In re N. J. S.

This matter is before the Court on the petition of L. J. S. for the appointment of a committee pursuant to Virginia Code § 53.1-221 for defendant N. J. S. Petitioner, the former wife of defendant, plans to file a civil action against him for sexual assaults committed against their daughter. Defendant is currently serving a jail sentence because of these acts.

Petitioner, argues that Virginia Code § 53.1-223 prohibits her from filing a civil suit until a committee is appointed. Defendant objects to the appointment of a committee because he has already obtained an attorney to represent him in any civil matter arising from this case.

Although the Supreme Court had held in Dunn v. Terry, 216 Va. 234 (1975), that a defendant may waive the appointment of a committee, that case is factually different from the case at issue here. In Terry, the court noted that the civil suit had begun and the defendant had been served before he was convicted. In the present case, the defendant was not within the civil jurisdiction of the Court prior to his conviction. Therefore, the defendant may not waive appointment of a committee.

The petition for appointment of a committee is granted.