Docket – November 13, 2018

Court of Appeals of Virginia

Knight v. Ottrix (P), CAV (Petty) from Norfolk (Martin).

The circuit court had no jurisdiction to enter an order determining that a father was withholding his consent for his child to be adopted.

The child’s long-time custodians petitioned the juvenile & domestic relations court to either (1) accept the biological parents’ consent to adoption of the child, or (2) find that the parents’ consent was being withheld contrary to the child’s interest of the child. After both parents objected to adoption, the JDR court found that they were withholding consent contrary to the child’s best interests.

But the JDR court lacked jurisdiction to making a finding as to withheld consent, because this was not a case of parental placement for adoption. When the JDR court determined that neither parent consented to the adoption, Code § 63.2-1233(3) required it to deny the custodians’ petition.

In this case, the circuit court’s jurisdiction was dependent upon the jurisdiction of the JDR court. The JDR court lacked subject matter jurisdiction to consider consent in a non-parental placement adoption; accordingly, the circuit court lacked derivative subject matter jurisdiction to review on appeal the JDR court’s ruling.

Order vacated.

Brown v. Brown (P), CAV (Petty) from York (Rizk).

Even when one of the former spouses dies, the trial court retains jurisdiction to determine the rights and interests of the parties in marital property when a final decree of divorce has been entered in a bifurcated proceeding pursuant to Code § 20-107.3(A). In this case, the trial court erred in concluding it lacked jurisdiction over equitable distribution of the marital property.

Code § 20-107.3(A) permits the trial court to bifurcate the divorce from ancillary matters, including equitable distribution. Even after the divorce decree becomes final and conclusive, the trial court retains jurisdiction over those other matters.

Ordinarily, the termination of the marriage by death rather than decree ends a court’s jurisdiction to divide the property pursuant to Code § 20-107.3. But when a court bifurcates a divorce proceeding, the equitable distribution of marital property is no longer ancillary to the final divorce decree, but rather becomes, in essence, a distinct case.

Here, once the divorce was final, the former wife had a right to an equitable share of the marital property accumulated during the parties’ 25-year marriage. The trial court’s failure to fully adjudicate her interest in the material fruits of the marriage subverted the goal of equitable distribution to adjust the property interests of the spouses fairly and equitably.

Reversed and remanded.

Merritt v. Commonwealth (P), CAV (Russell) from Page (Ritchie).

The ends of justice require reversing the appellant’s conviction for failure to appear, even though she didn’t raise an ends-of-justice argument either to the trial court or on appeal.

Code § 19.2-128 does not apply to revocation proceedings, so it was error to convict her under that statute for failing to appear on a revocation return date. Although the appellant didn’t argue in the trial court that § 19.2-128 was inapplicable, her conviction for conduct not proscribed by the statute under which she was charged meets the ends-of-justice exception of Rule 5A:18.

The appellant didn’t ask the court to apply the ends-of-justice exception on appeal, and the court has repeatedly refused consider the exception sua sponte. In this case, however, the Commonwealth acknowledged both in briefing and at oral argument that this court could apply the statute under the ends-of-justice exception. The Commonwealth’s raising the exception is sufficient to allow the court to apply it.

Reversed and final judgment.

U.S. District Court – Virginia Western

Doe v. Va. Polytechnic Inst. & State Univ., EDVA at Roanoke (Dillon).

In a campus-sexual-assault case, the accused plaintiff can bring his due-process claims against the University under the pseudonym John Doe. His privacy interest outweighs the presumption of openness in judicial proceedings.

Sexual-assault allegations are a highly personal and sensitive matter, and private, intimate details of the plaintiff’s life are likely to be at issue. Identifying the plaintiff may also put him at risk for physical or mental harm, as well as his accuser. Anonymity poses no prejudice to the defendants, who know both the identities of both the accuser and the accused. These factors outweigh the plaintiff’s age, which weighs against anonymity since he was in his final year of college.

Defendants’ motion to dismiss denied. The parties are directed to use the pseudonyms John Doe and Jane Roe in all further filings.

Doe v. Va. Polytechnic Inst. & State Univ., WDVA at Roanoke (Dillon).

In a campus-sexual-assault case, the accused plaintiff can bring his due-process claims against the University under the pseudonym James Doe. His privacy interest outweighs the presumption of openness in judicial proceedings.

Sexual-assault allegations are a highly personal and sensitive matter, and private, intimate details of the plaintiff’s life are likely to be at issue. Identifying the plaintiff may also put him at risk for physical or mental harm, as well as his accuser. Being only in his second year of college, the plaintiff’s age weighs in favor of anonymity as well. Finally, anonymity poses no prejudice to the defendants, who know both the identities of both the accuser and the accused.

Defendants’ motion to dismiss denied. The parties are directed to use the pseudonyms James Doe and Jan Roe in all further filings.



Categories: Daily Dockets

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