this Court has not

previously been presented with a case in which it was asserted

that a litigant’s status as a fugitive should bar him from

bringing his appeal, we agree with the Court of Appeals that

the doctrine has attained wide acceptance such that “ ‘it has

been settled for well over a century that an appellate court

may dismiss the appeal of a defendant who is a fugitive from

justice during the pendency of his appeal.’ " Moscona, 50 Va.

App. at 249, 649 S.E.2d at 196 (quoting Ortega-Rodriguez v.

United States, 507 U.S. 234, 239 (1993)). Moreover, as the

Court of Appeals recognized, we have consistently held that

“ ‘sanctions can be used to protect courts against those who

would abuse the judicial process.’ ” Id. at 253, 649 S.E.2d

at 198 (quoting Oxenham v. Johnson, 241 Va. 281, 286, 402

S.E.2d 1, 3 (1991)).

Accordingly, we hold that the Fugitive Disentitlement

Doctrine may be applied in appropriate cases whenever a court

of this Commonwealth in the exercise of sound judicial

discretion deems it necessary to protect the dignity and power

of the court from abuse by a litigant. It is not necessary to

15
repeat here the lengthy and authoritative discussion of the

doctrine’s development and application found in the Court of

Appeals’ opinion. Id. at 249-53, 649 S.E.2d at 196-98.

However, we will summarize the essential elements of the

considerations a court must undertake before imposing the

severe sanction of denying a litigant access to the court.

Cf. Switzer v. Switzer, 273 Va. 326, 333-34, 641 S.E.2d 80, 84

(2007) (holding that the Court of Appeals erred in dismissing

an appeal brought by a litigant on the ground that he had not

paid a sanction imposed in a prior, unrelated appeal); see

also Matsumoto v. Matsumoto, 792 A.2d 1222, 1233 (N.J. 2002)

(holding in a Hague Convention case that “[w]hat is crucial is

the inquiry into whether an alternative short of dismissal

will render enforcement of the underlying judgment certain and

remove the risk of prejudice to the fugitive's adversary”).

In order to ensure that a dismissal of an appeal is

imposed only in those cases where no lesser sanction or remedy

is available, courts generally use a three-part test to

determine whether the Fugitive Disentitlement Doctrine should

be applied to bar an appeal. In order to employ the doctrine,

the following elements are required: (1) the appellant must be

a fugitive, (2) there must be a nexus between the current

appeal and the appellant’s status as a fugitive, and (3)

dismissal must be necessary to effectuate the policy concerns

16
underlying the doctrine. See, e.g., Walsh v. Walsh, 221 F.3d

204, 215 (1st Cir. 2000); Magluta v. Samples, 162 F.3d 662,

664 (11th Cir. 1998); Atkinson v. Taylor, 277 F. Supp. 2d 382,

385 (D. Del. 2003). Moreover, when deciding to apply the

doctrine, courts must exercise “restraint,” and its use must

“be a reasonable response to the problems and needs that

provoke it.” Degen v. United States, 517 U.S. 820, 823–24

(1996). We agree with these principles and, accordingly,

approve their application in this Commonwealth.

Guided by these principles, we now turn to address

Sasson’s contention that the Court of Appeals erred in finding

that he is a “fugitive” under the first part of the three-part

test for applying the Fugitive Disentitlement Doctrine.

Sasson contends that, before finding that he is a fugitive,

the Court of Appeals initially should have considered his

assertion that the circuit court did not have jurisdiction

under the Hague Convention and ICARA to order the return of

Ilan from Spain to the United States. Sasson contends that

this is so because he could not be a fugitive from what he

characterizes as a void order, nor could his failure to appear

at the show cause hearing cause him to become a fugitive,

since there is no contempt in the disobedience of a void

order. In effect, Sasson is asserting that the Court of

Appeals could not find that he was a fugitive without first

17
considering the merits of his claim that the circuit court’s

order was void and, thus, that his disobedience of that order

was justifiable. Because we disagree with Sasson’s premise

that a potentially void order need not be obeyed, we also

disagree with his contention that the Court of Appeals could

not find that he was a fugitive without first determining

whether the June 28, 2006 order was in fact legally void.

“ ‘It is, of course, well settled that disobedience of,

or resistance to a void order, judgment, or decree is not

contempt.’ ” Leisge v. Leisge, 224 Va. 303, 306, 296 S.E.2d

538, 540 (1982) (quoting Robertson v. Commonwealth, 181 Va.

