COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Annunziata 

Argued at Richmond, Virginia 

LINDA M. COMER 

 MEMORANDUM OPINION* BY 

v. Record No. 0157-00-2 JUDGE LARRY G. ELDER 

 DECEMBER 19, 2000 

ROBERT B. COMER, JR. 

FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY 

James F. D'Alton, Jr., Judge 

 Beverly M. Murray (The Law Offices of Beverly 

McLean Murray, on brief), for appellant. 

 No brief or argument for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 This matter arises out of the 1997 request of Linda Comer 

(mother) for custody of the minor child (child) born of her 

marriage to Robert B. Comer, Jr. (father). Both mother and 

father were proceeding pro se at that time. The circuit court 

denied mother's request for custody but said it would consider 

awarding visitation. As permitted by Code § 16.1-266(D), the 

court appointed Michele L. Ferris as guardian ad litem for the 

child. Following a hearing on the visitation issue, which 

included an in camera interview with the child, the court 

entered an order granting the request of the guardian ad litem

that "there shall be no visitation between [mother and child] 
until such time as the child initiates any visitation with the 

mother." 

 Mother then obtained counsel, and following the denial of a 

motion to reconsider, mother filed a notice of appeal and 

indicated that she mailed a copy of the notice to both the 

guardian and the appellee father. The Court of Appeals, 

following receipt of mother's notice of appeal and the record of 

the proceedings in the trial court, notified mother, mother's 

counsel, father, and the child's guardian ad litem of said 

receipt. In bold print in that same notice, the Court advised 

mother and her counsel to "consult Part 5A of the Rules [of the 

Supreme Court of Virginia] for information on filing times and 

other requirements" and indicated that "[f]ailure to comply with 

the rules may result in various sanctions, including dismissal 

of the appeal." 

 When counsel for mother filed mother's opening brief with 

this Court, she included a certificate indicating that she 

served appellee father with copies of the brief, but the 

certificate did not mention the guardian ad litem. At that 

time, the guardian ad litem remained a counsel of record in the 

case and was classified as an "opposing counsel" for purposes of 

the Rules. See Rules 1:5, 5A:1. Pursuant to Rule 5A:20(h), 

mother was required to certify that she mailed or delivered the 

requisite number of copies of her opening brief to "opposing 

counsel on or before the date of filing." See also Rule 

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5A:19(e). Because mother failed to comply with the requirements 

of the Rules, the guardian ad litem did not receive notice of 

the filing or a copy of mother's brief and had an inadequate 

opportunity to respond in order to protect the interests of the 

child. Mother, therefore, failed to bring a necessary party 

before the Court. See Asch v. Friends of the Community of the 

Mount Vernon Yacht Club, 251 Va. 89, 90-91, 465 S.E.2d 817, 818 

(1996) (holding that necessary party is one who has an interest 

"which is likely either to be defeated or diminished by the 

plaintiff's claim" and that "court lacks the power to proceed 

with a suit unless all necessary parties are properly before the 

court," even where party received notice of appeal). 

 Because mother failed to serve a copy of her opening brief 

on the guardian ad litem for the minor child, a necessary party 

to this appeal, the appeal is dismissed. 

 Dismissed. 

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