Geraldine I. Jones v. Frank E. Jones ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia
GERALDINE I. JONES
MEMORANDUM OPINION * BY
v. Record No. 2580-99-3 JUDGE SAM W. COLEMAN III
MAY 30, 2000
FRANK E. JONES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
G. David Nixon (Huffman & Nixon, P.C., on
briefs), for appellant.
Arthur P. Strickland (Arthur P. Strickland,
P.C., on brief), for appellee.
Geraldine I. Jones appeals the trial court's entry of a
final divorce decree on the grounds that the parties had lived
separate and apart for more than one year pursuant to Code
§ 20-91(A)(9)(a). She also appeals the court's equitable
distribution award. Geraldine Jones argues that the court erred
by entering the divorce decree because when the bill of complaint
was filed, the parties had not lived separate and apart for one
year, as required by the statute; therefore, the court lacked
jurisdiction over the case. We hold that the court erred by
entering the final divorce decree because the grounds for divorce
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
alleged in the bill of complaint did not exist when the bill was
filed and, thus, the court lacked jurisdiction to entertain the
suit at the time it was filed. Moreover, no amended bill was
filed. Accordingly, we vacate the divorce decree and dismiss the
bill of complaint. We necessarily do not reach the equitable
distribution issues.
BACKGROUND
The parties were married in June 1985. On July 28, 1997,
Frank Jones filed a bill of complaint for divorce, alleging that
he and Geraldine Jones separated on January 23, 1993 and had lived
separate and apart continuously and without cohabitation for more
than one year. At the June 1999 ore tenus hearing, Geraldine
Jones moved to dismiss the suit, asserting that when the suit was
filed in 1997, the couple had not lived separate and apart for the
statutory period. Geraldine Jones testified that after separating
on January 23, 1993, the parties resumed living together in August
1994 and lived together continuously until June 1997,
approximately one month before the suit for divorce was filed.
Thus, she contends when the bill of complaint was filed, the
parties had no ground under Code § 20-91(A)(9)(a) to seek or
obtain a divorce, which is a jurisdictional prerequisite for
filing suit. At the hearing, Frank Jones agreed that Geraldine
Jones' factual account of when they separated was correct. The
court ruled that although the grounds for divorce did not exist
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when the suit was filed, the parties had lived separate and apart
continuously for one year at the date of the hearing; thus,
grounds for divorce did exist at the time of the hearing.
Accordingly, the circuit court denied Geraldine Jones' motion to
dismiss and entered a divorce decree a vinculo matrimonii based on
the parties having lived separate and apart for more than one year
and without an amendment to the bill of complaint.
ANALYSIS
Code § 20-91(A)(9)(a) provides, in part, that "[a] divorce
from the bond of matrimony may be decreed . . . [o]n the
application of either party if and when the husband and wife
have lived separate and apart without any cohabitation and
without interruption for one year." "The act relied upon for
divorce must be alleged and proved to have occurred prior to the
bringing of the suit, not based upon some act or conduct alleged
to have taken place during its pendency." Beckner v. Beckner,
204 Va. 580, 583, 132 S.E.2d 715, 717-18 (1963); see also
Johnson v. Johnson, 213 Va. 204, 210, 191 S.E.2d 206, 210
(1972).
We have consistently held that jurisdiction
in a divorce suit is purely statutory.
Although the court may have jurisdiction
over both the subject matter and the
parties, the court may nevertheless exceed
its statutory authority if the character of
the judgment was not such as the court had
the power to render, or [if] the mode of
procedure employed by the court was such as
it might not lawfully adopt.
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Lowe v. Lowe, 233 Va. 431, 433, 357 S.E.2d 31, 33 (1987)
(internal quotations and citations omitted.
The undisputed proof is that Geraldine Jones and Frank Jones
had not lived separate and apart without cohabitation for the
requisite one-year period before the suit was filed in July 1997.
Here, no amended bill of complaint was filed. Code
§ 20-91(A)(9)(a) provides that a "no-fault" divorce may be granted
only after an application has been filed properly alleging that
the parties have lived separate and apart for the requisite time.
See Moore v. Moore, 218 Va. 790, 796, 240 S.E.2d 535, 538 (1978)
(finding that an application under Code § 20-91(A)(9)(a) refers to
a bill of complaint or a cross-bill). The ground for divorce
alleged is a statutory element and jurisdictional prerequisite
to filing the suit for divorce under Code § 20-91(A)(9)(a). The
grounds must be properly alleged and proven. Thus, the trial
court erred in entertaining the bill of complaint for divorce
and in entering the divorce decree therein for which the proof
showed, and the parties conceded therein, the grounds alleged
did not exist.
For the foregoing reasons, we reverse the trial court,
vacate the divorce decree, and grant the wife's motion to
dismiss the bill of complaint.
Reversed and dismissed.
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