Darci A. Reilly v. Patrick L. Reilly
1369152
| Va. Ct. App. | Dec 13, 2016Background
- Mother appealed a JDR court custody/visitation order to the circuit court and was entitled to a de novo hearing.
- At an April 2, 2014 settlement conference before Judge Rockwell, the guardian ad litem (GAL) later presented a written "Final Consent Order – Custody & Visitation" that mother had not signed and said reflected the parties' agreement.
- Judge Rockwell recused; Judge Hauler later reviewed the unsigned consent order and, despite mother's objections that she never agreed to its terms, entered it on November 20, 2014 and incorporated it into a final order on August 3, 2015.
- Mother sought reconsideration; counsel Padula-Wilson was removed below for custody/visitation but later signed and filed a timely notice of appeal on mother's behalf.
- Judge Hauler awarded father $9,687.50 in attorney's fees; the final custody order included language permitting the GAL to alter visitation/supervision in writing without further court action.
- The Court of Appeals reversed: it held the unsigned consent order could not be enforced over mother's objection, reversed the fee award as punitive, and ruled a court cannot delegate unilateral visitation-alteration authority to a GAL; the matter was remanded for a de novo trial.
Issues
| Issue | Plaintiff's Argument (Reilly) | Defendant's Argument (Father/GAL) | Held |
|---|---|---|---|
| Jurisdiction: Was the notice of appeal valid though signed by counsel removed below? | Mother: Padula-Wilson properly signed notice for appeal; mother retained her for appellate work. | GAL: Padula-Wilson was removed as counsel for custody/visitation below, so her signature is defective and jurisdiction is lacking. | The appeal was valid: circuit court removal below did not bar Padula-Wilson from representing mother on appeal. |
| Validity of Consent Order: Could court enforce the GAL's unsigned consent order over mother's objection? | Mother: She never signed or agreed to the written order and was entitled to a de novo trial. | Father/GAL: Parties had reached an agreement at the settlement conference and the trial judge accepted it; circuit court may adopt that agreement. | Reversed: Circuit court erred. An unsigned consent order not executed by all parties cannot be enforced; remand for de novo trial. |
| Attorney's fees: Was the award to father proper? | Mother: Fees were imposed punitively for disputing the consent order; improper. | Father: Fees justified because mother compelled needless proceedings. | Reversed: Fees were punitive (court threatened fees if mother pursued appeal); award vacated. |
| Delegation of visitation: Could the court authorize GAL to unilaterally alter supervision/visitation? | Mother: Final order improperly delegated discretion to GAL to change visitation without judicial review. | Father/GAL: Language allowed supervision changes based on mother's compliance and practical administration by GAL. | Reversed: Court cannot delegate judicial authority to a third party to unilaterally alter visitation; such delegation is inconsistent with Code §20-124.2. |
Key Cases Cited
- Brown v. Commonwealth, 279 Va. 210 (discussing de novo review and legal questions of enforceability)
- Walker v. Department of Public Welfare, 223 Va. 557 (appeal to circuit court annuls inferior tribunal judgment; de novo hearing principle)
- Temple v. Mary Washington Hosp., Inc., 288 Va. 134 (trial courts speak only through written orders)
- Alexander v. Flowers, 51 Va. App. 404 (attorney's fees may not be imposed as a punitive deterrent to appeal)
- Raiford v. Raiford, 193 Va. 221 (equity courts may not abdicate judicial authority to third parties)