Mahoney v. Mahoney

BENTON, Judge.

Michael A. Mahoney, Sr., appealed to the circuit court from a judgment of the juvenile and domestic relations district court. The trial judge dismissed the appeal because Mahoney had not filed the bond fixed by the juvenile court judge. On this appeal, Mahoney contends the trial judge erred in dismissing his appeal in its entirety because Code § 16.1-296(H) does not require an appeal bond for some issues he sought to appeal. For the reasons that follow, we agree with Mahoney and remand to the circuit court Mahoney’s appeal of the jurisdictional issue.

I.

This matter commenced in the juvenile and domestic relations district court in 1995 upon the petition of Jeanne M. Mahoney, Mahoney’s former wife, for a determination of custody and support of their minor children. Various orders were entered. In 1998, Mahoney’s former wife filed a petition in the juvenile court requiring Mahoney to show cause why he should not be found in contempt. A judge of the juvenile court adjudged Mahoney in contempt for “failure to pay child support, spousal support, medical bills and attorney’s fees” as previously ordered, “granted a judgment [against Mahoney] in the amount of $151,902.52 ... [as] arrears in child support, spousal support, medical payments and attorney’s fees,” and decreed other relief.

Mahoney appealed that judgment to the circuit court. He noted 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.” The juvenile court judge fixed the bond at $165,888.52. When Mahoney failed to post the bond, his former wife filed a motion to dismiss the appeal.

At a hearing in the circuit court, Mahoney’s counsel informed the trial judge that Mahoney was “not appealing the contempt” and was “not appealing] the amount of support.” He argued that he was “appealing] ... the lack of subject matter jurisdiction by the Court.” Ruling that a party “can’t piecemeal the appeal,” the trial judge granted the motion to dismiss. This appeal followed.

II.

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, ho 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 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). We hold that 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.”

Consistent with his notation on the notice of appeal, Mahoney informed the trial judge during the hearing that he was “appealing] ... the lack of subject matter jurisdiction of the [juvenile and domestic relations district] court.” Specifically, Mahoney alleged that the juvenile court never acquired jurisdiction under the Uniform Child Custody Jurisdiction Act or the Uniform Interstate Family Support Act. His challenge was not to any portion of the judgment but to the power of the court to render any judgment.

This jurisdictional challenge 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). Further, the lack of jurisdiction may be raised at any time, because without subject matter jurisdiction, “a judgment on the merits made without subject matter jurisdiction is null and void.” Morrison v. Bestler, 239 Va. 166, 170, 387 S.E.2d 753, 755-56 (1990). 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.

Moreover, we conclude that “[Mahoney’s] argument 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.’ ” Avery, 22 Va.App. at 702, 472 S.E.2d at 677 (quoting McCall v. Commonwealth, Dept. of Soc. Services, 20 Va.App. 348, 352-53, 457 S.E.2d 389, 392 (1995)). In McCall, where the pre-1992 version of Code § 16.1-107 was in effect, the party appealing from a juvenile court judgment “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. Noting that McCall initially asserted the limited nature of his appeal only in this Court, we held that the party appealing from a juvenile court judgment is responsible for bifurcating in the notice of appeal to the circuit court the issues the party intends to separately pursue. See id. at 349, 457 S.E.2d at 390. Unlike McCall, Mahoney separately listed in his notice of appeal to the circuit court the matters he wished to appeal and he orally stated the limited nature of his appeal.

For these reasons, we reverse and remand this matter to the circuit court for consideration solely on the issue whether the juvenile court acquired subject matter jurisdiction.

Reversed and remanded.