James B. Spear, Jr. v. Nawara T. Omary
0064174
| Va. Ct. App. | May 30, 2017Background
- Parties divorced in 2010; final decree incorporated parties’ support agreement requiring father to pay $3,500/month child support.
- In 2011 the circuit court transferred child-support matters to Fairfax JDR Court at DCSE’s request.
- In 2013 father initiated an appeal from a JDR child-support order but on May 9, 2014 the circuit court entered an order stating father withdrew his appeal; the order did not explicitly state whether matters were remanded to the JDR court.
- In January 2015 DCSE moved in the JDR court to amend support based on changed circumstances; the JDR court reduced father’s obligation to $1,088/month in March 2016; mother appealed to the circuit court.
- On August 11, 2016 the circuit court dismissed the JDR proceeding for lack of jurisdiction (holding the circuit court’s 2014 order had not remanded support) vacated the JDR order, and held the 2010 divorce support provisions remain in effect. Father did not sign the August 11 order and did not preserve the arguments he now presses on appeal.
- Father appealed the August 11, 2016 order; the Court of Appeals summarily affirmed and remanded for an award of mother’s appellate attorney’s fees and costs.
Issues
| Issue | Plaintiff's Argument (Spear) | Defendant's Argument (Omary) | Held |
|---|---|---|---|
| Whether the JDR Court had jurisdiction to modify child support | JDR had jurisdiction to modify support; circuit court erred in dismissing JDR order | Circuit court correctly found no remand to JDR and therefore JDR lacked jurisdiction | Court affirmed: father failed to preserve argument; circuit court’s jurisdictional ruling stands |
| Whether the circuit court should have conducted a de novo review on appeal from the JDR Court | Circuit court erred by not performing de novo review of JDR order | Mother contends review question not preserved; circuit court’s procedure proper | Court held argument not preserved for appeal and declined to consider it |
Key Cases Cited
- Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d 833 (2003) (appellate review views evidence in light most favorable to prevailing party)
- Ohree v. Commonwealth, 26 Va. App. 299, 494 S.E.2d 484 (1998) (issues not presented to the trial court generally are not considered on appeal)
- O’Loughlin v. O’Loughlin, 23 Va. App. 690, 479 S.E.2d 98 (1996) (award of appellate attorney’s fees to prevailing family-law party may be appropriate)