                       COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Annunziata
Argued at Richmond, Virginia


LINDA M. COMER
                                          MEMORANDUM OPINION * BY
v.   Record No. 0157-00-2                  JUDGE LARRY G. ELDER
                                             DECEMBER 19, 2000
ROBERT B. COMER, JR.


            FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
                   James F. D'Alton, Jr., Judge

           Beverly M. Murray (The Law Offices of Beverly
           McLean Murray, on brief), for appellant.

           No brief or argument for appellee.


     This matter arises out of the 1997 request of Linda Comer

(mother) for custody of the minor child (child) born of her

marriage to Robert B. Comer, Jr. (father).      Both mother and

father were proceeding pro se at that time.      The circuit court

denied mother's request for custody but said it would consider

awarding visitation.   As permitted by Code § 16.1-266(D), the

court appointed Michele L. Ferris as guardian ad litem for the

child.   Following a hearing on the visitation issue, which

included an in camera interview with the child, the court

entered an order granting the request of the guardian ad litem

that "there shall be no visitation between [mother and child]


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
until such time as the child initiates any visitation with the

mother."

     Mother then obtained counsel, and following the denial of a

motion to reconsider, mother filed a notice of appeal and

indicated that she mailed a copy of the notice to both the

guardian and the appellee father.   The Court of Appeals,

following receipt of mother's notice of appeal and the record of

the proceedings in the trial court, notified mother, mother's

counsel, father, and the child's guardian ad litem of said

receipt.   In bold print in that same notice, the Court advised

mother and her counsel to "consult Part 5A of the Rules [of the

Supreme Court of Virginia] for information on filing times and

other requirements" and indicated that "[f]ailure to comply with

the rules may result in various sanctions, including dismissal

of the appeal."

     When counsel for mother filed mother's opening brief with

this Court, she included a certificate indicating that she

served appellee father with copies of the brief, but the

certificate did not mention the guardian ad litem.    At that

time, the guardian ad litem remained a counsel of record in the

case and was classified as an "opposing counsel" for purposes of

the Rules.   See Rules 1:5, 5A:1.   Pursuant to Rule 5A:20(h),

mother was required to certify that she mailed or delivered the

requisite number of copies of her opening brief to "opposing

counsel on or before the date of filing."    See also Rule

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5A:19(e).   Because mother failed to comply with the requirements

of the Rules, the guardian ad litem did not receive notice of

the filing or a copy of mother's brief and had an inadequate

opportunity to respond in order to protect the interests of the

child.   Mother, therefore, failed to bring a necessary party

before the Court.   See Asch v. Friends of the Community of the

Mount Vernon Yacht Club, 251 Va. 89, 90-91, 465 S.E.2d 817, 818

(1996) (holding that necessary party is one who has an interest

"which is likely either to be defeated or diminished by the

plaintiff's claim" and that "court lacks the power to proceed

with a suit unless all necessary parties are properly before the

court," even where party received notice of appeal).

     Because mother failed to serve a copy of her opening brief

on the guardian ad litem for the minor child, a necessary party

to this appeal, the appeal is dismissed.

                                                   Dismissed.




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