COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, 

 Bray, Annunziata, Bumgardner, Frank, Humphreys and 

 Clements 

Argued at Richmond, Virginia 

MICHAEL A. MAHONEY, SR. 

 OPINION BY 

v. Record No. 2949-98-4 JUDGE ROSEMARIE ANNUNZIATA 

 DECEMBER 5, 2000 

JEANNE M. MAHONEY 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N. A. Kendrick, Judge 

John M. DiJoseph (Kavrukov & DiJoseph, on 

brief), for appellant. 

John R. Angus (Weiner, Weiner & Weiner, 

P.C., on briefs), for appellee. 

Amicus Curiae: Commonwealth of Virginia, 

Department of Social Services, Division of 

Child Support Enforcement (Mark L. Earley, 

Attorney General; Ashley L. Taylor, Deputy 

Attorney General; Robert B. Cousins, Jr., 

Senior Assistant Attorney General; Craig M. 

Burshem, Regional Special Counsel; Jason P. 

Cooley, Special Counsel; Jack A. Maxwell, 

Special Counsel; Gary Webb, Special Counsel; 

William K. Wetzonis, Special Counsel, on 

brief), for appellee. 

On April 4, 2000, a divided panel of this Court reversed 

and remanded the trial court's dismissal of Michael A. Mahoney's 

appeal from a judgment of the juvenile and domestic relations 

district court. We granted appellee's petition for a rehearing 

en banc and stayed the mandate of that decision. Upon rehearing 
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en banc, we hold the trial court did not err in its ruling that 

upon failure to post an appeal bond fixed under Code 

§ 16.1-296(H), appellant's appeal must be dismissed. Therefore, 

we affirm the decision of the trial court. 

ANALYSIS

Guided by well-settled principles, we review the evidence 

on appeal in the light most favorable to the party prevailing 

below. On August 28, 1998, the Arlington Juvenile and Domestic 

Relations District Court (J&DR) found appellant, Michael Mahoney 

(father), in civil contempt of court on Jeanne Mahoney's Rule to 

Show Cause which was issued against the father for failing to 

comply with court-ordered support, both child and spousal, as 

well as medical bills and attorney's fees. The court entered 

judgment against father in the amount of $151,902.52, the amount 

in arrears due to mother. On appeal to the circuit court, 

father characterized the appeal as one challenging the 

"jurisdiction of the Court [to] enter any orders and the 

validity of all orders entered in this case based on fraud." He 

specifically noted his intention not to appeal the amounts of 

support found due and owing. Bond was fixed at $165,888.62 by 

the juvenile court. When no bond was posted, the circuit court 

dismissed father's appeal upon mother's motion. The court's 

order of dismissal was appealed to this Court. We affirm the 

circuit court's decision on the grounds that follow. 
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Code § 16.1-296(H) provides, in pertinent part: 

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 until the party 

applying for the same or someone for him 

gives bond, in an 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. Upon appeal from a conviction 

for failure to support or from a finding of 

civil or criminal contempt involving a 

failure to support, the juvenile and domestic 

relations district court may require the 

party applying for the appeal or someone for 

him to give bond . . . . An appeal will not 

be perfected unless such appeal bond as may 

be required is filed within thirty days from 

the entry of the final judgment or order. 

(Emphasis added). Mahoney contends the circuit court erroneously 

dismissed his appeal de novo because he limited his appeal to a 

challenge of the court's jurisdiction. He reasons that, having 

specifically excluded from his notice of appeal the juvenile 

court's establishment of a support arrearage and its finding of 

contempt, he was not required to post an appeal bond under Code 

§ 16.1-296(H). We disagree. 

Mahoney's challenge to the validity of "all orders entered" 

by the juvenile court, and to the authority of the court to enter 

any such orders, necessarily and logically implicates a challenge 
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to the subject of the orders entered by the juvenile court. In 

this case, the order Mahoney appealed from the juvenile court to 

the circuit court established a support arrearage he owed to his 

former wife. Thus, Mahoney's appeal from the juvenile court's 

order was necessarily subject to the jurisdictional requirement of 

Code § 16.1-296(H), which requires an appeal bond "for that 

portion of any order establishing a support arrearage." 

