Mahoney v. Mahoney

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Humphreys and
Clements
Argued at Richmond, Virginia

MICHAEL A. MAHONEY, SR.
OPINION BY
v. Record No. 2949-98-4 JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 5, 2000
JEANNE M. MAHONEY

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge

John M. DiJoseph (Kavrukov & DiJoseph, on
brief), for appellant.

John R. Angus (Weiner, Weiner & Weiner,
P.C., on briefs), for appellee.

Amicus Curiae: Commonwealth of Virginia,
Department of Social Services, Division of
Child Support Enforcement (Mark L. Earley,
Attorney General; Ashley L. Taylor, Deputy
Attorney General; Robert B. Cousins, Jr.,
Senior Assistant Attorney General; Craig M.
Burshem, Regional Special Counsel; Jason P.
Cooley, Special Counsel; Jack A. Maxwell,
Special Counsel; Gary Webb, Special Counsel;
William K. Wetzonis, Special Counsel, on
brief), for appellee.

On April 4, 2000, a divided panel of this Court reversed

and remanded the trial court's dismissal of Michael A. Mahoney's

appeal from a judgment of the juvenile and domestic relations

district court. We granted appellee's petition for a rehearing

en banc and stayed the mandate of that decision. Upon rehearing
en banc, we hold the trial court did not err in its ruling that

upon failure to post an appeal bond fixed under Code

§ 16.1-296(H), appellant's appeal must be dismissed. Therefore,

we affirm the decision of the trial court.

ANALYSIS

Guided by well-settled principles, we review the evidence

on appeal in the light most favorable to the party prevailing

below. On August 28, 1998, the Arlington Juvenile and Domestic

Relations District Court (J&DR) found appellant, Michael Mahoney

(father), in civil contempt of court on Jeanne Mahoney's Rule to

Show Cause which was issued against the father for failing to

comply with court-ordered support, both child and spousal, as

well as medical bills and attorney's fees. The court entered

judgment against father in the amount of $151,902.52, the amount

in arrears due to mother. On appeal to the circuit court,

father characterized the appeal as one challenging the

"jurisdiction of the Court [to] enter any orders and the

validity of all orders entered in this case based on fraud." He

specifically noted his intention not to appeal the amounts of

support found due and owing. Bond was fixed at $165,888.62 by

the juvenile court. When no bond was posted, the circuit court

dismissed father's appeal upon mother's motion. The court's

order of dismissal was appealed to this Court. We affirm the

circuit court's decision on the grounds that follow.

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 Code § 16.1-296(H) provides, in pertinent part:

No appeal bond shall be required of a party
appealing from an order of a juvenile and
domestic relations district court except for
that portion of any order or judgment
establishing a support arrearage or
suspending payment of support during pendency
of an appeal. In cases involving support, no
appeal shall be allowed until the party
applying for the same or someone for him
gives bond, in an amount and with sufficient
surety approved by the judge or by his clerk
if there is one, to abide by such judgment as
may be rendered on appeal if the appeal is
perfected or, if not perfected, then to
satisfy the judgment of the court in which it
was rendered. Upon appeal from a conviction
for failure to support or from a finding of
civil or criminal contempt involving a
failure to support, the juvenile and domestic
relations district court may require the
party applying for the appeal or someone for
him to give bond . . . . An appeal will not
be perfected unless such appeal bond as may
be required is filed within thirty days from
the entry of the final judgment or order.

(Emphasis added). Mahoney contends the circuit court erroneously

dismissed his appeal de novo because he limited his appeal to a

challenge of the court's jurisdiction. He reasons that, having

specifically excluded from his notice of appeal the juvenile

court's establishment of a support arrearage and its finding of

contempt, he was not required to post an appeal bond under Code

§ 16.1-296(H). We disagree.

