                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia


JOSEPH MICHAEL RUSSELL
                                                                 MEMORANDUM OPINION * BY
v.     Record No. 2559-11-1                                     JUDGE ROBERT J. HUMPHREYS
                                                                       JULY 17, 2012
NANCY LYNNE RUSSELL


            FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND
                             COUNTY OF JAMES CITY
                            Walter J. Ford, Judge Designate

                 Joseph M. Russell, pro se.

                 No brief or argument for appellee.


       Joseph Michael Russell (“father”) appeals the November 15, 2011 order of the Circuit

Court for the City of Williamsburg and County of James City dismissing his motion to show

cause and motion to vacate orders relating to his divorce proceedings with Nancy Russell

(“mother”). On appeal, father contends that the circuit court erred in (1) “[h]olding that the 29

July 2005 and 9 December 2005 Orders and the subsequent orders based upon those defective

judgments were valid,” and (2) “[h]olding that the [circuit] court had jurisdiction to permit the

custodial parent’s relocation that would modify the child visitation arrangements during the

pendency of an appealed custody and visitation order.” For the reasons that follow, we affirm.

                                              I. Background

       Because this is an unpublished opinion that carries no precedential value, we recite only

those facts relevant to our ultimate disposition of the case.


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Father and mother were married and had one son before they divorced. As part of the

divorce proceedings, the Circuit Court of Fairfax County entered a custody order (“Custody

Order”) on May 20, 2005, which granted mother sole legal and physical custody. Father noted

his appeal to the May 20, 2005 order. 1 This Court entered a per curium opinion on that appeal

on October 3, 2006.

       Meanwhile, on July 29, 2005, the circuit court entered a consent order (the “July 29

order”) upon a “Motion for Enforcement of Visitation under the Custody Order” by mother.

Subsequently, the father violated the July 29 order, and the court held him in contempt on

November 29, 2005.

       Mother then indicated that she would be moving with the son to Williamsburg to be near

her family. Father filed a motion for an injunction to prevent the move. On November 28, 2005,

the circuit court entered an order denying father’s motion for an injunction. Mother

subsequently moved with the son to Williamsburg.

       On December 9, 2005, the circuit court entered an order (the “December 9 order”) on a

new motion for modification and rule to show cause from mother. Father was held in contempt

for violating the December 9 order on January 23, 2006 and sentenced to jail until he submitted a

written plan which detailed how he would comply with the court orders and obtain assistance by

a mental health professional. A March 21, 2006 order released father from jail and ordered that

he have no contact with his son. On March 31, 2006, the circuit court entered an order

continuing the no-contact provision of the previous order.




       1
         Father claims that he filed the notice of appeal on June 10, 2005. However, the notice
of appeal is not contained in the joint appendix.

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       Father then moved for a change of custody. On December 15, 2007, the circuit court

entered an order ruling on the motion, which, among other things, denied father’s motion for a

change of custody and set forth the continuing conditions of father’s visitation rights.

       On November 1, 2011, father filed a motion in the circuit court to vacate the July 29 and

December 9 orders and all subsequent orders based upon them. The circuit court held a hearing

and ultimately denied the motion in a November 15, 2011 order. Father filed a motion to

reconsider, which the circuit court also denied. Father then noted this appeal.

                                            II. Analysis

       In his first assignment of error, father challenges the circuit court’s “holding that the 29

July 2005 and 9 December 2005 Orders and the subsequent orders based upon those defective

judgments were valid.” Father’s argument is that these two orders were void ab initio, and thus,

he may challenge them at any time directly or collaterally. Therefore, he also challenges the

orders entered on November 29, 2005, January 23, 2006, March 21, 2006, March 31, 2006, and

December 15, 2007.

       Father’s characterization of these orders as void ab initio is incorrect. This Court and our

Supreme Court have noted several times previously the distinction between orders that are void

ab initio and those that are merely voidable. “A decree is void ab initio if it ‘has been procured

by extrinsic or collateral fraud, or entered by a court that did not have jurisdiction over the

subject matter of the parties.’ A void judgment may be attacked collaterally or directly in any

court at any time.” Rogers v. Damron, 23 Va. App. 708, 711, 479 S.E.2d 540, 541 (1997)

(emphasis added) (quoting Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987)). “In

contrast, an order is merely voidable if it contains reversible error made by the trial court.”

Singh v. Mooney, 261 Va. 48, 52, 541 S.E.2d 549, 551 (2001). “The distinction between an

action of the court that is void ab initio rather than merely voidable is that the former involves


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the underlying authority of a court to act on a matter whereas the latter involves actions taken by

a court which are in error.” Id. at 51, 541 S.E.2d at 551. Because the circuit court in this case

had subject matter jurisdiction over the issue of child custody, the July 29 and December 9

orders were not void ab initio.

