CAV ISSUES IMPORTANT APPEALABILITY RULING
(Posted February 18, 2020) Appellate lawyers are always on the lookout for groundbreaking decisions on which orders are appealable. Today, a panel of the Court of Appeals of Virginia hands down a published opinion that interprets some tricky statutory language relating to family-abuse protective orders. The case is Jacobs v. Wilcoxson, and comes from the City of Richmond.
Wilcoxson petitioned the local JDR court for such a protective order against Jacobs. The court issued a preliminary order after an ex parte hearing, and scheduled a hearing on a permanent order for fifteen days later. At that hearing, a judge ruled that the petitioner hadn’t made out a case, so the court denied the petition.
Wilcoxson appealed, and a circuit-court judge reached the opposite conclusion; he issued the order, granting relief for two years. Jacobs argued unsuccessfully in a motion to vacate that the JDR court’s denial of the petition wasn’t appealable.
On appeal, the CAV today takes up this relevant language from the governing statute:
From any final order or judgment of the juvenile court affecting the rights or interests of any person coming within its jurisdiction, an appeal may be taken to the circuit court within 10 days from the entry of a final judgment, order or conviction and shall be heard de novo…. Protective orders issued pursuant to § 16.1-279.1 in cases of family abuse … are final orders from which an appeal may be taken.
Jacobs agreed that if the statute contained only the first sentence, the appeal would be proper. But he urged that the second sentence is the one that applies directly to protective-order appeals. And that sentence allows an appeal only after the JDR court issues a protective order; not when it refuses to do so.
In a short opinion, Judge AtLee spells out that the better reading of the statute is that appeals are permissible regardless of the JDR court’s ruling. The court today rules that the second sentence should be viewed “as expanding, rather than limiting, the scope of the statute.”
But is a protective order final? By its nature, the issuing court retains continuing jurisdiction to shepherd its enforcement, and to modify it. In theory, an order isn’t appealable until it’s final. But the legislature has built appealability into the statute, by the plain language of the second sentence above. The court also observes that the narrower construction that Jacobs urges would lead to an anomalous result, where one party only could appeal a loss. Because the statute is designed to protect victims of domestic violence, the proper approach it permit these appeals.