Evelyn F. Brown v. Paul C. Josey, Jr. ( 2011 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Haley and Powell
Argued at Richmond, Virginia
EVELYN F. BROWN
MEMORANDUM OPINION * BY
v. Record No. 1711-10-2 JUDGE CLEO E. POWELL
APRIL 26, 2011
PAUL C. JOSEY, JR.
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
Herbert C. Gill, Jr., Judge
William J. Doran, III, for appellant.
No brief or argument for appellee.
Evelyn F. Brown (“Brown”) appeals the trial court’s order sustaining the demurrer of
Paul C. Josey, Jr., (“Josey”) as to the three counts brought in her amended complaint. Finding that
the order appealed fails to dispose of the whole subject of the suit and is therefore not a final
order, we dismiss the appeal.
BACKGROUND
In reviewing a trial court’s decision to sustain a demurrer, an appellate court must
“consider as true all material facts alleged in a bill of complaint, all facts impliedly alleged, and
all reasonable inferences that can be drawn from such facts.” Riverview Farm Assocs. v. Board
of Supervisors, 259 Va. 419, 427, 528 S.E.2d 99, 103 (2000) (citations omitted). So viewed, the
evidence demonstrates that, in February of 1985, Brown gave birth to A.C. In 1986, Brown met
and entered into a relationship with Josey. In November of 1989, Brown gave birth to a son, P.J.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Brown and Josey were married in August of 1990, but separated in early 1992. On
March 25, 1992, a support order was entered by the Colonial Heights Juvenile and Domestic
Relations District Court (“J&DR court”), granting custody of both A.C. and P.J. to Josey. The
same order required Brown to pay child support in the amount of $298 every other week.
On or about October 10, 1992, Josey moved to Florida with A.C. and P.J. Brown did not
have any contact with either child until June 6, 1993, when A.C. was returned to her custody.
A.C. continued to live with Brown until he reached the age of majority.
In 2002, Brown located P.J., who was still living with Josey in Florida. P.J. was
subsequently incarcerated in various detention, therapy, and/or correctional facilities in Florida
from March of 2003 to September of 2007. On September 26, 2007, P.J. was released into
Brown’s custody. P.J. continued to live with Brown until he reached the age of majority.
At some point in 2007, Brown received an Order of Collection from the Virginia
Department of Child Support Enforcement (“DCSE”), indicating that she owed over $110,000 in
child support arrearages. Soon afterward, DCSE began to garnish her wages.
On October 14, 2008, Brown filed a motion to vacate and/or amend the original 1992
support order (the “motion to amend”) in the Colonial Heights J&DR Court. After hearing
arguments from Brown and DCSE, the J&DR court denied the motion.
Brown appealed the decision to the Circuit Court of the City of Colonial Heights (“trial
court”). On May 19, 2009, Brown also filed a complaint (“initial complaint”) against Josey in
the trial court. The initial complaint set forth four separate causes of action. On June 22, 2009,
Brown moved to consolidate her appeal from the J&DR court with the suit she initiated against
Josey. In addition to counsel for Brown, counsel for DCSE was present for the hearing. In a
June 29, 2009 order, the trial court granted Brown’s motion to consolidate, stating:
“upon consideration of the matter advanced by counsel for
[Brown] and for DCSE, the Court, deeming it proper so to do,
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ORDERS that [Brown’s] Motion to Consolidate her appeal of the
ruling of the [J&DR court] with the suit initiated by [Brown] in
this Court seeking declaratory, injunctive, and other relief is
granted . . . .”
On June 24, 2009, after the trial court heard the motion to consolidate, but before the
order granting the motion was entered, Josey filed a demurrer and answer to the initial
complaint. In a letter opinion dated November 9, 2009, the trial court sustained the demurrer as
to one count of Brown’s initial complaint, but overruled the demurrer as to the remaining counts.
The trial court further granted Brown leave to file an amended complaint and Josey time to
respond to the amended complaint.
