What better way to celebrate Memorial Day than 1000 or so words about some recent SCOVA appellate arcana?
(You can probably tell by now if this post is for you.)
Last week, SCOVA handed down Bonanno v. Quinn, an opinion that Justice Mims has thoughtfully crammed with nerdiana. If you’re still reading, Bonanno grew out of an adoption proceeding. Dr. Bonanno’s daughter, Elizabeth, married Michael Quinn. Elizabeth had a daughter from an earlier relationship. She and Dr. Bonanno had joint legal custody of the child; Elizabeth had physical custody and Dr. Bonanno had visitation rights.
Elizabeth died in October 2018. Two months later, Michael petitioned to adopt the child. He argued that Dr. Bonanno’s consent was unnecessary because grandparents have no parental rights. The circuit court entered an order of investigation.
The circuit court entered an order of adoption. Quinn sent a copy to Dr. Bonanno, who filed a notice of appeal, several motions in the trial court, and a petition for appeal in the Court of Appeals. Quinn moved to dismiss the appeal, pointing out that Dr. Bonanno had never moved to intervene. The circuit court denied Dr. Bonanno’s motions on the ground that her notice of appeal deprived it of jurisdiction.
When Dr. Bonanno appealed, a unanimous SCOVA affirmed the CAV’s judgment.
SCOVA first explained that Dr. Bonanno lacked standing to appeal. Code § 17.1-405 says that “[a]ny aggrieved party may appeal to the Court of Appeals from” an adoption order. The Court pointed out that an aggrieved party is not the same as an aggrieved person. The General Assembly has passed dozens of statutes using the the term “aggrieved party” or “party aggrieved,” and more than one hundred using the term “aggrieved person” or “person aggrieved.” In at least some of those statutes, it used the terms differently. So the Court determined that the General Assembly knew the difference between persons and parties, and presumed that it chose its words carefully in Code § 17.1-405
The Court moved on to the question of what kinds of parties can appeal. A party is generally a person named in a lawsuit. More specifically, a “party” 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).
Of course, parties come in different flavors, and not all of them need to be named in a lawsuit. For example, a non-litigant can be a necessary party, an indispensable party, or a proper party.
But here, precedent told the Court that the General Assembly did not intend the word “party” in Code § 17.1-405 to include those who might, should, or must be joined as parties; it included only those who actually have been named or joined. The Court thus held that “that the term ‘aggrieved party’ in Code § 17.1-405 (emphasis added) confers standing to bring an appeal to the Court of Appeals only on those who were litigants joined in the proceeding from which the judgment appealed from was taken.”
Dr. Bonanno, of course, was not such a party. So she lacked standing to and the CAV was right to dismiss her appeal.
SCOVA also rejected Dr. Bonanno’s argument that the circuit court had erred by dismissing her motions. The Court pointed out that filing a notice of appeal generally deprives a trial court of jurisdiction to act unless a statute or rule provides otherwise. Thus, for example, a trial court retains jurisdiction to act under Rule 1:1 for 21 days after entry of a final order despite the filing of a notice of appeal.
Dr. Bonanno next argued that the adoption order was void ab initio–so under Virginian-Pilot Media Companies, LLC v. Dow Jones & Co., Inc., 280 Va. 464, 469-70 (2010), it was an absolute nullity that could be “impeached directly or collaterally by all persons, anywhere, at any time, or in any manner.”
Yeah, about that . . .
Perhaps just the teensiest bit embarrassed by the scope of Virginian-Pilot‘s sweeping language–and definitely sounding not at all defensive–SCOVA explained that it had already dialed back that case’s holding:
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.
The Court reminded us that it had already
told us not to take Virginian-Pilot seriously held in Watson that the principle stated in Virginian-Pilot applies narrowly. In all events, it explained that the language “that orders void even for lack of subject-matter jurisdiction may be challenged ‘by all persons, anywhere, at any time, or in any manner’ . . . is a rhetorical flourish that does not accurately state the law” now or, really, ever.
Finally, Dr. Bonanno insisted that the CAV abused its discretion by awarding Quinn attorney’s fees because her arguments were neither frivolous nor advanced for an improper purpose.
Again, no dice: SCOVA explains that frivolous/improper purpose is the standard for imposing sanctions under Code § 8.01-271.1. To award appellate attorney’s fees in an adoption case, Rule 5A:30 says that “the Court of Appeals shall not be limited to a consideration of whether a party’s position on an issue was frivolous or lacked substantial merit but shall consider all the equities of the case.”
Here, the CAV said that it had reviewed and considered the whole record. In that case, Justice Mims wrote, SCOVA could not hold that it had abused its discretion. After all, SCOVA does not substitute its judgment for that of the lower court under abuse-of-discretion review. Instead, the abuse of discretion standard gives the lower court a range of choices. SCOVA will not disturb its decision as long as the court stays within that range, as the CAV did here.