                        COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Bumgardner and Senior Judge Hodges
Argued at Chesapeake, Virginia


ALVIN W. CROOM AND
 BONNIE C. CROOM
                                           MEMORANDUM OPINION * BY
v.   Record No. 2134-00-1                   JUDGE RICHARD S. BRAY
                                                APRIL 3, 2001
KATHLEEN C. BYRUM AND
 RANDY L. BYRUM


              FROM THE CIRCUIT COURT OF YORK COUNTY
                  N. Prentis Smiley, Jr., Judge

          McClanahan Ingles (Martin, Ingles & Ingles,
          Ltd., on briefs), for appellants.

          Lois N. Manes; Mark W. Byrum, Jr. (The Byrum
          Law Offices, P.C., on brief) for appellees.


     Alvin W. Croom and Bonnie C. Croom (appellants) appeal an

order of the trial court awarding attorney's fees to Kathleen C.

Byrum and Randy L. Byrum (appellees), following appellants'

nonsuit of the subject proceedings.    Appellants contend the trial

court was without authority to award such relief.      We agree and

reverse the disputed order.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     On August 7, 1998, appellants filed a "Notice And Motion To

Amend Visitation" in the York County Juvenile and Domestic

Relations District Court (J&D court), requesting increased

visitation with their grandchildren and an order directing

Kathleen C. Byrum and "her live-in male companion" to "undergo

psychiatric, parenting and substance abuse evaluations."

Appellees responded, with a "Joint Brief in Opposition" that

included a motion for "reasonable attorneys fees and costs . . .

incurred" incident to the proceedings.   Following two "conference

call[s]" with the parties and counsel, the J&D court denied

appellants' motion and ordered the "matter removed from [the]

docket," without addressing appellees' request for fees and costs.

     On October 1, 1999, appellants appealed to the trial court.

Thereafter, on October 28, 1999, appellees renewed the motion in

the J&D court for attorney's fees, and appellants moved to quash,

challenging the continuing jurisdiction of the J&D court to

entertain the issue.

     Subsequent proceedings in the circuit court, originally

scheduled for May 22, 2000, were rescheduled for July 18, 2000.

On July 14, 2000, upon motion of appellants, the trial court

entered an order nonsuiting "the appeal." 1   Thereafter, on July

21, 2000, appellees lodged a "Renewal Of Joint Motion For Award Of

Attorney Fees" with the trial court.    Following a related hearing


     1
         Appellees do not challenge the order of nonsuit.


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on August 4, 2000, the court awarded appellees "attorney's fees

and costs in this matter" of $8,000, specifically noting that the

relief was not "any type of sanction relative to the nonsuit" but

resulted from a finding that appellants had "used the courts

inappropriately and . . . [were] proponents of an unnecessary

litigation."   This appeal followed.

     Code § 8.01-380 provides a party "an absolute right to one

nonsuit" of an "action," subject to certain limitations

inapplicable to the instant cause.      Nash v. Jenell, 227 Va. 230,

237, 315 S.E.2d 825, 829 (1984).   The "'action'" contemplated by

Code § 8.01-380 "refers to the action then pending before the

court, namely the . . . claims remaining in a case at the time

the nonsuit request is made."    Dalloul v. Agbey, 255 Va. 511,

514, 499 S.E.2d 279, 281 (1998).   "The right to . . . a nonsuit

on the eve of trial, notwithstanding a defendant's loss of time

and expense incurred in preparation, . . . is a powerful

tactical weapon in the hands of a plaintiff."      Trout v.

Commonwealth Transp. Comm'r, 241 Va. 69, 73, 400 S.E.2d 172, 174

(1991).   Accordingly, Code § 8.01-380(B) expressly provides that

"[o]nly one nonsuit may be taken to a cause of action . . ., as

a matter of right."   Should the court thereafter permit

"additional nonsuits," the court "may assess costs and

reasonable attorney's fees against the nonsuiting party."      Code

§ 8.01-380(B).



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     Thus, the order of nonsuit entered by the trial court on

July 14, 2000, the first in the instant cause, was in accordance

with appellants' exercise of a statutory right to terminate the

proceedings, despite attendant costs and inconvenience to

appellees.   Clearly, under the circumstances, the court was

without authority to then impose such expenses upon appellants.

Moreover, the procedural vehicle indispensable to the relief,

appellants' pending "action" in the trial court, had been

absolutely terminated prior to entry of the putative award.

     We, therefore, reverse the order awarding appellants

attorney's fees and costs incurred attendant to the subject

proceedings.

                                         Reversed and final.




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