       Father contends that the orders are void ab initio because the circuit court lacked

jurisdiction over the case when he noted his appeal on June 10, 2005. It is true that the circuit

court may have lacked the authority to enter the July 29, 2005 consent order, as jurisdiction at

that point had passed to this Court:

               “The orderly administration of justice demands that when an
               appellate court acquires jurisdiction over the parties involved in
               litigation and the subject matter of their controversy, the
               jurisdiction of the trial court from which the appeal was taken must
               cease.” This Court acquires jurisdiction over a case when the
               appeal is filed and docketed in the clerk’s office of the Court.
               “Thus, while the trial court may enforce a support and custody
               order, it may not modify such order without leave of court.”

Frazer v. Frazer, 23 Va. App. 358, 379-80, 477 S.E.2d 290, 300 (1996) (quoting Decker v.

Decker, 17 Va. App. 562, 564, 440 S.E.2d 411, 412 (1994) (internal citations omitted)).

However, this lack of “jurisdiction” did not deprive the circuit court of its subject matter

jurisdiction. It is well established that “[s]ubject matter jurisdiction is the authority vested in a

court by constitution or statute to adjudicate certain categories of disputes.” Smith v.

Commonwealth, 281 Va. 464, 467, 706 S.E.2d 889, 891 (2011).

               Significantly, however, the Supreme Court has “‘emphasiz[ed] the
               necessary distinction to be drawn . . . between the power of a court
               to adjudicate a specified class of cases, commonly known as
               “subject matter jurisdiction,” and the authority of a court to
               exercise that power in a particular case.’” As the Supreme Court
               has explained, “subject matter jurisdiction, perhaps best
               understood as the ‘potential’ jurisdiction of a court, is the authority
               granted to it by constitution or statute over a specified class of
               cases or controversies, and becomes ‘active’ jurisdiction, the
               power to adjudicate a particular case upon the merits, only when
               various elements are present.”
                                                 -4-
Prizzia v. Prizzia, 58 Va. App. 137, 160, 707 S.E.2d 461, 472 (2011) (quoting Nelson v. Warden,

262 Va. 276, 281, 552 S.E.2d 73, 75 (2001); Ghameshlouy v. Commonwealth, 279 Va. 379,

388-89, 689 S.E.2d 698, 702-03 (2010)).

                  While “the lack of subject matter jurisdiction can be raised at any
                  time in the proceedings, even for the first time on appeal by the
                  court sua sponte,” “defects in the other jurisdictional elements
                  generally will be considered waived unless raised in the pleadings
                  filed with the trial court and properly preserved on appeal.”

Id. at 161, 707 S.E.2d at 472 (quoting Porter v. Commonwealth, 276 Va. 203, 228, 229, 661

S.E.2d 415, 427, 427 (2008)).

           In this case, child custody was an issue in the cause of action and in the relief sought as

part of father’s and mother’s divorce proceedings. Thus, the circuit court had subject matter

jurisdiction over the matter. See Rogers, 23 Va. App. at 711-12, 479 S.E.2d at 541 (“In Virginia,

jurisdiction over divorce matters is statutorily-based. A court has jurisdiction over the subject

matter if it has jurisdiction over the cause of action and of the relief sought.”). When father

noted his appeal, the circuit court lost its active jurisdiction, but his actions did not deprive the

circuit court of its subject matter jurisdiction. Therefore, any orders entered in the circuit court

during the pendency of the appeal would not be void ab initio, but rather, they would be voidable

at best.

           Even if we assume, without deciding, that these orders were voidable, father did not

properly challenge them in the circuit court, and thus, he has waived any defects in them.

                  A court has jurisdiction to err, as well as to correctly decide the
                  issues presented in a case, and the remedy to correct an error by a
                  trial court is to appeal the court’s decision upon entry of a final
                  order, not to collaterally attack the erroneous decision in a separate
                  action.

Hicks v. Mellis, 275 Va. 213, 219, 657 S.E.2d 142, 145 (2008); Singh, 261 Va. at 52, 541 S.E.2d

at 551 (noting that voidable “orders may be set aside by motion filed in compliance with Rule


                                                   -5-
1:1 or provisions relating to the review of final orders”). Here, father failed to timely challenge

the July 29 and December 9, 2005 orders and all subsequent orders directly, and instead now

contests them through his November 1, 2011 motion to vacate. Therefore, by not raising these

issues in a timely manner in the circuit court, he failed to properly preserve his jurisdictional

challenge and he has waived any jurisdictional defects that may exist in those orders. As such,

the circuit court did not err in its holding, and we must affirm.

        Father next challenges the circuit court’s “[h]olding that the [circuit court] had

jurisdiction to permit the custodial parent’s relocation that would modify the child visitation

arrangements during the pendency of an appealed custody and visitation order.” Father’s

argument again relies on his assertion that the circuit court lacked jurisdiction to enter any orders

during the pendency of an appeal to this Court. For the same reasons stated above, this argument

fails as well.

                                          III. Conclusion

        For the reasons enumerated above, the judgment of the circuit court is affirmed.

                                                                                             Affirmed.




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