Mahoney's challenge to the validity of "all orders entered"

by the juvenile court, and to the authority of the court to enter

any such orders, necessarily and logically implicates a challenge

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to the subject of the orders entered by the juvenile court. In

this case, the order Mahoney appealed from the juvenile court to

the circuit court established a support arrearage he owed to his

former wife. Thus, Mahoney's appeal from the juvenile court's

order was necessarily subject to the jurisdictional requirement of

Code § 16.1-296(H), which requires an appeal bond "for that

portion of any order establishing a support arrearage."

In addition, not only is the substantive issue of support

arrearages logically related to, and inherent in, Mahoney's

challenge to the jurisdiction of the court and the claimed

invalidity of "all orders entered," but the law governing

appeals from courts not of record also provides a well

established legal foundation for the imposition of bond. An

appeal from a court not of record is tried de novo. See Code

§§ 16.1-106, 16.1-113; Copperthite Pie Corp. v. Whitehurst, 157

Va. 480, 488, 162 S.E. 189, 191 (1932) (citing Southern Ry. Co.

v. Hill, 106 Va. 501, 505, 56 S.E. 278, 280 (1907)); see also

Hailey v. Dorsey, 580 F.2d 112, 114 (4th Cir. 1978), cert.

denied, 440 U.S. 937 (1979). Such an appeal transfers the

entire record to the circuit court for retrial as though the

case had been originally brought there. See Addison v. Salyer,

185 Va. 644, 650, 40 S.E.2d 260, 263 (1946). Upon transfer, the

order and judgment of the lower court are annulled. See Ragan

v. Woodcroft Village Apts., 255 Va. 322, 327, 497 S.E.2d 740,

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742 (1998) (citing Nationwide Mut. Ins. Co. v. Tuttle, 208 Va.

28, 32, 155 S.E.2d 358, 361 (1967)).

It follows that because no case or judgment exists in the

lower court, and because the circuit court upon appeal acts as the

tribunal of original jurisdiction, it must address and dispose of

all issues raised by the petitioner in the lower court. See

Addison, 185 Va. at 649, 40 S.E.2d at 263 ("'A court which hears a

case de novo . . . acts not as a court of appeals but as one

exercising original jurisdiction.'" (quoting Gemmell, Inc. v. Svea

Fire Ins. Co., 166 Va. 95, 98, 184 S.E. 457, 458 (1936))).

Specifically, the circuit court must decide both the issue of

jurisdiction and the issue of arrearages, because no judgment on

arrearages exists once the matter is appealed from the lower

tribunal. 1

1
For example, if jurisdiction is found to exist on appeal,
the circuit court must determine arrearages. It is reversible
error to permit the judgment of the lower court to be introduced
as evidence in the case and no other judgment on the issues is
extant, because that of the lower court is annulled. See
Gravely v. Deeds, 185 Va. 662, 664, 40 S.E.2d 175, 176 (1946);
see also Nationwide, 208 Va. at 33, 155 S.E.2d at 361-62.
Conversely, if the circuit court finds no jurisdiction exists,
the case must be dismissed and no arrearages established.
Moreover, that the party bringing the appeal prevails in the
trial de novo is insufficient to avoid the dictate of Code
§ 16.1-296(H) that "no appeal shall be allowed unless and until
a bond is given by the party applying for the appeal."
Commonwealth ex rel. May v. Walker, 253 Va. 319, 322, 485 S.E.2d
134, 136 (1997). In fact, the circuit court does not even have
jurisdiction to hear the case unless the appeal bond is posted.
See id. at 323, 485 S.E.2d at 136 ("[T]he failure to post an
appeal bond . . . is a fatal jurisdictional defect . . . .").

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 The policy underlying the requirement of appeal bonds is

clear. An appeal bond provides assurances that any judgment that

may be rendered on appeal, if perfected, will be satisfied. See

Code § 16.1-107; Hutchins v. Carillo, 27 Va. App. 595, 606, 500

S.E.2d 277, 282 (1998) (noting that "the essential function of an

appeal bond [is] 'to protect the [appellee] against any loss or

damage he may sustain by reason of the suspension of his right to

proceed with the collection of his judgment against the

[appellant]'" (quoting Jacob v. Commonwealth ex rel. Myers, 148

Va. 236, 242, 138 S.E. 574, 576 (1927))). Such bonds also provide

assurances in cases in which an appeal is not perfected that the

judgment of the court in which it was rendered will be satisfied.

