                    COURT OF APPEALS OF VIRGINIA


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


COMMONWEALTH OF VIRGINIA,
 VIRGINIA DEPARTMENT OF SOCIAL
 SERVICES, DIVISION OF CHILD SUPPORT
 ENFORCEMENT, ex rel., JANET MAY                OPINION BY
                                           JUDGE LARRY G. ELDER
v.        Record No. 1870-95-2                 APRIL 9, 1996

RAYMOND M. WALKER

            FROM THE CIRCUIT COURT OF HANOVER COUNTY
                   Richard H. C. Taylor, Judge


          Keith H. Warren, Special Counsel, Virginia
          Department of Social Services (Betsy S. Elliott,
          Senior Special Counsel, Virginia Department of
          Social Services; James S. Gilmore, III, Attorney
          General; William H. Hurd, Deputy Attorney General;
          Siran S. Faulders, Senior Assistant Attorney
          General; Robert B. Cousins, Jr., Senior Assistant
          Attorney General, on brief), for appellant.

          Wilbert L. Sawyer, Jr., for appellee.



     The Commonwealth/Department of Social Services, Division of

Child Support Enforcement (DCSE), ex rel. Janet May, appeals the
circuit court's decision that Raymond M. Walker (father) owed no

child support arrearage.   DCSE contends that the circuit court

lacked jurisdiction to hear father's appeal from the juvenile and

domestic relations district court (J&DR court) where father

posted no appeal bond.   Because the circuit court possessed

jurisdiction over the case, even though father posted no appeal

bond, we affirm its judgment.
                                  I.

                               FACTS

     In May 1986, the J&DR court entered a support order

directing father to pay one hundred dollars per week for the

support of his two minor children.      In March 1994, DCSE filed a

motion for a show cause order with the J&DR court, alleging

father had accrued an arrearage of $2,496.06.     On September 9,

1994, the J&DR court found father in contempt for failure to pay

child support as ordered.   The J&DR court suspended father's jail

sentence on the condition that he make payment on $2,395 in

arrears.
     Father appealed the J&DR court's order to the Circuit Court

of Hanover County.   DCSE objected to the taking of any testimony

from father, arguing that father failed to post an appeal bond as

mandated by Code § 16.1-296(H).    The circuit court overruled

DCSE's objection, heard testimony, and ruled that father owed no

arrears.   The Commonwealth now appeals, arguing that the circuit

court lacked jurisdiction to hear father's appeal.

                                  II.

                            JURISDICTION

     Using Code § 16.1-296 as a foundation, DCSE contends that a

party must post an appeal bond in all appeals from a J&DR court

to a circuit court, where that party owes a support arrearage,

even where such bond is not set by either court.     Code

§ 16.1-296(H) states, in pertinent part:




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               No appeal bond shall be required of a
          party appealing from an order of a juvenile
          and domestic relations district court except
          for that portion of any order or judgment
          establishing a support arrearage or
          suspending payment of support during pendency
          of an appeal. In cases involving support, no
          appeal shall be allowed unless and until the
          party applying for the same or someone for
          him shall give bond, in any amount and with
          sufficient surety approved by the judge or by
          his clerk if there is one, to abide by such
          judgment as may be rendered on appeal if the
          appeal is perfected or, if not perfected,
          then to satisfy the judgment of the court in
          which it was rendered.

(Emphases added).

     DCSE asserts that "[t]he statutory requirements for appeal

bonds have always been construed as mandatory [] and the exercise

of appellate jurisdiction confined to the provisions of the

written law."   Covington Virginian, Inc. v. Woods, 182 Va. 538,

543, 29 S.E.2d 406, 408 (1944).    DCSE also contends that Scheer

v. Isaacs, 10 Va. App. 338, 392 S.E.2d 201 (1990), 1 and McCall v.

