Dana Chenault v. Edward E. Mangus ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
DANA CHENAULT
MEMORANDUM OPINION *
v. Record No. 0992-96-3 PER CURIAM
SEPTEMBER 2, 1997
EDWARD E. MANGUS
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Jr., Judge
(B. Leigh Drewry, Jr., on brief), for
appellant.
No brief for appellee.
Dana Chenault (mother) appeals the decision of the circuit
court finding no arrearage in child support payments from Edward
Mangus (father). The trial court ruled that the Virginia circuit
court which ordered father to pay child support in 1988 did not
have in personam jurisdiction. On appeal, mother contends that
(1) oral agreements settling issues of property and support are
enforceable in final decrees; and (2) an out-of-state defendant
may accept service of process and confer in personam jurisdiction
on a Virginia court. Upon reviewing the record and opening
brief, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
Rule 5A:27.
The parties were married in Virginia in 1973, and two of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
their three children were born in Virginia. In 1983, the family
moved to South Carolina, where they lived at the time of the
parties' separation in 1986. Mother subsequently moved to
Virginia with the children. Father agreed to pay $75 per week in
child support. In 1987, mother filed a bill of complaint,
seeking a divorce and child support in the amount of $75 per
week. Father was served in South Carolina by a subpoena in
chancery, and endorsed the return of service. The divorce decree
was entered January 12, 1988, and included a provision requiring
father to pay $75 weekly in child support.
Mother subsequently sought to recover over $25,000 in child
support arrearages. The trial court found that there was no
enforceable arrearage because the circuit court in 1988 lacked in
personam jurisdiction over father and, therefore, was without
authority to order father to pay support.
While mother raises two issues, the question whether the
parties' oral agreement was enforceable is moot if the trial
court properly determined that the original court exceeded its
jurisdiction when it ordered father to pay support. While a
court with in rem jurisdiction may enter a divorce decree,
"[p]ersonal rights, which include property and support rights in
divorce cases, may not be adjudicated by a court lacking in
personam jurisdiction." Gibson v. Gibson, 5 Va. App. 426, 429,
364 S.E.2d 518, 519 (1988). See Toomey v. Toomey, 19 Va. App.
756, 758-59, 454 S.E.2d 735, 736-37 (1995). Cf. Commonwealth ex
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rel. Kenitzer v. Richter, 23 Va. App. 186, 192-93, 475 S.E.2d
817, 820 (1996).
Husband had notice of the Virginia action and was served
with process. Neither factor, however, gave the Virginia court
in personam jurisdiction over father. See Toomey, 19 Va. App. at
759, 454 S.E.2d at 736-37. Similarly, father was not subject to
in personam jurisdiction in Virginia under any of the provisions
of Virginia's "long arm statute" as it existed at the time mother
commenced this action. 1 No agreement had been executed in
1
Code § 8.01-328.1, as amended in 1987, read in pertinent
part as follows:
A court may exercise personal jurisdiction
over a person, who acts directly or by an
agent, as to a cause of action arising from
the person's:
* * * * * * *
8. Having (i) executed an agreement in this
Commonwealth which obligates the person to
pay spousal support or child support to a
domiciliary of this Commonwealth, or to a
person who has satisfied the residency
requirements in suits for annulments or
divorce for members of the armed forces
pursuant to § 20-97 provided proof of service
of process on a nonresident party is made by
a law-enforcement officer or other person
authorized to serve process in the
jurisdiction where the nonresident party is
located, or (ii) been ordered to pay spousal
support or child support pursuant to an order
entered by any court of competent
jurisdiction in this Commonwealth having in
personam jurisdiction over such person; or
9. Having maintained within this
Commonwealth a matrimonial domicile at the
time of separation of the parties upon which
grounds for divorce or separate maintenance
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Virginia, no support had been ordered, and Virginia was not the
matrimonial domicile at the time of separation. Therefore,
father was not subject to Virginia's in personam jurisdiction,
and the trial court in 1988 could not order him to pay child
support.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
is based, or at the time a cause of action
arose for divorce or separate maintenance or
at the time of commencement of such suit, if
the other party to the matrimonial
relationship reside herein.
Jurisdiction in subsection 8 and
subsection 9 of this section is valid only
upon proof of service of process pursuant to
§ 8.01-296 on the nonresident party by a
person authorized under the provisions of
§ 8.01-320.
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