In addition, not only is the substantive issue of support 

arrearages logically related to, and inherent in, Mahoney's 

challenge to the jurisdiction of the court and the claimed 

invalidity of "all orders entered," but the law governing 

appeals from courts not of record also provides a well 

established legal foundation for the imposition of bond. An 

appeal from a court not of record is tried de novo. See Code 

§§ 16.1-106, 16.1-113; Copperthite Pie Corp. v. Whitehurst, 157 

Va. 480, 488, 162 S.E. 189, 191 (1932) (citing Southern Ry. Co. 

v. Hill, 106 Va. 501, 505, 56 S.E. 278, 280 (1907)); see also

Hailey v. Dorsey, 580 F.2d 112, 114 (4th Cir. 1978), cert.

denied, 440 U.S. 937 (1979). Such an appeal transfers the 

entire record to the circuit court for retrial as though the 

case had been originally brought there. See Addison v. Salyer, 

185 Va. 644, 650, 40 S.E.2d 260, 263 (1946). Upon transfer, the 

order and judgment of the lower court are annulled. See Ragan 

v. Woodcroft Village Apts., 255 Va. 322, 327, 497 S.E.2d 740, 
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742 (1998) (citing Nationwide Mut. Ins. Co. v. Tuttle, 208 Va. 

28, 32, 155 S.E.2d 358, 361 (1967)). 

It follows that because no case or judgment exists in the 

lower court, and because the circuit court upon appeal acts as the 

tribunal of original jurisdiction, it must address and dispose of 

all issues raised by the petitioner in the lower court. See

Addison, 185 Va. at 649, 40 S.E.2d at 263 ("'A court which hears a 

case de novo . . . acts not as a court of appeals but as one 

exercising original jurisdiction.'" (quoting Gemmell, Inc. v. Svea 

Fire Ins. Co., 166 Va. 95, 98, 184 S.E. 457, 458 (1936))). 

Specifically, the circuit court must decide both the issue of 

jurisdiction and the issue of arrearages, because no judgment on 

arrearages exists once the matter is appealed from the lower 

tribunal.1 

 1

 For example, if jurisdiction is found to exist on appeal, 

the circuit court must determine arrearages. It is reversible 

error to permit the judgment of the lower court to be introduced 

as evidence in the case and no other judgment on the issues is 

extant, because that of the lower court is annulled. See

Gravely v. Deeds, 185 Va. 662, 664, 40 S.E.2d 175, 176 (1946); 

see also Nationwide, 208 Va. at 33, 155 S.E.2d at 361-62. 

Conversely, if the circuit court finds no jurisdiction exists, 

the case must be dismissed and no arrearages established. 

Moreover, that the party bringing the appeal prevails in the 

trial de novo is insufficient to avoid the dictate of Code 

§ 16.1-296(H) that "no appeal shall be allowed unless and until 

a bond is given by the party applying for the appeal." 

Commonwealth ex rel. May v. Walker, 253 Va. 319, 322, 485 S.E.2d 

134, 136 (1997). In fact, the circuit court does not even have 

jurisdiction to hear the case unless the appeal bond is posted. 

See id. at 323, 485 S.E.2d at 136 ("[T]he failure to post an 

appeal bond . . . is a fatal jurisdictional defect . . . .").
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The policy underlying the requirement of appeal bonds is 

clear. An appeal bond provides assurances that any judgment that 

may be rendered on appeal, if perfected, will be satisfied. See 

Code § 16.1-107; Hutchins v. Carillo, 27 Va. App. 595, 606, 500 

S.E.2d 277, 282 (1998) (noting that "the essential function of an 

appeal bond [is] 'to protect the [appellee] against any loss or 

damage he may sustain by reason of the suspension of his right to 

proceed with the collection of his judgment against the 

[appellant]'" (quoting Jacob v. Commonwealth ex rel. Myers, 148 

Va. 236, 242, 138 S.E. 574, 576 (1927))). Such bonds also provide 

assurances in cases in which an appeal is not perfected that the 

judgment of the court in which it was rendered will be satisfied. 

