MICHELINA BONANNO v. JAMES LEROY QUINN, II
Record No. 200963
Supreme Court of Virginia
May 27, 2021
PRESENT: All the Justices
MICHELINA BONANNO
v.
JAMES LEROY QUINN, II May 27, 2021
FROM THE COURT OF APPEALS OF VIRGINIA
In this аppeal, we consider whether the Court of Appeals erred by dismissing a petition for appeal filed by a person who was not a party in the proceeding from which the appeal was taken. We also consider whether the Court of Appeals abused its discretion by awarding appellate attorney’s fees under Rule 5A:30(b).
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Michelina Bonanno, Ph.D. is the mother of Elizabeth Quinn. Elizabeth married James LeRoy Quinn, II in 2013. Elizabeth had a daughter from a previous relationship with Sean Graham. In a juvenile and domestic relations general district court order entered in 2014, Dr. Bonanno and Elizabeth werе awarded joint legal custody of the child, Elizabeth was awarded physical custody, and Dr. Bonanno was awarded a visitation schedule.
Elizabeth died in October 2018. In December, James filed a petition for adoption. He asserted that Graham’s consent to the adoption was unnecessary under
The circuit court entered an order of refеrence for an investigation under
in only exchanges of voicemail messages. She also sent a certified letter on March 13, which was signed for on March 20. After interviewing James and the child, the social worker reported favorably on their relationship and recommended that the court enter a final order of adoption without an interlocutory order and probationary рeriod under
In a supplemental memorandum to the court filed on April 12, the social worker reported that Dr. Bonanno contacted her by electronic mail on April 4, arranging to speak by telephone on April 10. The memorandum reported that in the telephone conversation, Dr. Bonanno denied knowledge of James’s petition to adopt the child and denied consent to the adoption. It continued that Dr. Bonanno sent an electronic mail the next day elaborating her concerns, which the memorandum summarized for the court.
The circuit court entered a final order of adoption on April 30, 2019. James sent a copy of the order to Dr. Bonanno by electronic mail after 4:00 p.m. on May 21. On May 30, Dr. Bonanno filed a notice of appeal. On the same day, she filed a motion to unseal the proceeding and to vacate and set aside the final order. In the motion, she made several accusations about James, including that he had concealed his adoption petition from her. She alleged that she promptly retained counsel after she received the adoption order on May 21. She argued that the order was void duе to fraud upon the court and lack of notice to a legal custodian. Alternatively, she argued that the court retained jurisdiction to alter the order within six months under
In July, Dr. Bonanno filed another motion asserting that the order was void ab initio on the ground that James had not fulfilled the procedural requirements for a step-parent adoption as required by
Dr. Bonanno filed a petition for appeal in the Court of Appeals on September 12. Mеanwhile, she sought a hearing in the circuit court on the motions she had filed there. At a September 20 hearing to determine whether the circuit court would hear her motions, James argued that the filing of the notice of appeal divested the circuit court of jurisdiction over the proceedings. Dr. Bonanno countered that the adoption order was void ab initio, and if the circuit court ruled accordingly, it would vitiate the proceedings in the Court of Appeals. The court thereafter issued a letter opinion stating that while a circuit court may consider whether an earlier order is void ab initio after the 21-day period provided by Rule 1:1 has elapsed, in this case Dr. Bonanno’s appeal to the Court of Appeals divested the circuit court of jurisdiction in the matter.
On September 30, James filed a motion to dismiss in the Court of Appeals, noting that Dr. Bonanno had not filed a motion to intervene in the adoption proceeding below. He asserted that she had actual and constructive notice as a result of the Department of Social Services’ attempts to contact her, and argued that as a non-party she had no standing to appeal.
Meanwhile, the circuit court entered an order on October 7 denying Dr. Bonanno a hearing on her motions for the reasons stated in its letter opinion. On October 23, Dr. Bonanno filed a second notice of appeal relating to the circuit court’s October 7 order. The Court of Appeals consolidated the two appeals.
