fugitive disentitlement doctrine in Virginia

2024We review a lower court’s invocation of the fugitive disentitlement doctrine “under an abuse of discretion standard.” Sasson v. Shenhar, 276 Va. 611, 627 (2008).

2024We have specified a three-part test that governs the application of the fugitive disentitlement doctrine: “(1) the appellant must be a fugitive, (2) there must be a nexus between the current appeal and the appellant’s status as a fugitive, and (3) dismissal must be necessary to effectuate the policy concerns underlying the doctrine.” Sasson, 276 Va. at 623 .

2011Id. at 827 , 116 S.Ct. at 1782 (reversing a trial court’s application of the fugitive disentitlement doctrine to bar a criminal indictee from participating in a related civil suit, because “[t]he existence of ... alternative means of protecting the Government’s interests [in that ease] show[ed] the lack of necessity for the harsh sanction of absolute disentitlement”); Matsumoto v. Matsumoto, 171 N.J. 110 , 792 A.2d 1222, 1233 (2002) (observing that the fugitive disentitlement doctrine is to be applied only “so long as nothing less than dismissal will suffice”); see Sasson v. Shenhar, 276 Va. 6

2011Id. at 827 , 116 S.Ct. at 1782 (reversing a trial court’s application of the fugitive disentitlement doctrine to bar a criminal indictee from participating in a related civil suit, because “[t]he existence of ... alternative means of protecting the Government’s interests [in that ease] show[ed] the lack of necessity for the harsh sanction of absolute disentitlement”); Matsumoto v. Matsumoto, 171 N.J. 110 , 792 A.2d 1222, 1233 (2002) (observing that the fugitive disentitlement doctrine is to be applied only “so long as nothing less than dismissal will suffice”); see Sasson v. Shenhar, 276 Va. 6

2011See Degen v. United States, 517 U.S. 820, 826, 828 , 116 S.Ct. 1777, 1782-88 , 135 L.Ed.2d 102 (1996) (describing the fugitive disentitlement doctrine as “a rule forbidding all participation by the absent claimant” and “foreclosing consideration of claims on the merits”).

2011See Degen v. United States, 517 U.S. 820, 826, 828 , 116 S.Ct. 1777, 1782-88 , 135 L.Ed.2d 102 (1996) (describing the fugitive disentitlement doctrine as “a rule forbidding all participation by the absent claimant” and “foreclosing consideration of claims on the merits”).

2011“The fugitive disentitlement doctrine, although traditionally applied to criminal cases, extends to civil cases as well,” Moscona v. Shenhar, 50 Va.App. 238, 250 , 649 S.E.2d 191, 196 (2007), aff'd sub nom, Sasson v. Shenhar, 276 Va. 611 , 667 S.E.2d 555 (2008), since “it is the flight or refusal to return in the face of judicial action that is the critical predicate to fugitive disentitlement,” Matsumoto, 792 A.2d at 1233 .

2011“The fugitive disentitlement doctrine, although traditionally applied to criminal cases, extends to civil cases as well,” Moscona v. Shenhar, 50 Va.App. 238, 250 , 649 S.E.2d 191, 196 (2007), aff'd sub nom, Sasson v. Shenhar, 276 Va. 611 , 667 S.E.2d 555 (2008), since “it is the flight or refusal to return in the face of judicial action that is the critical predicate to fugitive disentitlement,” Matsumoto, 792 A.2d at 1233 .

2024The fugitive disentitlement doctrine is rooted in the judiciary’s “inherent power of self-defence and self-preservation.” Carter v. Commonwealth, 96 Va. 791, 816 (1899).

2007It is well established in Virginia, however, “[t]hat in the courts created by the Constitution, there is an inherent power of self-defence and self-preservation.” Carter v. Commonwealth, 96 Va. 791, 816 , 32 S.E. 780, 785 (1899).

2010Co., 294 F.3d 584, 596 (4th Cir. 2002)).

2007Co., 294 F.3d 584, 595 (4th Cir.2002). *253 As we have noted, no Virginia appellate court has previously considered whether to apply the fugitive disentitlement doctrine.

2024Additionally, “dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice.” Id. at 242 ; see also Sasson, 276 Va. at 627-28 (“Dismissing [the] appeals furthers the goals of the fugitive disentitlement doctrine by 2 Our sister courts have commonly dismissed appeals in this very circumstance.

