COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bray
Argued at Norfolk, Virginia
CHARLES DOUGLAS CALFEE
OPINION BY
v. Record No. 2622-97-2 JUDGE RICHARD S. BRAY
JANUARY 26, 1999
LISA WHITE CALFEE
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
Edwin F. Brooks (Jackson, Pickus &
Associates, P.C., on brief), for appellant.
Sharon B. Ten (Cawthorn, Picard & Rowe, P.C.,
on brief), for appellee.
Charles Douglas Calfee (husband) appeals an order of the
trial court (1) finding him in contempt for failure to comply
with the court's prior order of child support and establishing
related arrearages, (2) modifying the previous order, and (3)
awarding Lisa White Calfee (wife) attorney's fees. Husband
challenges the jurisdiction of the court, arguing that the
matters in issue were within the exclusive province of the
Chesterfield Juvenile and Domestic Relations District Court (J&D
1
Court). We agree and reverse the decree.
I.
The procedural history of this appeal is substantially
uncontroverted. Wife petitioned the J&D Court for an award of
support from husband for the parties' two infant children.
1
Husband also complains that he was denied due process
during the proceedings, but our decision moots this issue.
Following a hearing, the J&D Court ordered husband to pay $109
per week support and a portion of the children's medical costs
unpaid by insurance. The order, entered October 6, 1993, further
provided that husband's obligations would escalate on November 1,
1993, to $128 per week support and forty percent of the specified
medical expenses.
Husband appealed the J&D Court order to the trial court and
a de novo hearing was conducted on February 17, 1994. Husband
failed to appear but was represented by counsel. By order
entered February 28, 1994, the court "denied" husband's appeal,
ruled that he was "in arrears . . . a total . . . of $2,951.18"
under the award of the J&D Court, and assessed additional
2
attorney's fees. The court further ordered "all sums due"
payable ten days after service of the order upon husband or "a
warrant for [husband's] arrest shall be issued." The trial court
later revisited the proceeding, sua sponte, by order dated
September 29, 1994, and "remanded" the cause to the J&D Court,
after expressly finding "the purpose of this matter having been
accomplished."
The record is thereafter silent until June 2, 1997, when
wife filed motions with the trial court to "reinstate this matter
on the docket" and to modify the earlier support order of the J&D
Court. Wife also alleged husband's noncompliance with the trial
2
The trial court did not explicitly redetermine a support
award but simply acted on the order of the J&D Court on appeal.
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court order of February, 1994, and petitioned, inter alia, that
he be punished for contempt. In response, the court ordered
"this matter . . . reinstated on the active docket" and that
husband appear "on July 25, 1997, to show cause . . . why he
should not be held in contempt for the alleged failure to comply
with [the] . . . prior order." Husband was present, pro se, at
the appointed date and hour, evidence was heard ore tenus, and,
by order of August 1, 1997, the court adjudicated him in contempt
of the February order, required that he pay wife arrearages of
$9,306.64 "within 180 days," and sentenced him to twelve months
3
in jail. The court also increased husband's child support and
health care obligations and awarded wife attorney's fees.
Thereafter, husband, by counsel, moved to vacate the order,
arguing that the court had "terminated [its] . . . jurisdiction
. . . over the . . . dispute" upon remand to the J&D Court by
order entered September 29, 1994. In denying husband's motion,
the court concluded that, "[a]fter remand[, it] had concurrent
jurisdiction with the [J&D Court] to enforce [the] court's order
of February 28, 1994," thereby providing wife with "the option to
go to either court." Husband now appeals, pursuing the
jurisdictional issue before this Court.
II.
Code § 16.1-241(A), unless otherwise "provided," vests
3
The jail sentence was subject to suspension upon husband's
"posting . . . a $10,000.00 bond."
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"exclusive original jurisdiction" in the juvenile and domestic
relations district courts (J&D courts) "over all cases, matters
and proceedings involving: A. The . . . support . . . of a
child: . . . 3. [w]hose . . . support is a subject of
controversy or requires determination." Code § 16.1-241(A)(3).
However, "[i]n such cases[,] jurisdiction shall be concurrent
with and not exclusive of courts having equity jurisdiction,
except as provided in [Code] § 16.1-244." Id. (emphasis added).
Code § 16.1-244(A) empowers the circuit court, concurrently with
the J&D courts, "to determine the . . . support of children when
. . . incidental to the determination of causes pending in such
[circuit] courts." Code § 16.1-244(A). An exception divests J&D
courts of jurisdiction if "a suit for divorce has been filed in a
circuit court, in which the . . . support of children of the
parties . . . is raised by the pleadings and a hearing is set by
the . . . court . . . on such issue for a date . . . within
twenty-one days of the filing." Id.; see also Code § 20-79(a).
