COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
VICTOR ESPINOZA
MEMORANDUM OPINION *
v. Record No. 0536-03-4 PER CURIAM
AUGUST 5, 2003
CLAUDIA ESPINOZA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert W. Wooldridge, Jr., Judge
(Karen Zeineddin; Leiser & Associates, PLLC,
on brief), for appellant.
(Brendan D. Harold; Leffler & Hyland, P.C.,
on brief), for appellee.
Victor Espinoza, father, appeals a decision of the trial
court dismissing his appeal of a child support award made by the
Juvenile and Domestic Relations District Court of Fairfax County
(JDR court). Appellant contends the trial court erred in
dismissing his case for failure to post an appeal bond pursuant to
Code § 16.1-296(H). Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
Claudia Espinoza, mother, filed a petition for child support
in JDR court. In June 2002, the JDR judge ordered father to make
child support payments of $889 per month. The JDR judge also
determined that father was in arrears for child support payments
in the amount of $7,112 and ordered that father pay an additional
$75 per month toward the arrearage amount.
Father noted his appeal of the decision of the JDR court to
the Circuit Court of Fairfax County. The notice of appeal was
signed by a deputy clerk of the JDR court and contained a
handwritten notation "Appeal Bond--No Bond." Another document,
dated June 13, 2002 and signed by the JDR judge, has a heading:
"APPEAL BOND INFORMATION." Under that heading, a box is checked
next to the wording: "NO BOND REQUIRED." Father did not file an
appeal bond.
Mother filed a motion to dismiss father's appeal to the
circuit court on the ground that he failed to post an appeal bond.
In an opinion letter dated January 30, 2003, the trial court wrote
that the JDR court "set no bond for this appeal. Presumably
[father] posted no bond for that very reason." The trial court
granted mother's motion to dismiss, stating that, pursuant to Code
§ 16.1-296(H), it was without jurisdiction to hear the case and
that it was without discretion to relieve father of the
responsibility to post an appeal bond. Father appeals the
decision of the trial court.
- 2 -
ANALYSIS
Code § 16.1-296(H) provides, in part:
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.
The Supreme Court of Virginia has stated:
Code § 16.1-296(H) could not be more
clear: "no appeal shall be allowed" unless
and until a bond is given by the party
applying for the appeal. The statutory
requirements for appeal bonds always have
been construed as mandatory, and the
exercise of appellate jurisdiction has been
confined to the provisions of the written
law. We repeatedly have held that "[the]
failure to substantially comply with the
statutory requirements applicable to appeal
bonds constitutes a jurisdictional defect
which cannot be corrected after the
expiration of the time within which an
appeal may be taken."
Commonwealth ex rel. May v. Walker, 253 Va. 319, 322, 485 S.E.2d
134, 136 (1997) (citations omitted).
Father argues that his case is distinguishable from May
because, in his case, the JDR court set the bond at "zero."
However, in May, the Supreme Court specifically rejected this
Court's ruling that, "because the District Court failed to
require a bond, the Circuit Court was not deprived of its
jurisdiction." Id. "Code § 16.1-296(H) places the burden on
- 3 -
the party applying for the appeal to ask for and to have the
district court set the bond and approve the surety." Id. In
addition, father's contention that he was denied
constitutionally-guaranteed rights is without merit. "[T]he
failure to post an appeal bond is not a 'mere defect,
irregularity or omission in the proceedings;' rather, it is a
fatal jurisdictional defect that cannot be cured." Id. at 323,
485 S.E.2d at 136 (quoting Code § 16.1-114.1).
The failure to post the appeal bond deprived the trial
court of jurisdiction. Accordingly, we summarily affirm the
decision of the trial court and dismiss the appeal.
Affirmed.
- 4 -