520, 536, 25 S.E.2d 352, 358 (1943)). This does not mean,

however, that a party cannot become a fugitive as a result of

the unilateral decision to disobey an order the party asserts

to be void. To the contrary, “an order issued by a court with

jurisdiction over the subject matter and person must be obeyed

by the parties until it is reversed by orderly and proper

proceedings.” Local 333B, United Marine Div. of Int’l

Longshoremen’s Ass’n v. Commonwealth, 193 Va. 773, 783-84, 71

S.E.2d 159, 165-66 (1952) (quoting United States v. United

Mine Workers, 330 U.S. 258, 293 (1947)). “A dissatisfied

litigant should challenge the correctness of an adverse

judgment or ruling by an appeal and not by disobedience of

such order or by interfering with or obstructing the judicial

18
processes.” Potts v. Commonwealth, 184 Va. 855, 861, 36

S.E.2d 529, 531 (1946); accord Leisge, 244 Va. at 307 n.2, 296

S.E.2d 540 n.2; Robertson, 181 Va. at 537-38, 25 S.E.2d at

359.

In Leisge, under facts somewhat analogous to the

circumstances of this case, we acknowledged the principle that

even where a party maintains that an order of a court is void,

the appropriate action to take is to appeal that order, or to

attack it in a collateral proceeding, while still submitting

to the court’s jurisdiction. Leisge, 244 Va. at 306, 296

S.E.2d at 540. Thus, in Leisge we upheld a finding of

contempt against a father who had, in disobedience of a court

order, refused to return a child to Virginia from another

state and instead instituted custody proceedings in that

state. On appeal, the father contended that he could not be

held in contempt of the order to return the child to Virginia

because the circuit court had not afforded him due process in

the original proceeding in which custody was awarded to the

mother and, thus, the subsequent order was void. We held that

because the father had appealed the original custody order and

that order had been affirmed, he was foreclosed from

relitigating the validity of the order. Id. at 306-07, 296

S.E.2d at 540.

19
 The record in this case is undeniably clear that Sasson,

through his counsel, elected to bring his Hague Convention

petition in the J&DR court while being fully cognizant that

any final judgment of that court in his favor would be subject

to Shenhar’s right to an appeal de novo to the circuit court. 10

10
Although the Court of Appeals referenced Code § 16.1-
136, see 50 Va. App. at 254, 649 S.E.2d at 199, which
expressly provides for appeals to be heard de novo in cases
originally decided in the general district courts, appeals
from the J&DR courts are governed by Code § 16.1-296. In
Walker v. Department of Public Welfare, 223 Va. 557, 562-63,
290 S.E.2d 887, 890 (1982), we held that appeals brought under
Code § 16.1-296 are to be heard de novo in the circuit court.
When we decided Walker, Code § 16.1-296 provided that appeals
from a final judgment of the J&DR courts were to be “taken in
accordance with the provisions of Chapter 7 (§ 16.1-123 et
seq.) of Title 16.1.” 223 Va. at 562-63, 290 S.E.2d at 890.
In 1993, the General Assembly amended Code § 16.1-296,
eliminating the cross-reference to Chapter 7 of Title 16.1.
1993 Va. Acts ch. 970. Nonetheless, the Virginia appellate
courts have continued to recognize that appeals from the J&DR
courts are to be heard de novo in the circuit courts. See,
e.g., Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465, 473,
666 S.E.2d 361, 364 (2008)(custody); Williams v. Williams, 256
Va. 19, 30 n.2, 501 S.E.2d 417, 423 n.2 (1998) (visitation);
Fairfax County Dep’t. of Family Servs. v. D.N., 29 Va. App.
400, 406, 512 S.E.2d 830, 832-33 (1999). The traditional form
of appellate review in these cases has long been a de novo
circuit court review of J&DR court proceedings. See Judicial
Council of Virginia, Report to the General Assembly and the
Supreme Court of Virginia: Adjudication of Family Law Matters
16 (1985) (de novo appeal process for review of decisions of
the J&DR court had existed for “more than a third of a
century” as of 1985). Accordingly, except as altered by the
provisions of Code § 16.1-298 regarding the status of the
judgment of the J&DR court upon the filing of a petition or
during the pendency of an appeal, we are of opinion that the
appeal is to be heard de novo in the circuit court.

20
Code § 16.1-296(A), in pertinent part, provides that: “From

any final . . . judgment of the juvenile court affecting the

rights or interests of any person coming within its

jurisdiction, an appeal may be taken within 10 days from the

entry of a final judgment.” We recognize that, absent an

order of stay being entered, Shenhar’s appeal of the J&DR

court’s judgment transferring custody of Ilan to Sasson did

not result in that judgment being suspended during the

pendency of her appeal in the circuit court. See Code § 16.1-

298. Nonetheless, to accept the assertion that because the

judgment of the J&DR court remained in effect during the

pendency of Shenhar’s appeal, Sasson could leave Virginia with

Ilan and thereafter refuse to recognize the continuing

jurisdiction of Virginia’s courts over the case, would be

inconsistent with and effectively defeat the appeal of right

afforded by Code § 16.1-296.