See id. Indeed, the policy considerations underlying the need for 

bond upon appeal from the lower court are so material to the 

statutory scheme reflected in Code § 16.1-296(H) that the failure 

to post the required bond will constitute reversible error even 

when the appellant prevails in the trial de novo. See

Commonwealth ex rel. May v. Walker, 253 Va. 319, 323, 485 S.E.2d 

134, 136-37 (1997). 

 In summary, we hold that the JD&R order from which appellant 

appealed addressed only one subject, viz., that of support 

arrearages.2

 As such, Mahoney's failure to post bond under Code 

 2

 We do not address in this opinion the applicability of 

Code § 16.1-296(H) to an order which addresses multiple, 

independent issues unrelated to the issue of support. 
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§ 16.1-296(H) was fatal to his appeal. We accordingly affirm the 

decision of the trial court to dismiss his appeal. 

 Affirmed.
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Benton, J., dissenting. 

 In pertinent part, Code § 16.1-296(H) provides as follows: 

 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 until 

the party applying for the same or someone 

for him gives bond, in an 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. Upon 

appeal from a conviction for failure to 

support or from a finding of civil or 

criminal contempt involving a failure to 

support, the juvenile and domestic relations 

district court may require the party 

applying for the appeal or someone for him 

to give bond, with or without surety, to 

insure his appearance and may also require 

bond in an amount and with sufficient surety 

to secure the payment of prospective support 

accruing during the pendency of the appeal. 

An appeal will not be perfected unless such 

appeal bond as may be required is filed 

within thirty days from the entry of the 

final judgment or order. 

Although the statute clearly states that "[i]n cases involving 

support, no appeal shall be allowed until the party applying for 

the same or someone for him gives bond," in equally clear 

language the statute begins by stating that "[n]o appeal bond 

shall be required . . . except for that portion of any order or 
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judgment . . . establishing a support arrearage." Id. (emphasis 

added). 

By its explicit terms, the statute removes 

the requirement for posting a bond except as 

provided in the statute. The provision 

specifying that a bond shall be required for 

an appeal of a judgment establishing support 

arrearages implicitly recognizes that an 

order that sets arrearages may have a 

component that does not establish a support 

arrearage. In such a case, an appeal bond 

is required only for "that portion of any 

order . . . establishing a support 

arrearage." 

Avery v. Commonwealth, 22 Va. App. 698, 700, 472 S.E.2d 675, 676 

(1996) (citation omitted). I would hold that Michael A. 

Mahoney's appeal of the "jurisdiction of the Court [to] enter 

any order" is not an appeal of a "portion of any order or 

judgment establishing a support arrearage." 

 When Mahoney appealed the judgment to the circuit court, he 

wrote on the notice of appeal that he "appeals jurisdiction of 

the Court [to] enter any orders and the validity of all orders 

entered in this case based on fraud" and that "[h]e is not 

appealing amounts of support." (Additional emphasis added). 

Consistent with his notation on the notice of appeal, Mahoney 

informed the trial judge during the hearing that he was "not 

appeal[ing] the amount of support" but was "appeal[ing] . . . 

the lack of subject matter jurisdiction by the [juvenile and 

domestic relations district] court." Specifically, Mahoney 

alleged that the juvenile court never acquired jurisdiction 
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under the Uniform Child Custody Jurisdiction Act or the Uniform 

Interstate Family Support Act. Ruling that a party "can't 

piecemeal the appeal," the trial judge apparently recognized 

that Mahoney's challenge was not to any portion of the judgment 

but to the power of the court to render any judgment. 