2007Although Virginia’s appellate courts have not yet had the occasion to address the fugitive disentitlement doctrine, the United States Supreme Court has noted that “it has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” Ortega-Rodriguez v. United States, 507 U.S. 234, 239 , 113 S.Ct. 1199, 1203 , 122 L.Ed.2d 581 (1993).

2011In cases involving child custody “ ‘the best interests of the child are paramount and form the lodestar for the guidance of the court in determining the dispute.’ ” Bailes v. Sours, 231 Va. 96, 99 , 340 S.E.2d 824, 826 (1986) (quoting Walker v. Brooks, 203 Va. 417, 421 , 124 S.E.2d 195, 198 (1962)).

2011In cases involving child custody “ ‘the best interests of the child are paramount and form the lodestar for the guidance of the court in determining the dispute.’ ” Bailes v. Sours, 231 Va. 96, 99 , 340 S.E.2d 824, 826 (1986) (quoting Walker v. Brooks, 203 Va. 417, 421 , 124 S.E.2d 195, 198 (1962)).

2011In cases involving child custody “ ‘the best interests of the child are paramount and form the lodestar for the guidance of the court in determining the dispute.’ ” Bailes v. Sours, 231 Va. 96, 99 , 340 S.E.2d 824, 826 (1986) (quoting Walker v. Brooks, 203 Va. 417, 421 , 124 S.E.2d 195, 198 (1962)).

2011In cases involving child custody “ ‘the best interests of the child are paramount and form the lodestar for the guidance of the court in determining the dispute.’ ” Bailes v. Sours, 231 Va. 96, 99 , 340 S.E.2d 824, 826 (1986) (quoting Walker v. Brooks, 203 Va. 417, 421 , 124 S.E.2d 195, 198 (1962)).

2007Courts applying this doctrine uniformly have held that “a fugitive from justice need not be a fugitive in a criminal matter.” Finkelstein, 111 F.3d at 281 ; United States v. Barnette, 129 F.3d 1179, 1183 (11th Cir.1997).

2007Courts applying this doctrine uniformly have held that “a fugitive from justice need not be a fugitive in a criminal matter.” Finkelstein, 111 F.3d at 281 ; United States v. Barnette, 129 F.3d 1179, 1183 (11th Cir. 1997).

2007See, e.g., Pesin v. Rodriguez, 244 F.3d 1250 , 1253 (11th Cir.2001) (dismissing an ICARA appeal where the appellant had continuously refused to comply with court orders, had been found guilty of contempt, and had a warrant for her arrest); Prevot v. Prevot, 59 F.3d 556, 562-67 (6th Cir.1995) (dismissing the appellant’s Hague Convention appeal where he fled the country with his wife and child to avoid criminal charges and lived in France); Guerin v. Guerin, 116 Nev. 210 , 993 P.2d 1256, 1258 (2000) (dismissing the appeal under the doctrine “in light of [appellant’s fugitive status and continued

2007See, e.g., Pesin v. Rodriguez, 244 F.3d 1250 , 1253 (11th Cir. 2001) (dismissing an ICARA appeal where the appellant had continuously refused to comply with court orders, had been found guilty of contempt, and had a warrant for her arrest); Prevot v. Prevot, 59 F.3d 556, 562-67 (6th Cir. 1995) (dismissing the appellant’s Hague Convention appeal where he fled the country with his wife and child to avoid criminal charges and lived in France); Guerin v. Guerin, 993 P.2d 1256, 1258 (Nev. 2000) (dismissing the appeal under the doctrine “in light of [appellant]’s fugitive status and continued refusa

2007See, e.g., Pesin v. Rodriguez, 244 F.3d 1250 , 1253 (11th Cir.2001) (dismissing an ICARA appeal where the appellant had continuously refused to comply with court orders, had been found guilty of contempt, and had a warrant for her arrest); Prevot v. Prevot, 59 F.3d 556, 562-67 (6th Cir.1995) (dismissing the appellant’s Hague Convention appeal where he fled the country with his wife and child to avoid criminal charges and lived in France); Guerin v. Guerin, 116 Nev. 210 , 993 P.2d 1256, 1258 (2000) (dismissing the appeal under the doctrine “in light of [appellant’s fugitive status and continued

2007See, e.g., Pesin v. Rodriguez, 244 F.3d 1250 , 1253 (11th Cir. 2001) (dismissing an ICARA appeal where the appellant had continuously refused to comply with court orders, had been found guilty of contempt, and had a warrant for her arrest); Prevot v. Prevot, 59 F.3d 556, 562-67 (6th Cir. 1995) (dismissing the appellant’s Hague Convention appeal where he fled the country with his wife and child to avoid criminal charges and lived in France); Guerin v. Guerin, 993 P.2d 1256, 1258 (Nev. 2000) (dismissing the appeal under the doctrine “in light of [appellant]’s fugitive status and continued refusa

