Bonanno v. Quinn

858 S.E.2d 181

Michelina BONANNO

v.James LeRoy QUINN, II

Record No. 200963

Supreme Court of Virginia.

May 27, 2021

Collen M. Quinn (Locke & Quinn, Richmond, on briefs), for appellant.

Laura C. Dove (Stanton Phillips ; Mullett Dove Meacham & Bradley; Goldenberg & Phillips, on brief), Arlington, for appellee.

PRESENT: All the Justices

OPINION BY JUSTICE WILLIAM C. MIMS

In this appeal, we consider whether the Court of Appeals erred by dismissing a petition for appeal filed by a person who was not a party in the proceeding from which the appeal was taken. We also consider whether the Court of Appeals abused its discretion by awarding appellate attorney's fees under Rule 5A:30(b).

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Michelina Bonanno, Ph.D. is the mother of Elizabeth Quinn. Elizabeth married James LeRoy Quinn, II in 2013. Elizabeth had a daughter from a previous relationship with Sean Graham. In a juvenile and domestic relations district court order entered in 2014, Dr. Bonanno and Elizabeth were awarded joint legal custody of the child, Elizabeth was awarded physical custody, and Dr. Bonanno was awarded a visitation schedule.

Elizabeth died in October 2018. In December, James filed a petition for adoption. He asserted that Graham's consent to the adoption was unnecessary under Code § 63.2-1202(H) because of lack of visitation or contact, which is not disputed in this case. He also asserted that Dr. Bonanno's consent was unnecessary because she was not a parent of the child and grandparents have no parental rights.

The circuit court entered an order of reference for an investigation under Code § 63.2-1208. A social worker employed by the Department of Social Services thereafter reported that she had attempted contact with Dr. Bonanno by telephone several times in March 2019, resulting in only exchanges of voicemail messages. She also sent a certified letter on March 13, which was signed for on March 20. After interviewing James and the child, the social worker reported favorably on their relationship and recommended that the court enter a final order of adoption without an interlocutory order and probationary period under Code § 63.2-1210.

In a supplemental memorandum to the court filed on April 12, the social worker reported that Dr. Bonanno contacted her by electronic mail on April 4, arranging to speak by telephone on April 10. The memorandum reported that in the telephone conversation, Dr. Bonanno denied knowledge of James’ petition to adopt the child and denied consent to the adoption. It continued that Dr. Bonanno sent an electronic mail the next day elaborating her concerns, which the memorandum summarized for the court.

The circuit court entered a final order of adoption on April 30, 2019. James sent a copy of the order to Dr. Bonanno by electronic mail after 4:00 p.m. on May 21. On May 30, Dr. Bonanno filed a notice of appeal. On the same day, she filed a motion to unseal the proceeding and to vacate and set aside the final order. In the motion, she made several accusations about James, including that he had concealed his adoption petition from her. She alleged that she promptly retained counsel after she received the adoption order on May 21. She argued that the order was void due to fraud upon the court and lack of notice to a legal custodian. Alternatively, she argued that the court retained jurisdiction to alter the order within six months under Code § 63.2-1216. Finally, she argued that the adoption was not in the best interest of the child. She also filed a motion to stay the finality of the adoption order.

In July, Dr. Bonanno filed another motion asserting that the order was void ab initio on the ground that James had not fulfilled the procedural requirements for a step-parent adoption as required by Code § 63.2-1214.

Dr. Bonanno filed a petition for appeal in the Court of Appeals on September 12. Meanwhile, she sought a hearing in the circuit court on the motions she had filed there. At a September 20 hearing to determine whether the circuit court would hear her motions, James argued that the filing of the notice of appeal divested the circuit court of jurisdiction over the proceedings. Dr. Bonanno countered that the adoption order was void ab initio, and if the circuit court ruled accordingly, it would vitiate the proceedings in the Court of Appeals. The court thereafter issued a letter opinion stating that while a circuit court may consider whether an earlier order is void ab initio after the 21-day period provided by Rule 1:1 has elapsed, in this case Dr. Bonanno's appeal to the Court of Appeals divested the circuit court of jurisdiction in the matter.

