Linda M. Comer v Robert B. Comer, Jr.

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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