2007See, e.g., Pesin v. Rodriguez, 244 F.3d 1250 , 1253 (11th Cir.2001) (dismissing an ICARA appeal where the appellant had continuously refused to comply with court orders, had been found guilty of contempt, and had a warrant for her arrest); Prevot v. Prevot, 59 F.3d 556, 562-67 (6th Cir.1995) (dismissing the appellant’s Hague Convention appeal where he fled the country with his wife and child to avoid criminal charges and lived in France); Guerin v. Guerin, 116 Nev. 210 , 993 P.2d 1256, 1258 (2000) (dismissing the appeal under the doctrine “in light of [appellant’s fugitive status and continued

2007See, e.g., Pesin v. Rodriguez, 244 F.3d 1250 , 1253 (11th Cir. 2001) (dismissing an ICARA appeal where the appellant had continuously refused to comply with court orders, had been found guilty of contempt, and had a warrant for her arrest); Prevot v. Prevot, 59 F.3d 556, 562-67 (6th Cir. 1995) (dismissing the appellant’s Hague Convention appeal where he fled the country with his wife and child to avoid criminal charges and lived in France); Guerin v. Guerin, 993 P.2d 1256, 1258 (Nev. 2000) (dismissing the appeal under the doctrine “in light of [appellant]’s fugitive status and continued refusa

2007See, e.g., Degen v. United States, 517 U.S. 820 , 116 S.Ct. 1777 , 135 L.Ed.2d 102 (1996) (considering the doctrine in a civil forfeiture case); Empire Blue Cross & Blue Shield v. Finkelstein, 111 F.3d 278, 281 (2d Cir.1997) (applying the doctrine in a civil RICO Act appeal).

2007Courts applying this doctrine uniformly have held that “a fugitive from justice need not be a fugitive in a criminal matter.” Finkelstein, 111 F.3d at 281 ; United States v. Barnette, 129 F.3d 1179, 1183 (11th Cir.1997).

2007See, e.g., Pesin v. Rodriguez, 244 F.3d 1250 , 1253 (11th Cir.2001) (dismissing an ICARA appeal where the appellant had continuously refused to comply with court orders, had been found guilty of contempt, and had a warrant for her arrest); Prevot v. Prevot, 59 F.3d 556, 562-67 (6th Cir.1995) (dismissing the appellant’s Hague Convention appeal where he fled the country with his wife and child to avoid criminal charges and lived in France); Guerin v. Guerin, 116 Nev. 210 , 993 P.2d 1256, 1258 (2000) (dismissing the appeal under the doctrine “in light of [appellant’s fugitive status and continued

2007See, e.g., Pesin v. Rodriguez, 244 F.3d 1250 , 1253 (11th Cir.2001) (dismissing an ICARA appeal where the appellant had continuously refused to comply with court orders, had been found guilty of contempt, and had a warrant for her arrest); Prevot v. Prevot, 59 F.3d 556, 562-67 (6th Cir.1995) (dismissing the appellant’s Hague Convention appeal where he fled the country with his wife and child to avoid criminal charges and lived in France); Guerin v. Guerin, 116 Nev. 210 , 993 P.2d 1256, 1258 (2000) (dismissing the appeal under the doctrine “in light of [appellant’s fugitive status and continued

2011Walsh, 221 F.3d at 215 (emphasis added); see also Lazaridis v. Wehmer, 288 Fed.Appx. 800, 802-03 (3d Cir.2008) (holding “that the District Court [in Delaware] erred in relying on the fugitive disentitlement doctrine to dismiss [Lazaridis’s] complaint” in part because “although Lazaridis’s alleged fugitive status may be an affront to the dignity of the Michigan courts, it is not an affront to this Court or to the District Court”).

2011While “[a]n appreciation of the pragmatic concerns” governing the fugitive disentitlement analysis “requires a case-by-case analysis,” Walsh, 221 F.3d at 215 , cases involving custody are “in an entirely different category than other issues for fugitive disentitlement purposes,” Matsumoto, 792 A.2d at 1235 .

2007Application of the doctrine “does not strip the case of its character as an adjudicable case or controversy, ... [but] it disentitles the [appellant] to call upon the resources of the Court for determination of his claims.” Molinaro v. New Jersey, 396 U.S. 365, 366 , 90 S.Ct. 498, 499 , 24 L.Ed.2d 586 (1970); see also Ortega-Rodriguez, 507 U.S. at 234 , 113 S.Ct. at 1199 .