See id. Indeed, the policy considerations underlying the need for

bond upon appeal from the lower court are so material to the

statutory scheme reflected in Code § 16.1-296(H) that the failure

to post the required bond will constitute reversible error even

when the appellant prevails in the trial de novo. See

Commonwealth ex rel. May v. Walker, 253 Va. 319, 323, 485 S.E.2d

134, 136-37 (1997).

In summary, we hold that the JD&R order from which appellant

appealed addressed only one subject, viz., that of support

arrearages. 2 As such, Mahoney's failure to post bond under Code

2
We do not address in this opinion the applicability of
Code § 16.1-296(H) to an order which addresses multiple,
independent issues unrelated to the issue of support.

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§ 16.1-296(H) was fatal to his appeal. We accordingly affirm the

decision of the trial court to dismiss his appeal.

Affirmed.

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Benton, J., dissenting.

In pertinent part, Code § 16.1-296(H) provides as follows:

No appeal bond shall be required of a
party appealing from an order of a juvenile
and domestic relations district court except
for that portion of any order or judgment
establishing a support arrearage or
suspending payment of support during
pendency of an appeal. In cases involving
support, no appeal shall be allowed until
the party applying for the same or someone
for him gives bond, in an amount and with
sufficient surety approved by the judge or
by his clerk if there is one, to abide by
such judgment as may be rendered on appeal
if the appeal is perfected or, if not
perfected, then to satisfy the judgment of
the court in which it was rendered. Upon
appeal from a conviction for failure to
support or from a finding of civil or
criminal contempt involving a failure to
support, the juvenile and domestic relations
district court may require the party
applying for the appeal or someone for him
to give bond, with or without surety, to
insure his appearance and may also require
bond in an amount and with sufficient surety
to secure the payment of prospective support
accruing during the pendency of the appeal.
An appeal will not be perfected unless such
appeal bond as may be required is filed
within thirty days from the entry of the
final judgment or order.

Although the statute clearly states that "[i]n cases involving

support, no appeal shall be allowed until the party applying for

the same or someone for him gives bond," in equally clear

language the statute begins by stating that "[n]o appeal bond

shall be required . . . except for that portion of any order or

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judgment . . . establishing a support arrearage." Id. (emphasis

added).

By its explicit terms, the statute removes
the requirement for posting a bond except as
provided in the statute. The provision
specifying that a bond shall be required for
an appeal of a judgment establishing support
arrearages implicitly recognizes that an
order that sets arrearages may have a
component that does not establish a support
arrearage. In such a case, an appeal bond
is required only for "that portion of any
order . . . establishing a support
arrearage."

Avery v. Commonwealth, 22 Va. App. 698, 700, 472 S.E.2d 675, 676

(1996) (citation omitted). I would hold that Michael A.

Mahoney's appeal of the "jurisdiction of the Court [to] enter

any order" is not an appeal of a "portion of any order or

judgment establishing a support arrearage."

When Mahoney appealed the judgment to the circuit court, he

wrote on the notice of appeal that he "appeals jurisdiction of

the Court [to] enter any orders and the validity of all orders

entered in this case based on fraud" and that "[h]e is not

appealing amounts of support." (Additional emphasis added).

Consistent with his notation on the notice of appeal, Mahoney

informed the trial judge during the hearing that he was "not

appeal[ing] the amount of support" but was "appeal[ing] . . .

the lack of subject matter jurisdiction by the [juvenile and

domestic relations district] court." Specifically, Mahoney

alleged that the juvenile court never acquired jurisdiction

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under the Uniform Child Custody Jurisdiction Act or the Uniform

Interstate Family Support Act. Ruling that a party "can't

piecemeal the appeal," the trial judge apparently recognized

that Mahoney's challenge was not to any portion of the judgment

but to the power of the court to render any judgment.

