Bearing of Waiver on De Novo Appeal from Juvenile & Domestic Relations District Court
Northern Virginia custody, visitation, spousal support and child support cases may be heard in the Juvenile and Domestic Relations District Courts. Juvenile and Domestic Relations District Courts do not have jurisdiction over divorce or equitable distribution, which is the division of assets and allocation of debts that occurs in a divorce proceeding. To put it simply, Virginia Circuit Courts have jurisdiction over divorce, and all matters ancillary to divorce (custody, visitation, child support, equitable distribution and spousal support) and the Juvenile and Domestic Relations District Courts have jurisdiction over most of the matters ancillary to your divorce, but not the divorce itself. Northern Virginia, like the rest of Virginia, has a Juvenile and Domestic Relations District Court and a Circuit Court in each county or city; Arlington County, City of Alexandria, Loudoun County, Fairfax County and Prince William County.
Juvenile and Domestic Relations District Courts are not courts of record. This means if you choose to appeal your Northern Virginia family law case (custody, visitation, spousal support or child support) to a Circuit Court, the case begins anew, as if no family law case had been brought in the Juvenile and Domestic Relations District Court. Currently, the law in Virginia, per the Virginia Court of Appeals, is that any case is appealable to Circuit Court, even in cases where the parties reach a settlement and enter into a consent order. But, what happens when you waive your right to appeal in the settlement order, or by contract? The Virginia Court of Appeals has not addressed this matter in the civil context, but has upheld waiver of the de novo appeal in an appeal of a criminal conviction to a Circuit Court.
“A waiver . . . may be generally defined as a voluntary abandonment of some known legal right, advantage, or privilege . . . [.]” Travis v. Finley, 36 Va. App. 189, 200 (2001) (quoting The Covington Virginian v. Woods, 182 Va. 538, 547 (1944). It is well-settled that parties often waive rights bestowed upon them by statute. Godfrey v. Commonwealth, 227 Va. 460, 463 (1984) (waiver of statutory right to speedy trial); Norton v. Commonwealth, 19 Va. App. 97 (1994) (waiver of statutory right to independent blood test in DWI case); Williams v. Clinchfield Coal, 213 Va. 445 (1972) (waiver of statutory right to workers’ compensation benefits). If a party has knowledge of the facts that are elementary to the exercise of a statutory right, and intend to relinquish that right through their actions, then they have satisfied the essential elements of waiver. Weidman v. Babcock, 241 Va. 40, 45 (1991); Fox v. Deese, 234 Va. 412, 425 (1987). “With few exceptions, most legal rights – whether common law, statutory, or constitutional – can be waived if the requisite formalities are observed.” Congdon v. Commonwealth, 57 Va. App. 692, 695 (2011).
Statutory Right to Appeal to Circuit Court from J&DR Can be Waived
VA. CODE ANN. § 16.1-296(A) confers a broad grant of jurisdiction upon Circuit Courts in Virginia to hear appeals from any final orders or judgments of the juvenile courts so long as the appeal is taken within ten days of the entry of the final order or judgment from J&DR. Id.; see Cox v. Cox, 16 Va. App. 146 (1993). The Cox Court interpreted the word “any” from 16.1-296(A) to include consent orders; even those that are entered into through counsel, and settle all matters related to a case. See Id. at 148-149.
In 2011, the Virginia Court of Appeals narrowed its interpretation from Cox and recognized the propriety of “enforc[ing] a deliberate, express decision to waive an appeal.” Congdon v. Commonwealth, 57 Va. App. 692, 697 (2011). In interpreting VA. CODE ANN. 16.1-296(A), and applying Virginia law with regard to waiver, the Virginia Court of Appeals rejected the notion that “[t]he indefeasible right of appeal from the district courts cannot be waived under any circumstances.” Congdon, 57 Va. App. at 697. Indeed, “the great majority of courts have found express ‘waivers of appeals generally permissible and enforceable.’” Id. at 698 (quoting U.S. v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001)).
Though there is not a case from the Virginia Court of Appeals directly on point, it seems that a logical extension of the existing law is to allow for waivers to be valid and enforceable. At least one Virginia Circuit Court (Fairfax County) has upheld the validity of these waivers in custody and visitation cases.