Nevertheless, the trial judge granted the motion to dismiss. 

 In my opinion, Mahoney's appeal is not subject to the 

appeal bond requirement because it is not an appeal from "that 

portion of any order or judgment establishing a support 

arrearage." Code § 16.1-296(H). A judgment entered by a court 

when it lacks subject matter jurisdiction is void, and that 

judgment is subject to a challenge at any time. Morrison v. 

Bestler, 239 Va. 166, 170, 387 S.E.2d 753, 755-56 (1990). In 

addition, a party may challenge a judgment on the basis of a 

court's failure to abide by mandatory statutory requirements. 

In this regard, the Supreme Court has held that "[a] court's 

authority to exercise its subject matter jurisdiction over a 

case may be restricted by a failure to comply with statutory 

requirements that are mandatory in nature and, thus, are 

prerequisite to a court's lawful exercise of that jurisdiction." 

Dennis Moore v. Commonwealth, 259 Va. 405, 409, 527 S.E.2d 415, 

417 (2000). Such a failure renders the court without 

jurisdiction to act and renders the judgment void. See David 

Moore v. Commonwealth, 259 Va. 431, 439, 527 S.E.2d 406, 410 
- 11 - 

(2000). Mahoney's appeal directly challenges the juvenile 

court's power to render its judgment. 

 The Supreme Court has ruled as follows: 

"[T]he record is never conclusive as to the 

recital of a jurisdictional fact, and the 

defendant is always at liberty to show a 

want of jurisdiction, although the record 

avers the contrary. If the court had no 

jurisdiction, it had no power to make a 

record, and the supposed record is not in 

truth a record." 

Slaughter v. Commonwealth, 222 Va. 787, 793, 284 S.E.2d 824, 827 

(1981) (citation omitted). "[A]ny subsequent proceeding based 

on . . . a [jurisdictionally] defective judgment is void or a 

nullity." Morrison, 239 Va. at 170, 387 S.E.2d at 756. 

 We have addressed situations in which parties in support 

disputes sought to challenge contempt rulings against them and 

did not want to post the bond required by statute. In McCall v. 

Commonwealth, 20 Va. App. 348, 457 S.E.2d 389 (1995), we held 

that, under the pre-1992 version of Code § 16.1-107, a court has 

no duty to bifurcate support arrearage judgments from other 

issues to determine whether a party must post a bond. Id. at 

349, 457 S.E.2d at 390. We noted that when McCall appealed from 

a juvenile court judgment, he "did not specify or indicate in 

any way that he was appealing only the civil contempt citation 

and not the determination as to the amount of his support 

arrearage." Id. at 350, 457 S.E.2d at 391. We also noted that 

McCall initially asserted the limited nature of his appeal only 
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in this Court. See id. at 350, 457 S.E.2d at 390. Thus, we 

affirmed the ruling dismissing McCall's appeal because he did 

not bifurcate the issues. In Avery, however, we reversed an 

order dismissing an appeal on similar grounds because the party 

showed clearly that he "sought only to appeal the contempt 

finding." 22 Va. App. at 702, 472 S.E.2d at 677. 

 I believe we should treat challenges to jurisdiction in the 

same way we treat appeals from contempt orders. In this case, 

as in Avery, the appellant, Mahoney, has "sufficiently 

'inform[ed] the court that he was pursuing an appeal of the 

[court's jurisdiction] and not appealing the determination of 

the support arrearage.'" Id. (quoting McCall, 20 Va. App. at 

352-53, 457 S.E.2d at 392). Mahoney separately listed in his 

notice of appeal to the circuit court the matters he wished to 

appeal and he orally stated at the circuit court hearing the 

limited nature of his appeal. He did not challenge the support 

arrearage judgment. 

 For these reasons, I would reverse and remand this matter 

to the circuit court for consideration solely on the issue 

whether the juvenile court acquired jurisdiction to adjudicate 

the matter.