Valerie Jill Rhudy Minor v. Timothy M. Barrett
0103163
| Va. Ct. App. | Oct 11, 2016Background
- Mother (Valerie Minor) sought to amend a JDR court visitation order (the "06-06 order"). Father (Timothy Barrett) previously filed and later withdrew multiple appeals of related 2012 JDR orders; those withdrawals rendered those orders final under Code § 16.1-298(D).
- Father filed a separate 2013 complaint in circuit court regarding nonsuited matters; that complaint was dismissed and appealed (Barrett II).
- While Barrett II was pending in this Court, JDR amended the 06-06 order; father appealed that amendment to the circuit court.
- The circuit court vacated the JDR amendment and dismissed mother’s motion, holding the JDR could not modify the order while the related appeal was pending and concluding it lacked subject matter jurisdiction; the circuit court also did not conduct a de novo hearing.
- Mother appealed the circuit court’s rulings; father cross-assigned error to allowing mother’s attorney-husband to represent her after the ruling.
- The Court of Appeals affirmed the ruling allowing husband to represent mother, reversed the vacatur/dismissal, held the JDR had jurisdiction and authority to modify the 06-06 order, and remanded for a de novo hearing in circuit court.
Issues
| Issue | Plaintiff's Argument (Minor) | Defendant's Argument (Barrett) | Held |
|---|---|---|---|
| Whether JDR may modify an order while a related appeal is pending | JDR could amend the distinct 06-06 order because the pending appellate matter (Barrett II) involved different orders and would not be affected | Pending related appeal divests lower courts of authority; JDR modification during appeal is impermissible | Court held JDR could amend the 06-06 order; the appealed matter did not divest JDR of authority over that separate order (reversed circuit court) |
| Whether JDR had subject matter jurisdiction over the 06-06 order | JDR retained subject matter jurisdiction under Code § 16.1-241 to adjudicate child visitation within its territory | Claimed lack of jurisdiction/supporting vacatur | Court held JDR had subject matter jurisdiction; circuit court erred in finding otherwise |
| Whether the circuit court conducted a required de novo review on appeal | Mother argued the circuit court should have allowed a de novo trial (and that its decision was erroneous) | Father (as appellant to circuit court) was entitled to de novo review; circuit court instead reviewed JDR record and treated matter as appellate | Court found the circuit court did not conduct a de novo trial and erred; remanded for de novo hearing |
| Whether mother’s husband (an attorney) could represent her in circuit court | Wife sought representation by husband after circuit court decision; representation was allowed once no testimony was expected | Father argued counsel-husband was a necessary witness and representation violated professional conduct rules | Court affirmed allowing husband to represent mother because he began representation only after the court ruled and when no evidence would be taken (no Rule 3:7 violation) |
Key Cases Cited
- Greene v. Greene, 223 Va. 210 (orderly administration: appellate jurisdiction divests trial court)
- Brown v. Commonwealth, 279 Va. 210 (preservation of issues; Code § 8.01-384(A) informs Rule 5A:18)
- McCoy v. McCoy, 55 Va. App. 524 (notice of appeal transfers jurisdiction to appellate court)
- Prizzia v. Prizzia, 58 Va. App. 137 (distinguishing subject matter jurisdiction from authority to exercise jurisdiction)
- Alexander v. Flowers, 51 Va. App. 404 (right to de novo trial on appeal from JDR court)