Nevertheless, the trial judge granted the motion to dismiss.

In my opinion, Mahoney's appeal is not subject to the

appeal bond requirement because it is not an appeal from "that

portion of any order or judgment establishing a support

arrearage." Code § 16.1-296(H). A judgment entered by a court

when it lacks subject matter jurisdiction is void, and that

judgment is subject to a challenge at any time. Morrison v.

Bestler, 239 Va. 166, 170, 387 S.E.2d 753, 755-56 (1990). In

addition, a party may challenge a judgment on the basis of a

court's failure to abide by mandatory statutory requirements.

In this regard, the Supreme Court has held that "[a] court's

authority to exercise its subject matter jurisdiction over a

case may be restricted by a failure to comply with statutory

requirements that are mandatory in nature and, thus, are

prerequisite to a court's lawful exercise of that jurisdiction."

Dennis Moore v. Commonwealth, 259 Va. 405, 409, 527 S.E.2d 415,

417 (2000). Such a failure renders the court without

jurisdiction to act and renders the judgment void. See David

Moore v. Commonwealth, 259 Va. 431, 439, 527 S.E.2d 406, 410

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(2000). Mahoney's appeal directly challenges the juvenile

court's power to render its judgment.

The Supreme Court has ruled as follows:

"[T]he record is never conclusive as to the
recital of a jurisdictional fact, and the
defendant is always at liberty to show a
want of jurisdiction, although the record
avers the contrary. If the court had no
jurisdiction, it had no power to make a
record, and the supposed record is not in
truth a record."

Slaughter v. Commonwealth, 222 Va. 787, 793, 284 S.E.2d 824, 827

(1981) (citation omitted). "[A]ny subsequent proceeding based

on . . . a [jurisdictionally] defective judgment is void or a

nullity." Morrison, 239 Va. at 170, 387 S.E.2d at 756.

We have addressed situations in which parties in support

disputes sought to challenge contempt rulings against them and

did not want to post the bond required by statute. In McCall v.

Commonwealth, 20 Va. App. 348, 457 S.E.2d 389 (1995), we held

that, under the pre-1992 version of Code § 16.1-107, a court has

no duty to bifurcate support arrearage judgments from other

issues to determine whether a party must post a bond. Id. at

349, 457 S.E.2d at 390. We noted that when McCall appealed from

a juvenile court judgment, he "did not specify or indicate in

any way that he was appealing only the civil contempt citation

and not the determination as to the amount of his support

arrearage." Id. at 350, 457 S.E.2d at 391. We also noted that

McCall initially asserted the limited nature of his appeal only

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in this Court. See id. at 350, 457 S.E.2d at 390. Thus, we

affirmed the ruling dismissing McCall's appeal because he did

not bifurcate the issues. In Avery, however, we reversed an

order dismissing an appeal on similar grounds because the party

showed clearly that he "sought only to appeal the contempt

finding." 22 Va. App. at 702, 472 S.E.2d at 677.

I believe we should treat challenges to jurisdiction in the

same way we treat appeals from contempt orders. In this case,

as in Avery, the appellant, Mahoney, has "sufficiently

'inform[ed] the court that he was pursuing an appeal of the

[court's jurisdiction] and not appealing the determination of

the support arrearage.'" Id. (quoting McCall, 20 Va. App. at

352-53, 457 S.E.2d at 392). Mahoney separately listed in his

notice of appeal to the circuit court the matters he wished to

appeal and he orally stated at the circuit court hearing the

limited nature of his appeal. He did not challenge the support

arrearage judgment.

For these reasons, I would reverse and remand this matter

to the circuit court for consideration solely on the issue

whether the juvenile court acquired jurisdiction to adjudicate

the matter.

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