Toomey v. Toomey , 251 Va. 168 ( 1996 )

Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Whiting, Senior Justice
THOMAS NELSON TOOMEY
OPINION BY
v. Record No. 950578 SENIOR JUSTICE HENRY H. WHITING
January 12, 1996
VICTORIA L. TOOMEY
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal concerns a circuit court's jurisdiction to
consider a nonresident party's motion for equitable distribution
that was filed more than 21 days after a final decree had been
entered in a divorce suit.
Thomas Nelson Toomey, a resident of Virginia, filed a bill
of complaint in the Circuit Court of the City of Newport News
against Victoria L. Toomey, a resident of Oregon, seeking a
divorce on the ground that the parties had lived separate and
apart without cohabitation and without any interruption for a
period of more than one year. Although a subpoena in chancery,
with a copy of Mr. Toomey's bill of complaint attached thereto,
was personally served on Mrs. Toomey in Oregon, she failed to
file responsive pleadings within the required time. Without
further notice to Mrs. Toomey, depositions were taken, and, in
April 1992, a final decree was entered in which Mr. Toomey was
granted a divorce from the bond of matrimony.
More than seven months later, Mrs. Toomey moved the circuit
court for equitable distribution of the marital estate. Over Mr.
Toomey's objection, the circuit court permitted Mrs. Toomey to
file a cross-bill for equitable distribution, and the Court of
Appeals affirmed that ruling upon Mr. Toomey's appeal. Toomey v.
Toomey, 19 Va. App. 756, 454 S.E.2d 735 (1995). Agreeing with
Mr. Toomey's contention that the Court of Appeals' decision has
significant precedential value, Code § 17-116.07(B), we awarded
this appeal.
The litigants agree that the circuit court could not have
adjudicated issues of equitable distribution prior to Mrs.
Toomey's intervention in the suit because it lacked personal
jurisdiction over her. They disagree whether the circuit court
could do so later under the facts of this case.
Mr. Toomey claims that because the circuit court lost its
jurisdiction to adjudicate that claim upon entry of the final
decree, Mrs. Toomey lost her rights to equitable distribution in
a Virginia court by failing to claim those rights prior to entry
of the final decree. Mrs. Toomey responds that she could not
have lost her equitable distribution rights at that time since
the circuit court lacked personal jurisdiction over her when the
decree was entered. We agree with Mr. Toomey.
We consider Mrs. Toomey's contention by examining the origin
of a spouse's right to equitable distribution. At common law,
divorce courts had no jurisdiction to make awards of equitable
distribution. See Guy v. Guy, 210 Va. 536, 541, 172 S.E.2d 735,
738 (1970); Barnes v. American Fertilizer Co., 144 Va. 692, 709,
130 S.E. 902, 907 (1925). That authority was vested in divorce
courts by Code § 20-107.3. Parra v. Parra, 1 Va. App. 118, 124,
336 S.E.2d 157, 160 (1985). And when jurisdiction is vested in a
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court by statute, that jurisdiction is limited by the terms of
the statute. See Cauthorn v. Cauthorn, 196 Va. 614, 619, 85
S.E.2d 256, 259 (1955).
The circuit court's limited jurisdiction in this case is
described in the following pertinent language in Code § 20-107.3:
A. Upon . . . decreeing a divorce from the bond
of matrimony, or upon the filing with the court as
provided in subsection J of a certified copy of a final
divorce decree obtained without the Commonwealth, the
court, upon request of either party, shall determine
the legal title as between the parties, and the
ownership and value of all property, real or personal,
tangible or intangible, of the parties and shall
consider which of such property is separate property,
which is marital property, and which is part separate
and part marital property in accordance with
subdivision A 3. . . . The court, on the motion of
either party, may retain jurisdiction in the final
decree of divorce to adjudicate the remedy provided by
this section when the court determines that such action
is clearly necessary, and all decrees heretofore
entered retaining such jurisdiction are validated.
. . . .
J. [The] court . . . may [order equitable
distribution] after a court of a foreign jurisdiction
has decreed a dissolution of a marriage or a divorce
from the bond of matrimony, if (i) one of the parties
was domiciled in this Commonwealth when the foreign
proceedings were commenced, (ii) the foreign court did
not have personal jurisdiction over the party domiciled
in the Commonwealth, (iii) the proceeding is initiated
within two years of receipt of notice of the foreign
decree by the party domiciled in the Commonwealth, and
(iv) the court obtains personal jurisdiction over the
parties pursuant to subdivision A 9 of [Code] § 8.01-
328.1 [maintenance of matrimonial domicile in Virginia
at specified times if other party resides in Virginia],
or in any other manner permitted by law.
(Emphasis added.)
Although Mrs. Toomey invokes Code § 20-107.3, we find
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nothing in that statute giving the circuit court jurisdiction to
adjudicate Mrs. Toomey's claim to equitable distribution. The
circuit court awarded the divorce and did not retain jurisdiction
in the divorce decree to adjudicate equitable distribution after
entry of that decree. 1 Hence, we conclude that the circuit court
had no jurisdiction to consider Mrs. Toomey's filing under the
provisions of Code § 20-107.3.
Nor does the two-year period provided in Code § 8.01-322
vest jurisdiction in the circuit court to consider Mrs. Toomey's
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application for equitable distribution, as she contends. We
rejected a similar contention when a nonresident wife, who had
been personally served in a foreign state, moved for a rehearing
and sought spousal support after a divorce decree had been
entered. Mitchell v. Mitchell, 227 Va. 31, 314 S.E.2d 45 (1984).
1
Although the court's jurisdiction to modify, vacate, or
suspend the final decree continued for 21 days after its entry,
Rule 1:1, Mrs. Toomey filed no pleadings within that period
invoking that jurisdiction.
2
Code § 8.01-322 provides in pertinent part:
If a party against whom service by publication is
had under this chapter did not appear before the date
of judgment against him, then such party . . . may
petition to have the case reheard . . . within the
following time and not after:
1. Within two years after the rendition of such
judgment, decree or order . . . .
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In Mitchell, we pointed out that "[i]f a [nonresident] defendant
has received personal service [in the foreign state] at the
commencement of the litigation . . . and fails to protect his
interests, he accepts the risk of an unfavorable result." Id. at
38, 314 S.E.2d at 49.
Similar to the nonresident defendant in Mitchell, Mrs.
Toomey failed to protect her interests in having the circuit
court adjudicate her equitable distribution rights. Under Code
§ 20-107.3, Mrs. Toomey could have requested the circuit court to
adjudicate her rights prior to entering the divorce decree; she
also could have moved the circuit court to retain its
jurisdiction and adjudicate those rights after entering the
divorce decree. She did neither. Mrs. Toomey's failure to
protect her interests does not substantively adjudicate her
equitable distribution rights, but does bar her from asserting
those rights in a Virginia court.
We recognize that, had Mrs. Toomey timely protected her
interests, she would have subjected herself to the circuit
court's personal jurisdiction. Nevertheless, this decision--
whether to remain outside the circuit court's personal
jurisdiction or to protect her interests in having that court
adjudicate equitable distribution rights--is one dictated by Code
§ 20-107.3. The consequence of Mrs. Toomey's decision is that
the circuit court was without jurisdiction to consider her motion
for equitable distribution.
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Accordingly, we will reverse the order of the Court of
Appeals that affirmed the circuit court's decree in Mrs. Toomey's
favor, and we will enter a final decree for Mr. Toomey in this
Court.
Reversed and final decree.
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