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Spear v. Omary

Supreme Court of Virginia

April 11, 2019

James B. Spear, Jr., Appellant,
v.
Nawara T. Omary, Appellee.

          Court of Appeals No. 0064-17-4

         Present: All the Justices

         Upon an appeal from a judgment rendered by the Court of Appeals of Virginia.

         This appeal arises from a Court of Appeals decision affirming a judgment of the circuit court, which held that the juvenile and domestic relations district court ("JDR court") had no jurisdiction to modify an award of child support because the case had never been expressly remanded to the JDR court for this purpose. On appeal, James Spear argues that the JDR court did have jurisdiction because he had earlier withdrawn an appeal from the JDR court to the circuit court. The remand, Spear contends, happened automatically by operation of law. We agree and reverse.

         I.

         Spear and Nawara Omary were divorced by an order of the circuit court in 2010. The final order of divorce incorporated their Support, Property and Custody Agreement, in which Spear agreed to pay $3, 500 per month in child support for the parties' two children. In 2011, the circuit court granted a motion by the Department of Social Services, Division of Child Support Enforcement ("DCSE") to reopen the case, intervene in the matter, and transfer the case to the JDR court. The order stated "[t]hat the establishment, modification and enforcement of child support and maintenance . . . shall be transferred forthwith to the [JDR court] which is hereby found to be an appropriate forum." J.A. at 21.

         In 2013, Spear noted an appeal to the circuit court after the JDR court had denied his request to modify child support that had alleged a material change in circumstances. He subsequently withdrew that appeal, and the circuit court's order stated, in its entirety, "Defendant JAMES B. SPEAR, JR. hereby withdraws his appeal in the above captioned matter; it is therefore ORDERED AND ADJUDGED, that the appeal in the above captioned matter is hereby withdrawn." Id. at 24.

         In 2015, DCSE filed a motion in the JDR court to modify the child support order, also alleging a material change in circumstances. In March 2016, the JDR court granted the motion and reduced Spear's child support obligation to $1, 088 per month, finding that Spear's "income ha[d] been decreasing" while Omary's had "increased." Id. at 32-34 (the "2016 Order"). Omary noted her appeal to the circuit court and argued that the JDR court had never possessed jurisdiction to enter the 2016 Order. The circuit court agreed, vacated the 2016 Order, and dismissed the case - thereby leaving the child support obligation in the divorce decree "in full force and effect." Id. at 45. Spear appealed to the Court of Appeals, which affirmed the circuit court's ruling in an unpublished opinion.

         II.

         Spear argues on appeal that Code § 16.1-106.1(F), by "operation of law," effects an "automatic remand" whenever a circuit court enters an order noting the appellant's withdrawal of an appeal from the JDR court. Appellant's Br. at 9, 11-16, 19-20. For this reason, Spear contends, both the Court of Appeals and the circuit court erred by concluding otherwise and by holding that the circuit court, not the JDR court, had jurisdiction to modify the child support order. We agree.

         Code § 16.1-106.1(F) states, in relevant part, that when a party withdraws an appeal from the JDR court, "[u]nless the circuit court orders that the case remain in the circuit court, the case shall be remanded to the [JDR] court for purposes of enforcement and future modification and shall be subject to all the requirements of § 16.1-297." Code § 16.1-297, in turn, states in relevant part that "[u]pon the rendition of final judgment upon an appeal from the [JDR] court, the circuit court shall cause a copy of its judgment to be filed with the [JDR] court within twenty-one days of entry of its order" and that "[i]n the event such circuit court does not dismiss the proceedings or discharge [the] child or adult, the circuit court may remand the child or adult to the jurisdiction of the juvenile court."

         We find that Code § 16.1-106.1(F) does not require a circuit court to expressly remand a matter to the JDR court upon a withdrawn appeal. Instead, that statute states that "[u]nless" the circuit court specifically articulates in its withdrawal order that the case will remain within its jurisdiction, "the case shall be remanded to the [JDR] court." Code § 16.1-106.1(F). This provision gives the circuit court the power to order that the case "remain" within its jurisdiction, id., but requires that the case be remanded to the JDR court if the circuit court fails to exercise that power. The requirement in Code § 16.1-297 that the circuit court, "[u]pon the rendition of final judgment," file a copy of its judgment with the JDR court does not affect our conclusion that Code § 16.1-106.1(F) operates to remand the case by operation of law, without more. No such final judgment was rendered in this case. Thus, when the circuit court failed to expressly retain jurisdiction, Code § 16.1-106.1(F) operated to remand the case to the JDR court.

         For this reason, the JDR court had jurisdiction to enter the 2016 Order, and the circuit court and the Court of Appeals erred by holding otherwise. We reverse the judgment of the Court of Appeals, vacate the circuit court's order annulling the JDR court's 2016 Order, and remand the case to the circuit court for proceedings consistent with the views expressed herein.

         This order shall be published in the Virginia Reports and certified to the Court of Appeals of Virginia and ...


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