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Hi folks,
I've been subjected to several orders of Virginia Juvenile and Domestic
Relations Courts and Circuit Courts which are void on their own and/or
because they flow from orders which are void. These orders relate to
child support.
First void order was the retroactive modification to a 10-year old
support order and well as a modification to a current support order ---
all done without notice to me during a contempt hearing.
Second void order was on an appeal of a criminal contempt conviction to
Circuit Court where court failed to give me a de novo hearing (as
Virginia law requires) and then decided just have a sentencing hearing
for civil contempt (which I was not charged with or convicted of).
Judge refused to transfer case from the criminal side of court to
equity side of court, refused to remove the Commonwealth of Virginia as
complainant; Commonwealth Attorney's Office refused to intervene and
prosecute me as they are required to do on all criminal appeals from
Juvenile Court to the Circuit Court.
I have been unsuccessful at even having a court hear the damn motion,
whether it be filed as an independent action (8.01-428 of the Code of
Virginia) whether we're in Juvenile or Circuit Court and the current
juvenile court judge keeps saying "the order's too old" which is
bull#@($, according to every piece of caselaw of void orders that
exists within Lexis and Westlaw.
Although I only owe arrearages now (daughter is 18+), I was charged
with contempt and the same judge actually found me in contempt for
having paid more toward arrearages than the court required me to pay
under the order. He sentenced me to four months in jail, suspended
them, but imposed no purge clause...how do you purge yourself of
contempt when you've paid more than the court required sooner than the
court required it?
FWIW, the Special Counsel for the Manassas District Office filed a
false and misleading petition which got me charged...she stated I paid
no payments during the period in question...her filing differed from
the false affidavit filed with her motion...in fact, I had made about
17 payments during the period in question...the Judge didn't do a damn
thing to her for having filed a false motion and affidavit.
Although I proved the Clerk's Office failed to follow Virginia law in
how they processed incoming motions for rules to show cause, judge
refused to dismiss the contempt charge against me.
I tried attacking the resulting liens filed in my local court (my
support matters are in another Virginia court) and the judge said he
wasn't going to let me attack the orders in his court.
I'm trying to attack my license suspension on grounds that DCSE failed
to serve me with a NOTICE OF INTENT (required under 46.2-320), but
that's 4-6 weeks off.
I tried removing everything to federal court, and I got an arrest
warrant issued against me by the Juvenile Court judge -- even though I
complied with the federal removal statutes. It was served on me on my
way out of court challenging DCSE's liens. Then on the date of the
hearing over the warrant, the judge also decided he was going to hear
DCSE's motion to impose the previously-suspended four month sentence
--- again, no notice served on me that such hearing was going to occur.
I'm left with reopening my 1999 bankruptcy and filing an adversarial
proceeding against DCSE, attacking both the prior void orders as well
as interest that I believe that illegally attacked on PART of the
support I owe.
Any suggestions? I know the law, it's just that this particular judge
just thinks the Special Counsel for DCSE is cuter than I am...she sure
as hell doesn't know Virginia law.
PLEASE HELP!!!
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What is a "void order?" Do you mean that these orders were vacated by
the court, or that YOU think they were improper but you failed to
appeal them in a timely manner? Unless vacated or successfully
appealed, they are not "void" and still enforceable. Need more info to
provide you with any meaningful response.
-Dave
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"Dave" <dland@mytrashmail.com> wrote
What is a "void order?"
Notice and opportunity are necessary for jurisdiction- jurisdiction is
necessary for a valid order. Ex parte orders, or hearings wherein the true
purpose of the hearing is unknown to one of the parties, fail in due process
requirements.
Usually, such orders are spoken of as 'void and voidable' in order to
encompass both orders that have been appealed, and those that would be
appealable.
Be warned that it really pisses them off to be reminded of that.
Chas
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Chas wrote:
"Dave" <dland@mytrashmail.com> wrote
Notice and opportunity are necessary for jurisdiction- jurisdiction
is
necessary for a valid order. Ex parte orders, or hearings wherein the
true
purpose of the hearing is unknown to one of the parties, fail in due
process
requirements.
Usually, such orders are spoken of as 'void and voidable' in order to
encompass both orders that have been appealed, and those that would
be
appealable.
Be warned that it really pisses them off to be reminded of that.
Chas
Void and voidable are two different concepts.
A void order is one in which the order, by its nature, is automatically
void. An order entered without proper jurisdiction to begin with is
void and can be challenged at any time.
Virginia is a tough state to challenge orders after the fact. Most
judges inherently believe they cannot monkey with an order more than 21
days after entry except for very limited grounds (such as fraud on the
court). There is case law, however, which expressly states that an
order which was void for want of jurisdiction may be challenged at any
time.