On September 30, James filed a motion to dismiss in the Court of Appeals, noting that Dr. Bonanno had not filed a motion to intervene in the adoption proceeding below. He asserted that she had actual and constructive notice as a result of the Department of Social Services’ attempts to contact her, and argued that as a non-party she had no standing to appeal.

Meanwhile, the circuit court entered an order on October 7 denying Dr. Bonanno a hearing on her motions for the reasons stated in its letter opinion. On October 23, Dr. Bonanno filed a second notice of appeal relating to the circuit court's October 7 order. The Court of Appeals consolidated the two appeals.

In an unpublished order, a panel of the Court of Appeals granted James’ motion and dismissed the appeals. It ruled that because Dr. Bonanno had neither moved to intervene nor entered an appearance before entry of the final order, she was not a party to the proceeding below and so lacked standing to appeal. It denied her request for appellate attorney's fees but granted James’ request. It remanded for the circuit court to consider an appropriate award under Rule 5A:30(b).

We awarded Dr. Bonanno this appeal.

II. ANALYSIS

We review the Court of Appeals’ interpretations of statutes and the Rules of this Court de novo. LaCava v. Commonwealth , 283 Va. 465, 469-70, 722 S.E.2d 838 (2012).

A. STANDING TO APPEAL

Dr. Bonanno first asserts, in two of three assignments of error, that the Court of Appeals erred by granting James’ motion to dismiss her appeals to that court on the ground that she was not a party to the proceeding below. We disagree.

Code § 17.1-405 provides that "[a]ny aggrieved party may appeal to the Court of Appeals from" an adoption order. (Emphasis added.) The dispositive issue is the meaning of the word "party."

The first step in addressing that issue is to note that "party" is not merely a synonym of "person." The Code of Virginia is replete with examples where the General Assembly has afforded certain litigation rights to either parties or persons. A cursory search reveals dozens of statutes where the General Assembly has used the term "aggrieved party" or "party aggrieved," and more than one hundred where it has used the term "aggrieved person" or "person aggrieved." This is a distinction with a difference.

For example, the Government Data Collection and Dissemination Practices Act, Code §§ 2.2-3800 through -3809, provides that "[a]ny aggrieved person may institute a proceeding for injunction or mandamus against any person or agency that has engaged, is engaged, or is about to engage in any acts or practices in violation" of the act, Code § 2.2-3809, thereby creating a private right of action to seek the specified forms of relief. This illustrates that there are no parties in the absence of a proceeding; the aggrieved person becomes a party by instituting it.

This principle is further demonstrated by the Administrative Process Act, Code §§ 2.2-4000 through -4032. Code § 2.2-4026(A) provides that "[a]ny person affected by and claiming the unlawfulness of any regulation or party aggrieved by and claiming unlawfulness of a case decision ... shall have a right to the direct review thereof." (Emphases added.) A regulation has a restrictive effect by which a person may be aggrieved even in the absence of litigation. A case decision, however, binds only those who are parties to the case and whose rights have been adjudicated. Therefore, the statute limits those who may seek review of a case decision to those who are parties to that decision.

These examples illustrate that the General Assembly knows the difference between persons and parties. When it has shown that it knows and intends a difference between two terms by using them in different ways, see Commonwealth v. Commonwealth ex rel. Hunter Labs., LLC , 296 Va. 32, 38, 817 S.E.2d 318 (2018) (comparing the use of "proceeds" and "net proceeds" in statutes), we presume that it chose with care the words it used when it enacted the statute we are construing. Addison v. Jurgelsky , 281 Va. 205, 208, 704 S.E.2d 402 (2011).

The conclusion that the term "aggrieved party" in Code § 17.1-405 means that only a "party" may appeal to the Court of Appeals is only the first step in our analysis. The next step is determining what kind of "party" the General Assembly meant.

The general legal definition of "party" relevant here 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) (emphasis added). " ‘Those persons who institute actions for the recovery of their rights, or the redress of their wrongs, and those against whom the actions are instituted, are the parties to the actions.’ " Id. at 1351 (quoting Oliver L. Barbour, A Summary of the Law of Parties to Actions at Law and Suits in Equity 18 (1864)) (emphasis in original).

There are other, specific meanings of "party" when modified by various adjectives that include not only actual litigants who have already been joined in a legal proceeding but, for example, those who could be joined, those who should be joined, or those who must be joined, but who have not been joined...