COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Fitzpatrick and Annunziata 

Argued at Alexandria, Virginia 

R. L. H. 

 MEMORANDUM OPINION* BY 

v. Record No. 0463-96-4 JUDGE JOHANNA L. FITZPATRICK 

 OCTOBER 22, 1996 

R. D. H. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jane M. Roush, Judge 

 JoAnne B. Butt for appellant. 

 Edwin C. Gillenwater for appellee. 

 The dispositive issue in this case is whether appellant 

timely noted her appeal from an adverse custody decision in the 

juvenile court. Finding no error, we affirm the decision of the 

trial court. 

 At the conclusion of an April 26, 1995 custody hearing in 

the Fairfax Juvenile and Domestic Relations District Court, the 

court awarded custody to the father (R. D. H.) (appellee). No 

final order was entered at that time. The mother (R. L. H.) 

(appellant) asserts that she filed a notice of appeal of this 

decision on May 3, 1995, prior to the entry of any court order. 

However, no appeal notice is reflected in the record. Appellant 

filed a motion to reconsider the custody decision that was denied 

on May 5, 1995. No order regarding the juvenile court's ruling 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

had been entered as of May 3, 1995, or at the time of the motion 

for reconsideration. 

 On June 16, 1995, appellant's counsel sent an original order 

reflecting the trial court's April 26, 1995 custody determination 

and the denial of appellant's May 5, 1995 motion to reconsider 

the custody award to appellee's counsel. On June 19, 1995, 

appellee's counsel mailed the order endorsed by both counsel to 

the juvenile court for entry, and notified appellant's counsel 

that the order had been transmitted to the court. On July 5, 

1995, both counsel received a copy of the final order incorrectly 

dated May 26, 1995. 

 On July 7, 1995, a deputy clerk in the juvenile court 

changed the custody order to reflect an entry date of June 26, 

1995, instead of the May 26, 1995 date inserted by the judge. 

The clerk then dated the notice of appeal submitted by appellant 

as being entered on June 29, 1995, rather than July 7, 1995, the 

actual date of submission. It is undisputed that appellant's 

notice of appeal was filed more than ten days after the entry of 

the final order. 

 On February 5, 1996, the trial court granted appellee's 

motion to quash and dismissed the appeal as untimely filed. The 

trial judge found that: (1) the final order from the juvenile 

court was entered on June 26, 1995; (2) the notice of appeal was 

filed on July 7, 1995; (3) the deputy clerk had no authority to 

backdate the appeal; and (4) the appeal was untimely. 
 3 

 Rule 8:20 governs the procedure for appealing from a 

judgment of the juvenile court, and provides as follows: "[A]ll 

appeals shall be noted in writing. An appeal is noted only upon 

timely receipt in the clerk's office of the writing. An appeal 

may be noted by a party or by the attorney for such party." 

 Code § 16.1-296(A) provides, in pertinent part: "From any 

final order or judgment of the juvenile court affecting the 

rights or interests of any person coming within its jurisdiction, 

an appeal may be taken within ten days from the entry of a final

judgment, order or conviction." (Emphasis added). 

 This record establishes that no final order was entered 

reflecting the custody determination by the juvenile court until 

June 26, 1995. No notice of appeal dated May 3, 1995 appears in 

the court file. Assuming without deciding that a potential 

appeal was noted on May 3, 1995, it was premature. There was no 

final order from which to appeal. Appellant failed to note an 

appeal until July 7, 1995, eleven days after the final order was 

entered.1

 

 Accordingly, we affirm the trial court. 

 Affirmed.

 

 1Appellant's argument that the trial court should not have 

heard appellee's motion to dismiss on the day of trial has no 

merit. While the motion had been denied by another judge prior 

to trial, it was specifically entered "without prejudice" so that 

it could be raised again at trial.