In an unpublished order, a panel of the Court of Appeals granted James’s motion and dismissed the appeals. It ruled that because Dr. Bonanno had neither moved to intervene nor entered an appearance before entry of the finаl order, she was not a party to the proceeding below and so lacked standing to
We awarded Dr. Bonanno this appeal.
II. ANALYSIS
We review the Court of Appeals’ interpretations of statutes and the Rules of this Court de novo. LaCava v. Commonwealth, 283 Va. 465, 469-70 (2012).
A. STANDING TO APPEAL
Dr. Bonanno first asserts, in two of three assignments of error, that the Court of Appeals erred by granting James’ motion to dismiss her appeals to that court on the ground that she was not a party to the proceeding below. We disagree.
The first step in addressing that issue is to note that “party” is not merely a synonym of “person.” The Code of Virginia is replete with examples where the General Assembly has afforded certain litigation rights to either parties or persons. A cursory search reveals dozens of statutes where the General Assembly has used the term “aggrieved party” or “party aggrieved,” and more than one hundred wherе it has used the term “aggrieved person” or “person aggrieved.” This is a distinction with a difference.
For example, the Government Data Collection and Dissemination Practices Act,
This principle is further demonstrated by the Administrative Process Act,
These examples illustrate that the General Assembly knows the difference between persons and parties. When it has shown that it knows and intends a difference between two terms by using them in different ways, see Commonwealth v. Commonwealth ex rel. Hunter Labs., LLC, 296 Va. 32, 38 (2018) (comparing the use of “proceeds” and “net proceeds” in statutes), we presume that it chose with care the words it used when it enacted the statute we are construing. Addison v. Jurgelsky, 281 Va. 205, 208 (2011).
The conclusion that the term “aggrieved party” in
The general legal definition of “party” relevant here is “[o]ne by or against whom a lawsuit is brought; anyone who both is directly interested in a lawsuit and has a right to control the proceedings, make a defense, or appeal from an adverse judgment; litigant[;]” as in “a party to the lawsuit.” Black’s Law Dictionary 1350-51 (11th ed. 2019) (emphasis added). “‘Those persons who institute actions for the recovery of their rights, or the redress of their wrongs, and those against whom the actions are instituted, are the parties to the actions.’” Id. at 1351
(quoting Oliver L. Barbour, A Summary of the Law of Parties to Actions at Law and Suits in Equity 18 (1864)) (emphasis in original).
it is practically impossible to join all parties in interest, and the absent parties are represented by others having the same interests, or where an absent party‘s interests are separable from those of the parties before the court, so that the court may enter a decree without prejudice to the rights of the absent party.
Id. at 176 (internal quotation marks omitted). And those “without whose presence the court cannot act in the case” are “indispensable parties.” 1 Bryson, supra, § 5.03[1][a][i], at 221.
Precedent informs us that the General Assembly did not intend the word “party” in
terms “party” and “person” differently in different statutes. Id. at 256 (opinion of Roane, J.) (seriatim opinion). It had used the term “party” in the statute under which the appellant in Wingfield brought the appeal to the district court, and that “[t]his term party is far more specific than the word person used in the preceding section.” Id. (emphases in original). Thus, the reporter’s syllabus synthesizing the seriatim opinions concludes that an appeal is not allowable “in behalf of a person, who may be interested, but whоse name does not appear as a party, in the record of” the court from which the appeal is taken. Id. at 245 (emphases in original).
Nothing in
This holding does not alter our prior cases allowing a person who has sought leave to intervene in a proceeding from appealing a ruling denying it. It is well settled that one
who seeks to become a party, and is entitled to become a party to proceedings in which he is interested, and is erroneously rejected . . . should be regarded, for the purposes of appeal, as possessing the status of one who is a formal party to the proceedings in which his rights and interests are being litigated.