Commonwealth ex rel. Ware, 20 Va. App. 348, 457 S.E.2d 389

(1995), 2 stand for the principle that a party's failure to post
     1
        In Scheer, the mother obtained a child support arrearage
judgment against the father in the J&DR court. The J&DR court
set an appeal bond. The father filed his appeal with the circuit
court but failed to post an appeal bond. "The circuit court
dismissed the appeal, finding that it had no jurisdiction as the
appeal bond had not been timely filed." Id. at 339, 392 S.E.2d
at 202. The Court of Appeals affirmed the circuit court's
dismissal of the appeal, stating that Code § 16.1-107 expressly
requires the posting of an appeal bond, and "[w]hen the bond is
not given, the appellate court has no jurisdiction." Id. at 340,
392 S.E.2d at 202.
     2
        In McCall, the mother obtained an arrearage judgment
against the father in the J&DR court. The J&DR court set an
appeal bond. The father filed his appeal with the circuit court,



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an appeal bond deprives a circuit court of its jurisdiction to

hear the appeal.

     We disagree with DCSE's reasoning.      A close reading of

Scheer and McCall reveals that in both cases the J&DR court set

an appeal bond which the party never posted.       Because in this

case neither the J&DR court nor the circuit court set an appeal

bond, Scheer and McCall are inapposite.       We hold that where a

J&DR court fails to require an appeal bond as required by

statute, the circuit court is not deprived of its jurisdiction.
Jenkins v. Bertram, 163 Va. 672, 177 S.E. 204 (1934)(holding that

a magistrate's failure to require an appeal bond does not oust

the circuit court of its jurisdiction over the appeal).       The

proper course for the circuit court to follow before it hears an

appeal from the J&DR court under these circumstances is to

"correct the omission of the magistrate and require the execution

of an appeal bond pursuant to the statute allowing appeals, and

upon due execution thereof to proceed with the trial of the case

'according to the principles of law and equity.'"        Id. at 675,

177 S.E. at 205 (citing predecessor to current Code

§ 16.1-114.1 3 ).

but he failed to post the appeal bond, which had been increased
by the circuit court. Id. at 390, 457 S.E.2d at 390. The
circuit court dismissed the father's appeal. This Court held, as
it did in Scheer, that the circuit court did not err in
dismissing the appeal because the father failed to post the
required appeal bond.
     3
         Code § 16.1-114.1 states:

                    Actions or proceedings appealed or



                                    -4-
     Just as "a deficient appeal bond does not [r]equire

dismissal of [an] appeal," Burks v. Three Hills Corp., 214 Va.

322, 323, 200 S.E.2d 521, 522 (1973)(holding that a circuit court

may correct a deficient appeal bond and retain jurisdiction over

the appeal), equitable considerations dictate that under the

facts of this case, the circuit court obtained jurisdiction to

hear father's appeal.   See Hurst v. Ballard, 230 Va. 365, 368,

337 S.E.2d 284, 285 (1985)(recognizing that Code § 16.1-114.1

contains curative provisions that can be used to correct "a mere

defect, irregularity, or omission in the proceedings").
     DCSE concedes that the circuit court's decision on the

merits is sound.   Father prevailed on appeal and did not need to

satisfy the judgment in mother's favor.   Therefore, the circuit

court's procedural error in failing to require an appeal bond was

          removed from district courts shall be tried
          according to the principles of law and
          equity, and when the same conflict the
          principles of equity shall prevail. No
          warrant, motion or other pleading shall be
          dismissed by reason of a mere defect,
          irregularity or omission in the proceedings
          in district court . . . when the same may be
          corrected by proper order of the court of
          record. In any such case the court of record
          shall retain the same, with full power to
          direct all necessary amendments, to enter
          orders and direct proceedings to correct such
          defects, irregularities and omissions, to
          promote substantial justice to all parties,
          and to bring about a trial of the merits of
          the controversy. This section shall be
          liberally construed, to the end that justice
          is not delayed or denied by reason of errors
          in the pleadings or in the form of the
          proceedings.



                                -5-
harmless.   Furthermore, DCSE never asked either the J&DR court or

the circuit court to set an appeal bond.   Rather, DCSE made a

jurisdictional argument before the circuit court, arguing that

the circuit court could not hear the case because father posted

no appeal bond.   Under these facts, examined in conjunction with

"equitable considerations," we hold that the trial court had

jurisdiction over this case, even after it failed to correct the

J&DR court's failure to set an appeal bond.     See Burks, 214 Va.

at 323, 200 S.E.2d at 522; Code § 16.1-114.1.
     Accordingly, we affirm the circuit court's order.

                                                           Affirmed.




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