On December 30, 2009, Brown filed an amended complaint, in which she set forth three
causes of action seeking 1) injunctive relief, 2) declaratory judgment, and 3) equitable relief. On
January 20, 2009, Josey filed an amended demurrer and amended answer. In an opinion letter
dated April 12, 2010, the trial court sustained the demurrer as to the three counts. On June 14,
2010, the trial court entered an order memorializing the findings and rulings it set forth in the
April 12, 2010 letter opinion and dismissed Brown’s complaint without leave to amend. The
trial court stated, “[T]here being nothing further to be done in this matter, the Clerk is directed to
close this case and place it among the ended causes . . . .” Notably, however, no mention was
made of Brown’s appeal of the J&DR court’s denial of her motion to amend in either the April
12, 2010 letter opinion or the subsequent order.
ANALYSIS
Our jurisprudence is clear that the subject matter jurisdiction of this Court is limited and
defined by statute. See Code § 17.1-405. As such, “[u]nless a statute confers jurisdiction in this
Court, we are without power to review an appeal.” Canova Elec. Contracting, Inc. v. LMI Ins. Co.,
22 Va. App. 595, 599, 471 S.E.2d 827, 829 (1996) (citations omitted). Furthermore, lack of subject
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matter jurisdiction may be raised for the first time on appeal by an appellate court sua sponte.
Morrison v. Bestler, 239 Va. 166, 170, 387 S.E.2d 753, 756 (1990).
“The Court of Appeals has appellate jurisdiction over final decrees of a circuit court in
domestic relations matters arising under Titles 16.1 or 20, and any interlocutory decree or
order . . . ‘adjudicating the principles of a cause.’” Erikson v. Erikson, 19 Va. App. 389, 390,
451 S.E.2d 711, 712 (1994) (quoting Code §§ 17.1-405(3)(f) and (4), formerly Code §§ 17,
116.05(3)(f) and (4)) (emphasis added). A final order is defined as one “‘which disposes of the
whole subject, gives all the relief that is contemplated, and leaves nothing to be done by the
court.’” Id. (quoting Southwest Virginia Hosps. v. Lipps, 193 Va. 191, 193, 68 S.E.2d 82, 83-84
(1951)). “On the other hand, every decree which leaves anything in the cause to be done by the
court, is interlocutory as between the parties remaining in the court.” Ryan v. McLeod, 73 Va.
(32 Gratt.) 367, 376-77 (1879).
Although the trial court’s June 14, 2010 order indicates that it is a final decree and
therefore appealable, we find that it fails to dispose of the whole subject of the suit. By granting
Brown’s motion to consolidate, the trial court combined Brown’s appeal and her initial
complaint to form a single suit.
“Where several causes are technically consolidated, they become
in effect a single suit, at least in so far as the circumstances of the
several causes permit complete unity. The evidence in one
becomes evidence in the other (subject of course to the control of
the court to prevent injustice); the parties to one become parties to
the other; and the cause proceeds for all purposes as if the several
causes had been originally asserted in a single bill. It must be
observed, however, that it is the proceedings that are consolidated
and not the claims asserted, save where the latter belonged to the
same plaintiff.”
Williams v. Fidelity Loan & Sav. Co., 142 Va. 43, 51, 128 S.E. 615, 617 (1925) (quoting Lile,
Equity Pleading and Practice § 341 (2d ed. 1922)) (emphasis added).
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Neither the April 12, 2010 letter opinion nor the June 14, 2010 order makes any reference
to Brown’s appeal of the J&DR court’s denial of her motion to amend. Thus, it cannot be said
that the trial court disposed of the whole subject of the suit, gave all of the relief contemplated,
and left nothing to be done by the trial court, as the matter of Brown’s appeal of the J&DR
court’s denial of her motion to amend is still before the trial court. As such, the June 14, 2010
order is not a final order.
CONCLUSION
As the June 14, 2010 order is not a final order, we hold that we lack subject matter
jurisdiction to consider the merits of this appeal, and we therefore dismiss this appeal without
prejudice.
Dismissed.
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