Jones v. Rhea, 130 Va. 345, 361-62 (1921). “The motion itself, for leave to file or to be made a party, is a proceeding in court, to which the mover is a party, if no others; and if his motion be overruled, he may except to and appeal from the ruling.” Id. at 362 (internal quotation
omitted). However, an appeal from the denial of a motion for leave to intervene brings only the subject of the motion and whether it should have been granted, not the merits of the case, before the appellate court. Mattaponi Indian Tribe v. Virginia Marine Res. Comm‘n, 45 Va. App. 208, 214 n.3 (2005).
Accordingly, the Court of Appeals correctly granted James’ motion to dismiss Dr. Bonanno’s appeals in that court because she was not a party to the proceeding from which she sought to appeal. She therefore had no standing to invoke the jurisdiction of that court.
At oral argument, Dr. Bonanno emphasized that because the adoption proceeding was under seal in the circuit court, she did not know that James had filed a petition, or in what court, until she received the adoption order after the 21-day period provided in Rule 1:1 had elapsed. However, as noted above, the social worker’s supplemental memorandum filed with the circuit court reported that Dr. Bonanno had denied previous knоwledge of the adoption proceeding and denied consent to the adoption in their telephone conversation. This establishes for the purposes of this case, where Dr. Bonanno did not and could not adduce evidence to the contrary, that she was aware of a pending adoption proceeding no later than April 10, 2018, the date of that call. Further, while the certified letter signed for on March 20 did not state that an adoption proceeding was pending, it notified Dr. Bonanno that the social worker was undertaking an investigation “for the Arlington County Circuit Court.” However, Dr. Bonanno undertook no steps until she filed her motions on May 30.
The circuit court thereafter ruled that it could not consider those motions because she had also filed a notice of appeal to the Court of Appeals.2 Dr. Bonanno argues that the ruling was
error but we again disagree. In Walton v. Commonwealth, 256 Va. 85 (1998), we held that a trial court is divested of jurisdiction upon the filing of a notice of appeal because the “‘orderly administration of justice requires that when an appellate court acquires jurisdiction over the parties involved in litigation and the subject matter of their controversy, the jurisdiction of the trial court from which the appeal wаs taken must cease.’” Id. at 95 (quoting Greene v. Greene, 223 Va. 210, 22 (1982)). We clarified the seemingly categorical stance taken in Walton and Greene in Velazquez v. Commonwealth, 292 Va. 603 (2016). There we held that the fact that an appellate court has acquired jurisdiction does not necessarily divest the lower court of all jurisdiction. Rather, the lower court retains jurisdiction to do acts it is expressly empowered to do by statutes or the Rules of this Court within the periods of time provided for doing them by the statute or Rule. Id. at 614-15. Thus, a circuit court may continue to exercise jurisdiction within the 21-day period provided by Rule 1:1 even if a notice of appeal is filed earlier.3
However, in this case, Dr. Bonanno filed her notice of appeаl after the 21-day period had elapsed and she has not cited any authority under which the circuit court may have retained jurisdiction after she filed it. She argues that
opinion as to whether or how the circuit court may dispose of them when it reacquires jurisdiction of the case on remand.
Dr. Bonanno also argues that the adoption order is void ab initio for several reasons. She quotes our opinion in Virginian-Pilot Media Companies, LLC v. Dow Jones & Co., Inc., 280 Va. 464, 469-70 (2010), that such orders
“are absolute nullities, and may be impeached directly or collaterally by all persons, anywhere, at any time, or in any manner; and may be declared void by every court in which they are called in question.” Barnes[ v. American Fertilizer Co., 144 Va. 692, 705 (1925)]. . . . “The point may be raised at any time, in any manner, before any court, or by the court itself.” Humphreys[ v. Commonwealth, 186 Va. 765, 772 (1947)].
Accordingly, she continues, the Court of Appeals should have declared the adoption order void аnd we should do so now. We again disagree.