Although the record does not disclose the exact date on

which Sasson and Ilan returned to Spain, it is irrelevant

whether that event occurred during the three-day period

between the J&DR court’s judgment being rendered and Shenhar’s

noting her appeal or afterward. Sasson was aware that the

judgment of the J&DR court was subject to being appealed for

up to 10 days following its entry, that such an appeal would

result in a new proceeding on his Hague Convention petition,

21
and that the result of that proceeding might differ from that

arrived at in the J&DR court. Accordingly, when Sasson

elected to return Ilan to Spain, his reliance on the J&DR

court’s judgment as a final disposition of his Hague

Convention petition was not justified.

Shenhar’s appeal brought both the parties and the subject

matter of the case properly before the circuit court.

Sasson’s decision to physically remove Ilan from Virginia

could not, and did not, divest the circuit court of

jurisdiction over the case or over Sasson. Thus, while we

will express no opinion on the issue, even if we were to agree

with Sasson that the circuit court subsequently exceeded its

jurisdiction by ordering him to return Ilan from Spain to the

United States, Sasson’s recourse was to seek an appeal of that

decision on that ground. Moreover, the record in this case is

clear that Sasson submitted to the jurisdiction of the courts

of the Commonwealth and made repeated submissions, has

disobeyed orders of these courts when the rulings were adverse

to him, has expressly been held in contempt, was given time to

comply, and thereafter process for his arrest has been issued.

He has neither surrendered nor complied with the various

orders, and thus remains a fugitive in every sense required in

the particular context of this litigation. For these reasons,

we hold that the Court of Appeals did not err in holding,

22
without consideration of Sasson’s assertion that the June 28,

2006 order was void ab initio, that Sasson’s status as a

fugitive was sufficiently established in this case for

purposes of applying the Fugitive Disentitlement Doctrine.

We turn now to consider Sasson’s assertion that even if

the Court of Appeals did not err in concluding that he was a

fugitive, the Court nonetheless erred in holding that the

Fugitive Disentitlement Doctrine should be applied in this

case. Essentially, Sasson contends that the denial of his due

process right to have the merits of the circuit court’s

judgment reviewed would interfere with his fundamental

interest as a parent in the custody of his child and, thus,

the sanction of denying him that right by application of the

doctrine is too severe to warrant its application in such

case. We disagree.

Sasson’s contention that the doctrine ought not be

applied in this case because its application denies him the

right to have his appeals considered on the merits is nothing

more than an assertion that the Court of Appeals erred in

holding that this was an appropriate case in which to apply

the doctrine. We review the judgment of the Court of Appeals

to apply the doctrine in this case by determining whether the

criteria for its application have been met, and we do so under

23
an abuse of discretion standard. See, e.g., Bagwell v.

Dretke, 376 F.3d 408, 413 (5th Cir. 2004).

We have already demonstrated that Sasson is a fugitive,

thus satisfying the first part of the test for applying the

doctrine. We next consider whether there is a sufficient

nexus between the issues raised in Sasson’s appeal in the

Court of Appeals and his status as a fugitive to warrant

application of the doctrine.

As the Court of Appeals noted, in Walsh, for example, the

United States Court of Appeals for the First Circuit declined

to apply the Fugitive Disentitlement Doctrine in a Hague

Convention case where there was no impairment of the other

party’s parental rights by the appellant’s fugitive status

and, thus, there was an insufficient nexus to satisfy the

second part of the test for applying the doctrine. Moscona,

50 Va. App. at 255, 649 S.E.2d at 199 (quoting Walsh, 221 F.3d

at 216). In this case, by wrongfully taking Ilan to Spain,

Sasson has clearly interfered with Shenhar’s parental rights. 11

Thus, there can be no question that there is a sufficient

11
Even to the extent that the record might show that
Shenhar has been able to visit Ilan in Spain, as Sasson
contends, nothing in the record supports a conclusion that she
is able to return with him to the United States without
Sasson’s consent.

24
nexus between Sasson’s status as a fugitive and the issues he

sought to have reviewed in the Court of Appeals.

Finally, the record amply supports the Court of Appeals’

determination that Sasson is unwilling to submit to the

jurisdiction of Virginia’s courts unless he receives a

judgment in his favor. Under such circumstances, the policy

concerns underlying the doctrine warrant its application in

this case because, as the Court of Appeals found,

“[d]ismissing Sasson’s appeals furthers the goals of the

fugitive disentitlement doctrine by discouraging flight from

justice, encouraging compliance with court orders, and

promoting the efficient, dignified operation of the courts.”

Id. (citing Degen, 517 U.S. at 824; Jaffe v. Accredited Sur. &

Cas. Co., 294 F.3d 584, 596 (4th Cir. 2002)). Accordingly, we

cannot say that the Court of Appeals abused its discretion in

determining that Sasson had forfeited his right to appeal the

judgments of the circuit court by willfully becoming a

fugitive.

CONCLUSION

For these reasons, we will affirm the judgment of the

Court of Appeals dismissing Sasson’s appeals in that Court

with prejudice.

Affirmed.

25