THE CIRCUIT COURT OF KING AND QUEEN COUNTY Jeffrey W. Shaw,
M. Poss (DeFazio Bal, P.C., on brief), for appellant.
Monique W. Donner (Breckenridge Ingles; Martin Ingles &
Hensley, Ltd., on brief), for appellee.
Present: Chief Judge Huff, Judges Petty and Beales Argued at
WILLIAM G. PETTY JUDGE.
appeal, we conclude that the trial court was not required to
stay the scheduled trial when one of the parties filed a
notice of appeal to this Court in an attempt to appeal an
interlocutory order that was not subject to appeal. We also
conclude that the trial court's enforcement of the
pretrial scheduling order and the pretrial conference order
was not an abuse of its discretion. We therefore affirm the
trial court's decisions.
Kay Reaves (wife) and James Kelly Tucker (husband) were
married in 2009. The couple separated in 2014. In December of
that year, husband filed a complaint seeking determination of
his temporary support obligation, but not divorce. Wife
counter-claimed for divorce.
pretrial conference was held on June 29, 2015, when both
parties were represented by counsel. To memorialize the
stipulations and agreements made by the parties at the
pretrial conference, the trial court entered two orders on
August 24, 2015. A pretrial conference order (conference
order) established, among other things, the stipulations and
burdens of proof regarding equitable distribution and spousal
support. The pretrial scheduling order (scheduling order)
established a trial date of March 17, 2016. It required wife
to submit to husband by October 27, 2015, appraisals of any
property owned by husband prior to the marriage that wife
contended had increased in value during the marriage. Husband
was required to submit to wife by January 10, 2016,
appraisals of any property for which husband contested the
appraisal submitted by wife. The scheduling order required
both parties to file with the trial court fifteen days prior
to trial a list of exhibits and proposed witnesses. It
warned, "Any exhibit or witness not so identified and
filed will not be received in evidence, except in rebuttal or
for impeachment . . . ." Additionally, the scheduling
order provided, "Absent leave of court, any motion
in limine which requires argument exceeding five
minutes shall be duly noticed and heard before the day of
trial." Finally, it established, "Continuances will
only be granted by the court for good cause shown."
Neither party objected to either order.
January 8, 2016, the trial court granted wife's
counsel's request to withdraw. On February 25, 2016, the
trial court denied wife's request for a continuance.
Wife, acting pro se, filed a notice of appeal on March
7, 2016, seeking review by this Court of the trial
court's order denying her request for a continuance. Wife
did not request this Court to stay the proceedings in the
trial court pending resolution of her appeal. This Court
dismissed the appeal without prejudice on March 22, 2016,
because the appeal "ha[d] been filed prematurely as it
was not a final dispositive order entered in that
case." On March 17, 2016, which was the date set
by the scheduling order for trial, the trial court denied
wife's request to stay the trial on the basis of the
pending appeal and denied her new motion for a continuance.
The trial court granted husband's request to prohibit
wife from calling witnesses or introducing exhibits that had
not been disclosed pursuant to the deadline imposed by the
scheduling order. Although husband had disclosed his list
prior to the deadline, wife had made no disclosure. The trial
court ruled, however, that wife herself could testify and
that she could present witnesses or exhibits in rebuttal to
or impeachment of husband's evidence.
assignments of error essentially flow from the trial
court's enforcement of the conference order and the
Wife's Motion to Stay Trial Pending Her Interlocutory
argues that the trial court erred by denying her motion to
stay, which she made at the March 17, 2016
trial. Her assignment of error states,
At the time of the March 17, 2016 hearing, an appeal was
pending in the Court of Appeals of Virginia regarding
Wife's appeal of the trial court's February 25, 2016
Order. Accordingly, the Court of Appeals of Virginia had
jurisdiction over the parties and the subject matter of the
suit. The trial court did not have jurisdiction on March 17,
2016 to hear any evidence or make any decisions regarding the
parties' divorce matter.
first note that wife concedes that this Court lacked subject
matter jurisdiction to address the merits of her appeal from
the February 25, 2016 order. Wife nevertheless argues that
the mere filing of the notice of appeal transferred
jurisdiction over the case to this Court, and divested the
trial court of jurisdiction to proceed until this Court
dismissed the appeal. Simply put, the issue before us is
whether a trial court must stay all proceedings in a case
when a party files a notice of appeal regarding an
interlocutory order over which this Court lacks subject
challenge to a trial court's jurisdiction is a question
of law that is reviewed de novo on appeal. Mayer
v. Corso-Mayer, 62 Va.App. 713, 724-25, 753 S.E.2d 263,
well-established that "[t]he orderly administration of
justice demands 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 was
taken must cease." Greene v. Greene, 223 Va.
210, 212, 288 S.E.2d 447, 448 (1982) (emphasis added).
"When a party files a notice of appeal, that notice
'effectively transfers jurisdiction from the lower court
to the appellate court and places the named parties within
the jurisdiction of the appellate court.'" McCoy
v. McCoy, 55 Va.App. 524, 528, 687 S.E.2d 82, 84 (2010)
(quoting Watkins v. Fairfax Cty. Dep't of Family
Servs., 42 Va.App. 760, 771, 595 S.E.2d 19, 25 (2004)).
"the Court of Appeals of Virginia is a court of limited
jurisdiction. Unless a statute confers jurisdiction to this
Court, we are without power to review an
appeal." Prizzia v. Prizzia, 45 Va.App.
280, 286, 610 S.E.2d 326, 329 (2005) (quoting Canova
Elec. Contracting, Inc. v. LMI Ins. Co., 22
Va.App. 595, 599, 471 S.E.2d 827, 829 (1996)). "While a
court always has jurisdiction to determine whether it has
subject matter jurisdiction, a judgment on the merits made
without subject matter jurisdiction is null and void."
Porter v. Commonwealth, 276 Va. 203, 228, 661 S.E.2d
415, 427 (2008) (quoting Morrison v. Bestler, 239
Va. 166, 170, 387 S.E.2d 753, 755-56 (1990)). Consequently, a
notice of appeal cannot transfer to this Court jurisdiction
over the subject matter of a case if that subject matter is
not within this Court's limited
wife appealed to this Court on March 7, 2016, the trial
court's February 25, 2016 order denying her motion for a
continuance. This Court had jurisdiction to determine whether
the appeal fell within its subject matter jurisdiction. When
this Court determined that the appeal did not, we dismissed
the appeal on March 22, 2016, because the appeal "ha[d]
been filed prematurely as it was not a final dispositive
order entered in that case." Contrary to wife's
argument, this Court never ...