2007Application of the doctrine “does not strip the case of its character as an adjudicable case or controversy, ... [but] it disentitles the [appellant] to call upon the resources of the Court for determination of his claims.” Molinaro v. New Jersey, 396 U.S. 365, 366 , 90 S.Ct. 498, 499 , 24 L.Ed.2d 586 (1970); see also Ortega-Rodriguez, 507 U.S. at 234 , 113 S.Ct. at 1199 .

2024See, e.g., United States v. Hanzlicek, 187 F.3d 1219, 1221 (10th Cir. 1999); United States v. Lantigua-Bonilla, 83 F.3d 541, 542 (1st Cir. 1996); Williams v. Alameida, 511 F.3d 973, 974 (9th Cir. 2007); Commonwealth v. Simon, 461 N.E.2d 758 (Mass. 1984); People v. Dios, 38 N.Y.S.3d 417 (N.Y.

2024See, e.g., United States v. Hanzlicek, 187 F.3d 1219, 1221 (10th Cir. 1999); United States v. Lantigua-Bonilla, 83 F.3d 541, 542 (1st Cir. 1996); Williams v. Alameida, 511 F.3d 973, 974 (9th Cir. 2007); Commonwealth v. Simon, 461 N.E.2d 758 (Mass. 1984); People v. Dios, 38 N.Y.S.3d 417 (N.Y.

2024See, e.g., United States v. Hanzlicek, 187 F.3d 1219, 1221 (10th Cir. 1999); United States v. Lantigua-Bonilla, 83 F.3d 541, 542 (1st Cir. 1996); Williams v. Alameida, 511 F.3d 973, 974 (9th Cir. 2007); Commonwealth v. Simon, 461 N.E.2d 758 (Mass. 1984); People v. Dios, 38 N.Y.S.3d 417 (N.Y.

2012Husband objected to the trial 3 As a threshold matter, wife requests that we apply the fugitive disentitlement doctrine to dismiss this case. “‘In order to employ the doctrine,’ the record must show that ‘(1) the appellant [is] a fugitive, (2) there [is] a nexus between the current appeal and the appellant’s status as a fugitive, and (3) dismissal [is] necessary to effectuate the policy concerns underlying the doctrine.’” Morrison v. Morrison, 57 Va. App. 629, 637 , 704 S.E.2d 617, 620 (2011) (citing Sasson v. Shenhar, 276 Va. 611, 623 , 667 S.E.2d 555, 561 (2008)).

2012Husband objected to the trial 3 As a threshold matter, wife requests that we apply the fugitive disentitlement doctrine to dismiss this case. “‘In order to employ the doctrine,’ the record must show that ‘(1) the appellant [is] a fugitive, (2) there [is] a nexus between the current appeal and the appellant’s status as a fugitive, and (3) dismissal [is] necessary to effectuate the policy concerns underlying the doctrine.’” Morrison v. Morrison, 57 Va. App. 629, 637 , 704 S.E.2d 617, 620 (2011) (citing Sasson v. Shenhar, 276 Va. 611, 623 , 667 S.E.2d 555, 561 (2008)).

2011Walsh, 221 F.3d at 215 (emphasis added); see also Lazaridis v. Wehmer, 288 Fed.Appx. 800, 802-03 (3d Cir.2008) (holding “that the District Court [in Delaware] erred in relying on the fugitive disentitlement doctrine to dismiss [Lazaridis’s] complaint” in part because “although Lazaridis’s alleged fugitive status may be an affront to the dignity of the Michigan courts, it is not an affront to this Court or to the District Court”).

2011We, nevertheless, believe the underlying policy considerations pertaining to custody are relevant to the applicability of the fugitive disentitlement doctrine in this case. -9- Prejudice may also occur in cases in which the fugitive refuses to pay costs, or in cases in which the plaintiff’s fugitive status results in the mere harassment of his adversaries, or even in cases in which “the plaintiff’s fugitive status places him entirely beyond judicial control.” Sarlund v. Anderson, 205 F.3d 973, 975 (7th Cir. 2000).

2007See generally United States v. Oliveri, 190 F.Supp.2d 933 (S.D.Tex.2001) (applying the fugitive disentitlement doctrine to deny the defendant’s motion to *257 dismiss the criminal indictment where the defendant argued the indictment was based upon an invalid subpoena).