Opinion
Record No. 0462-93-4
September 14, 1993
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY H. SELWYN SMITH, JUDGE.
(Gregory A. Porter, on brief), for appellant.
(James F. Hurd, Jr., on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Susan Terry Hasty ("mother") appeals the order of the circuit court granting her motion for voluntary nonsuit but holding that the custody orders issued by the juvenile and domestic relations district court remained in effect. The only issue on appeal is the effect of mother's voluntary nonsuit in the circuit court on the orders of the district court awarding custody to Dennis Roland Hasty ("father").
Mother asserts that, when the circuit court issued its order granting her motion for nonsuit, it removed jurisdiction from the district court and thereby nullified the lower court's previous orders pertaining to custody of the parties' daughter. Father argues that the nonsuit did no more than remove the pendency of the circuit court appeal and return the parties to the positions they were in prior to the filing of the appeal.
Code § 16.1-298(A) states that, except for certain circumstances not involved here, "a petition for or the pendency of an appeal or writ of error shall not suspend any judgment, order or decree of the juvenile court. . . ." "Code § 16.1-298 provides that an appeal shall not suspend any order of the juvenile court unless ordered by the judge of the juvenile court or circuit court, or directed by an appellate court." Martin v. Bales, 7 Va. App. 141, 145, 371 S.E.2d 823, 825 (1988).
According to the record, no divorce proceeding had been filed in the circuit court. If it had, Code § 16.1-244(A) expressly provides that the district court orders would remain enforceable "prior to the entry of a conflicting order of any circuit court for any period during which the order was in effect. . . ."
If we were to follow the procedure suggested by mother, the nonsuit in the circuit court would create a void, nullifying the order of the district court but failing to replace it with a superseding custody order issued by the circuit court. That scenario promotes neither consistency in the adjudication of the child's best interests nor efficiency in the administration of justice.
Moreover, the cases cited by mother do not support her assertion that an appeal to the circuit court serves to "eradicate the rulings" of the district court. "In an appeal to the circuit court, the 'advantage' granted to the noncustodial parent is simply the avoidance of the additional burden of proof imposed by the change in circumstances test; in thede novo appeal, the issue is simply what is in the best interests of the child." Peple v. Peple, 5 Va. App. 414, 419, 364 S.E.2d 232, 236 (1988); see Box v. Talley, 1 Va. App. 289, 292, 338 S.E.2d 349, 351 (1986) ("A de novo hearing means a trial anew, with the burden of proof remaining upon the party with whom it rested in the juvenile court."). It does not mean that the existing orders of the district court are nullified. Those orders remain in effect until the circuit court issues superseding orders.
By seeking a nonsuit in the circuit court, mother has placed the proceeding back to where it was prior to the appeal to the circuit court. It is as if no appeal to the circuit court was taken. Hence, the custody order of the district court remains in effect, and that court retains jurisdiction to enforce its orders.
Accordingly, we affirm the decision of the circuit court holding that the orders of the district court remain in effect.
Affirmed.