Karen Bonsack v. Michele Gregory
0415164
| Va. Ct. App. | Oct 25, 2016Background
- Bonsack appealed a juvenile and domestic relations district court's denial of her petition for visitation with Gregory's two children; she was entitled to a de novo trial in the circuit court.
- After a nonsuit and timely refile, Gregory obtained a district-court protective order prohibiting Bonsack's contact with the children; Bonsack appealed and the parties entered a consent decree (August 28 order) in circuit court that imposed no-contact restrictions but stated the consent order "shall be modified by an Order of this [c]ourt upon proper motion and hearing."
- The circuit-court trial on visitation was scheduled for February 24, 2016; on February 5 Gregory moved to dismiss/for summary judgment and the motion was set for February 19 (motions day).
- Bonsack filed a motion to modify or vacate the August 28 order to allow the upcoming visitation trial to proceed and included that motion in her objection to Gregory’s summary-judgment motion.
- At the February 19 hearing the circuit court concluded it could not grant visitation because the August 28 no-contact order remained in effect, dismissed Bonsack’s case without addressing the merits, and did not modify the consent order.
- The Court of Appeals held the dismissal was erroneous because the circuit court retained authority under the consent order to modify it after a proper motion and hearing and therefore deprived Bonsack of her trial de novo.
Issues
| Issue | Plaintiff's Argument (Bonsack) | Defendant's Argument (Gregory) | Held |
|---|---|---|---|
| Whether the circuit court properly dismissed Bonsack’s visitation petition before the scheduled trial because a prior consent/no-contact order existed | The consent order expressly permitted modification by court order upon proper motion and hearing; Bonsack sought modification and a trial de novo | The existing consent/no-contact order precluded the court from granting visitation, so dismissal was appropriate | Court reversed: dismissal was erroneous because the circuit court could have modified the consent order at the scheduled trial and thus deprived Bonsack of her day in court |
| Whether the court may "short-circuit" the de novo trial by granting dismissal instead of addressing modification or the merits | Trial de novo right requires a full hearing on the merits; modification motion was pending | The no-contact order makes relief impossible, so merits are moot | Court held short-circuiting the process was improper; the trial must proceed on the merits |
Key Cases Cited
- Layman v. Layman, 62 Va. App. 134, 742 S.E.2d 890 (Va. Ct. App. 2013) (standard for reviewing evidence in appeal from lower court)
- Johnston Memorial Hospital v. Bazemore, 277 Va. 308, 672 S.E.2d 858 (Va. 2009) (de novo review for pure questions of law)
- Ragan v. Woodcroft Vill. Apartments, 255 Va. 322, 497 S.E.2d 740 (Va. 1998) (statutory right to trial de novo in circuit court on appeals from district courts)
- Dodge v. Trustees Randolph-Macon Woman’s College, 276 Va. 1, 661 S.E.2d 801 (Va. 2008) (warning against motions that short-circuit litigants' day in court)
- Whitehead v. Commonwealth, 278 Va. 105, 677 S.E.2d 265 (Va. 2009) (limits on applying "right result, wrong reason" when further factual development is required)