"[C]ircuit courts may assume jurisdiction [of child support
issues] either by an appeal from the [J&D] courts or by the
direct filing of an appropriate proceeding in the circuit
courts." Peple v. Peple, 5 Va. App. 414, 418, 364 S.E.2d 232,
235 (1988); see Code § 16.1-296; Title 20. When, as here,
jurisdiction is invoked by appeal from a child support order of
the J&D court, the attendant "proceedings in the circuit court
shall conform to the equity practice where evidence is heard ore
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tenus," Code § 16.1-296(F), and "shall be heard de novo[,] . . .
without formal pleadings in writing." Code § 16.1-136; see
Peple, 5 Va. App. at 419, 364 S.E.2d at 236 ("circuit court must
conduct a de novo hearing . . . on appeal from the [J&D]
courts"). Such appeal "'annuls the judgment of the inferior
tribunal as completely as if there had been no previous trial.'"
Peple, 5 Va. App. at 419, 364 S.E.2d at 236 (citation omitted).
"Upon the rendition of final judgment upon an appeal from
the [J&D] court, the circuit court shall cause a copy of its
judgment to be filed with the [J&D] court within twenty-one days
of entry of its order, which shall thereupon become the judgment
of the [J&D] court." Code § 16.1-297. Additionally,
the circuit court may remand [the
proceedings] to the jurisdiction of the [J&D]
court . . ., under the terms of its order or
judgment, and thereafter such . . . shall be
and remain under the jurisdiction of the
[J&D] court in the same manner as if such
court had rendered the judgment in the first
instances.
Id. Thus, upon remand of a judgment rendered on appeal, the
former jurisdiction of the J&D court over the proceedings is
restored, once again subject to the potential exercise of
jurisdiction by the circuit court in accordance with Code
§§ 16.1-241, 16.1-244 and 16.1-296.
Similarly, jurisdiction lost by the J&D court to the circuit
court "[i]n any suit for divorce" may be resumed by "transfer to
the [J&D] court" by the circuit court for "enforcement of its
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orders" or "[a]fter the entry of a decree of divorce" for "any
other matters pertaining to support" pursuant to Code § 20-79(c).
Thereafter, both courts enjoy concurrent jurisdiction to
adjudicate such issues, with the circuit court exercising "its
continuing jurisdiction" by simply "reinstat[ing] the case on its
docket." Crabtree v. Crabtree, 17 Va. App. 81, 84, 435 S.E.2d
883, 886 (1993); see Romine v. Romine, 22 Va. App. 760, 763-64,
473 S.E.2d 99, 101 (1996); see also Code § 20-121.1. 4
Nevertheless, "the procedural distinction between an appeal
under Code § 16.1-136 and a divestiture of further jurisdiction
in the [J&D] court by operation of Code § 16.1-244(A)
[(institution of divorce proceedings)] is significant." Peple, 5
Va. App. at 419-20, 364 S.E.2d at 236. A decree or order of the
circuit court emanating from a "suit for divorce," after
displacing the jurisdiction of the J&D court, may be transferred
to such court for enforcement or related matters, thereby
restoring concurrent jurisdiction in both courts, without
impairing the properly invoked exercise of jurisdiction by the
circuit court over the transferred issues. In contrast, an order
adjudicating an appeal from the J&D court to the circuit court is
not entitled to the procedural convenience of transfer provided
by Code § 20-79. Such order, together with the related issues
4
"In any suit which has been stricken from the docket, and
in which complete relief has not been obtained, upon the motion
or application of either party . . ., the same shall be
reinstated upon the docket . . . to grant full relief to the
parties." Code § 20-121.1.
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embraced by the appeal, rests within the exclusive jurisdiction
of the circuit court pending disposition by that court.
III.
Here, upon resolution of the appeal, the circuit court
declared its "purpose . . . accomplished" and "remanded" the
"matter" to the Chesterfield J&D Court, thereby expressly
surrendering jurisdiction to the original statutory authority of
the J&D Court pursuant to Code § 16.1-297. Unaided by Code
§ 20-79, such "remand" created no concurrent jurisdiction in the
circuit court, save that provided by Code §§ 16.1-241, 16.1-244,
and precluded reinstatement of the cause to the docket of the
trial court as a decree or order related to divorce or
maintenance in accordance with Code §§ 20-79(c), 20-121.1. Thus,
the trial court's belated attempt to exercise concurrent
jurisdiction through the disputed order was without statutory
authority and jurisdictionally infirm. See Church v. Church, 24
Va. App. 502, 505, 483 S.E.2d 498, 500 (1997).
Accordingly, we reverse the decree.
Reversed and final judgment.
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Benton, J., concurring.
I concur except as to the parts of the opinion that conflict
with views I expressed in Crabtree v. Crabtree, 17 Va. App. 81,
89-92, 435 S.E.2d 883, 888-91 (1993) (Benton, J., dissenting),
and I concur in the judgment reversing the decree.
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