We recently clarified the scope of our Virginian-Pilot Media opinion in Watson v. Commonwealth, 297 Va. 347 (2019). In Watson, we emphasized that “no majority of this Court has ever held that standing is irrelevant when a judgment is challenged as void ab initio.” 297 Va. at 352. Further, “even the plurality opinion in Virginian-Pilot Media limited its application to judgments challenged as void for lack of subject-matter jurisdiction.” Id. Finally, the question of the circuit court’s subject-matter jurisdiction was properly before us in Virginian-Pilot Media because the appellant had followed a valid method to bring the appeal: it had filed a motion to intervene in the circuit court, which denied the motion, and then appealed from the denial. Id. at 352-53.
Those circumstances are not present here. First, although Dr. Bonanno characterizes part of her argument that the adoption order is void ab initio as a claim that the circuit court lacked subject-matter jurisdiction, such jurisdiction “is the power granted through constitution or statute to adjudicate a class of cases or controversies.” Virginian-Pilot Media, 280 Va. at 467. In Virginian-Pilot Media, the circuit court lacked subject-matter jurisdiction because the General Assembly had not created a cause of action or method of procedure for a publication to seek an
order declaring that it meets the qualifications in
The Court of Appeals therefore correctly declined to consider Dr. Bonanno’s arguments given the posture of the case there. However, although the Court of Appeals lacked jurisdiction to hear Dr. Bonanno’s petition for appeal in that court, we do have jurisdiction under
To conclude our analysis of this issue, we reiterate that there is no error in the Court of Appeals’ judgment and we will affirm it. We express no opinion as to whether the adoption order may be vоid ab initio for other reasons that may be presented collaterally, such as for extrinsic fraud under
whether the proceedings in this case tolled the six-month limitations period provided in
Finally, in light of Dr. Bonanno’s emphatic reliance on the language in Virginian-Pilot Media, which we took from Barnes and earlier cases, we reiterate our observation in Watson that the principle stated in Virginian-Pilot Media applies narrowly, only to orders entered without subject-matter jurisdiction. Watson, 297 Va. at 352. That limitation predated Watson. See Virginian-Pilot Media, 280 Va. at 469 (describing the order challenged there as “entered in a case over which [a court] has no subject matter jurisdiction”) (emphasis added); Barnes, 144 Va. at 705 (“To the extent, therefore, that the court exceeded its authority, or its jurisdiction, over the subject matter embraced in the decrees, they are аbsolute nullities, and may be impeached directly or collaterally by all persons, anywhere, at any time, or in any manner; and may be declared void by every court in which they are called in question.”) (emphasis added).
We go still further today, declaring that the language in Barnes that orders void even for lack of subject-matter jurisdiction may be challenged “by all persons, anywhere, at any time, or in any manner,” 144 Va. at 705, is a rhetorical flourish that does not accurately state the law, now or at the time Barnes was decided. To the contrary, in Wade v. Hancock, 76 Va. 620 (1882), the earliest case cited for the principle in Barnes, we said “[a] void judgment is ex vi termini a nullity, and may be so declared and treated by this court, and every other, when the validity or invalidity of the judgment is a question to be determined either in a direct or collateral proceeding.” Id. at 626. Thus, a challenge that an order is void ab initio, even for lack of subject-matter jurisdiction, may be raised only in a valid direct or collateral proceeding where the voidness of the order is properly at issue. This limitation is further demonstrated by Shelton
v. Sydnor, 126 Va. 625 (1920), also cited in Barnes, where we said that “[a] judgment rendered by a court which had no jurisdiction of the subject-matter is a nullity, and may be so treated by all persons anywhere at any time and in any manner. It has no existence as a valid judgment.” Id. at 626.