I seriously question the original posters contention that the order is
"void". The poster discusses being personally served, contempt
proceedings, et cetera. This demonstrates there was service and brings
the "void" language into doubt to say the least.
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"Gichin" <timrhughes@aol.com> wrote
Void and voidable are two different concepts.
Yeah- I guess that's why they put them together in the boilerplate; to cover
all bases.
I seriously question the original posters contention that the order is
"void". The poster discusses being personally served, contempt
proceedings, et cetera. This demonstrates there was service and brings
the "void" language into doubt to say the least.
Yeah- in my own situation, I have both 'void' and 'voidable' orders- ex
parte communications, hearing(s) and orders. Additionally, failure to notice
of the true nature of a hearing, and trial orders made by one magistrate to
be modified by another without notice to me.
We're slowly wending our way through Federal Court-
Chas
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My knowledge of the law indicates that Orders may be void before
they're vacated by a court.
For example, in Virginia, under our child support guidelines, the Court
is required to find the "presumptive" amount of support due, from which
the Court is then free to deviate and provide written justification for
doing so. Using well-settled Virginia caselaw, failing to follow
mandatory, statutory procedures causes the court to lose subject matter
jurisdiction, making the resulting order VOID. Lack of notice of the
intent of the court to modify the order also makes the resulting order
VOID.
In my case, because the modification was done in the course of a
contempt proceeding without notice to me, the Court failed to even
inquire as to the income of my ex-wife when they modification to my
current order was done and the Court awarded my ex-wife $6168 for back
"medical insurance" payments without so much as one piece of
documentary evidence as to proof that she had insurance, while I had
documentary evidence that my ex-wife paid cash for emergency room
treatment for my daughter less than ONE BLOCK where her supposed HMO
was located.
Also in my case, after the court found me in CRIMINAL contempt of
court, I filed an appeal to Circuit Court, which under 16.1-136 of the
Code of Virginia, is required to hear the appeal de novo. For several
pre-trial hearings, the Court repeatedly stated in it's Orders that I
stood before the Court on appeal of the misdemeanor charge of criminal
contempt, however, the Court denied me court-appointed counsel, the
Commonwealth Attorney's Office declined to intervene (as required under
Section 16.1-232 of the Code of Virginia, the Court refused to restyle
the case from "Commonwealth of Virginia v. Briggman" and refused to
transfer the case to the equity side of the Court and out of the
criminal division.
On the day of the trial, the Judge decided he wasn't giving me a de
novo hearing, only a re-hearing of the sentence and that the judge was
hearing the matter as "civil contempt" -- even though all charging and
disposition documents, including a letter from the Clerk of the Court
which reinterated that the JDR Court Judge intended to convict me of
criminal contempt.
To date, all of the efforts to have a hearing on the issue of the
validity of the two court actions above have been rebuffed by the
Court, the most recent reason being because the Orders are "too old" to
challenge. Virginia allows the challenging of orders which are void in
"any court, at any time".
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Yes Gichin,
I was personally served -- with a contempt citation for failing to obey
an order -- not with a motion to modify a child support order.
Additionally, when a court modifies a support order, it must use the
Virginia Guidelines to derive the presumptive amount from which it they
may deviate. The Court failed to use the Guidelines by failing to even
inquire as to the income of my ex-wife. This failure of a mandatory,
statutory procedures causes the court to lose subject matter
jurisdiction -- even if I had been served with notice and would also
render the resulting order VOID, not voidable.
I'm a former police officer and I write briefs on child support and
contempt for local attorneys occasionally, I know the difference
between void and voidable.
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briggman@gmail.com wrote:
Yes Gichin,
I was personally served -- with a contempt citation for failing to
obey
an order -- not with a motion to modify a child support order.
Additionally, when a court modifies a support order, it must use the
Virginia Guidelines to derive the presumptive amount from which it
they
may deviate. The Court failed to use the Guidelines by failing to
even
inquire as to the income of my ex-wife. This failure of a mandatory,
statutory procedures causes the court to lose subject matter
jurisdiction -- even if I had been served with notice and would also
render the resulting order VOID, not voidable.
I'm a former police officer and I write briefs on child support and
contempt for local attorneys occasionally, I know the difference
between void and voidable.
This is not my main area of practice.
I think if a judge takes the wrong elements into account, that is not a
void order. It gives rise to a right of appeal to circuit court, but I
do not believe the order is void. I think once the court acquires
jurisdiction, it keeps jurisdiction.
Again, I may be wrong. My J & DR practice is limited to GAL cases, not
support related matters.
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