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