The implication when reading Shelton and Wade together is that those who believe that an order is void because the court that entered it lacked subject-matter jurisdiction may take the risk of putting it to the test by violating it, at least when it was the product of an adversarial proceeding and is amenable to being violated. Then, if the party in whose favor it was rendered institutes a proceeding to enforce it against him or her, he or she may raise the argument that it is void and a nullity in defense. Of course, if the defense subsequently proves unsuccessful, he or she would then face the consequences of disobedience.
Alternatively, one who believes that an order affecting his or hеr rights is void may challenge it at less risk in an action seeking a declaratory judgment. See, e.g., Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 71, 74 (1998) (affirming a declaratory judgment that an earlier order was void ab initio). The General Assembly did not enact Virginia’s first declaratory judgment statute until 1922, after Shelton and Wade were decided. 1922 Acts ch. 517. We have also subsequently recognized that the 21-day period provided by Rule 1:1 does not apply to a motion to vacate or set aside a judgment on the ground that it was void ab initio when the motion was filed by a party to the proceeding in which the putative judgment was entered. Collins v. Shepherd, 274 Va. 390, 395, 402-03 (2007) (holding that Rule 1:1 did not bar a party from filing a motion to vacate a judgment more than 21 days after its entry when the judgment was void ab initio); cf. Singh v. Mooney, 261 Va. 48, 54 (2001) (holding that a circuit court lacked jurisdiction under Rule 1:1 over a motion to vacate after the 21-day period had elapsed because
the order being challenged was not void ab initio). See also Burrell v. Commonwealth, 283 Va. 474, 477, 479-81 (2012) (holding that a circuit court erred by denying a defendant’s motion to vacate his sentence in a probation revocation proceeding because the sentencing order was void ab initio).
B. ATTORNEY’S FEES
Dr. Bonanno also asserts in her final assignment of error that the Court of Appeals abused its discretion by awarding James appellate attorney’s fees under Rule 5A:30(b). We again disagree.
Rule 5A:30(b)(1) provides in relevant part that “[i]n any case . . . involving adoption under Chapter 12 (§ 63.2-1200 et seq.) of Title 63.2, a party may request an award of attorney fees incurred in the appeal of the case by making said request” in his or her brief to the Court of Appeals.4 When such a request is made, “the Court of Appeals may award to a party who has
made such request, all of their attorney fees, or any part thereof, or remand the issue to the circuit court as directed in the mandate order for a determination thereof.” Rule 5A:30(b)(2).
Dr. Bonanno argues that the Court of Appeals should not have awarded James appellate attorney’s fees because her arguments were not frivolous or advanced for an improper purpose. However, frivolousness or improper purpose are grounds for imposing sanctions under
When reviewing the decision of a lower court committed to its discretion, we do not substitute our judgment for that of the lower court. See, e.g., Carter v. Commonwealth, 293 Va. 537, 543 (2017) (“In evaluating whether a trial court abused its discretion, we do not substitute our judgment for that of the trial court.”) (internal quotation marks and omission omitted). Rather, under the abuse of discretion standard, “the court has a range of choice, and . . . its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011) (internal quotation marks omitted). In this case, the Court of Appeals expressly stated that it had “reviewed and considered the entire record in this case” when it decided to award fees to Jamеs. It thereby indicated that it had considered all the equities of the case as the Rule requires.
Dr. Bonanno also argues that the General Assembly recently recognized that legal custodians, including her, should be made parties to an adoption proceeding by amending Code
Accordingly, on this record, the Court of Appeals did not abuse its discretion in awarding James appellate attorney’s fees. We will remand the case to that court for remand to the circuit court for a determination and award of appropriate appellate attorney’s fеes incurred in the Court of Appeals and in the remand proceeding in the circuit court only, to the exclusion of the proceedings in this Court.
III. CONCLUSION
For the reasons set forth above, we hold that there is no error in the judgment of the Court of Appeals. We therefore affirm its judgment and remand for further proceedings consistent with this opinion.
Affirmed and remanded.