Jason Bird v. Gabriela Bird ( 2021 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Russell and Senior Judge Haley
UNPUBLISHED
Argued by videoconference
JASON BIRD
MEMORANDUM OPINION* BY
v. Record No. 0382-21-4 JUDGE RANDOLPH A. BEALES
NOVEMBER 9, 2021
GABRIELA BIRD
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Richard E. Gardiner, Judge
Rachel E. Rubinstein (Laurie Forbes Neff; The Geller Law Group,
PLLC, on briefs), for appellant.
Michelle Arian Wahab (Fierro & Kori, PLLC, on briefs), for
appellee.
During divorce proceedings between Jason Bird (“husband”) and Gabriela Bird (“wife”),
wife filed a motion asking the Circuit Court of Fairfax County to clarify one paragraph of the
parties’ Voluntary Property Settlement Agreement (“PSA”). The trial court entered an order
reforming that one paragraph of the PSA. Husband appealed the trial court’s decision to this
Court. On September 22, 2021, this Court heard oral argument in this case. This Court directed
the parties to file supplemental briefs addressing whether this Court actually has subject matter
jurisdiction to hear the present appeal, which the parties filed with this Court on October 6 and 7,
2021.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
Husband and wife married on October 8, 2016. They have one son together. The couple
separated on January 13, 2020. On June 22, 2020, husband and wife signed the PSA, which
included provisions that dealt with spousal support, child support, and child custody.
On December 11, 2020, wife filed a complaint for divorce against husband. In her
complaint for divorce, wife goes into great detail as to why she deserves to be granted a divorce
based “on the grounds of desertion and cruelty” (although she also states that she could receive a
divorce based on living separate and apart for over a year after constructive desertion). In
addition, wife requested that the PSA “be affirmed, ratified, and incorporated, but not merged,
into a Final Decree of Divorce, with the exception of paragraphs 28-30 regarding child support.”
Wife, asserting that “there have been multiple material changes of circumstances” since the
execution of the PSA, asked the trial court to award her “child support both pendente lite and
permanently for the support and maintenance of the minor child.” Furthermore, wife sought that
husband “be ordered to pay the costs of this suit,” including attorney’s fees, and “[t]hat this
Court award such other and further relief as this Court, in Equity, deems reasonable and proper.”
On January 21, 2021, husband filed a counter-complaint for divorce based “on the
grounds of having lived separate and apart” for more than one year. Husband also asserted that
there were “material changes in circumstances occurring since the execution” of the PSA that
required the trial court to modify the existing custody and visitation arrangement. Therefore,
husband requested that the trial court award him “legal and physical custody of the parties’
minor child as dictated by the child’s best interests” and that wife be awarded visitation – the
opposite of what currently is the case as the PSA directs.
During the divorce proceedings, wife filed a motion for the trial court to clarify paragraph
18 of the PSA, which addresses the issue of the spousal support that husband had agreed to pay
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wife. Husband disputed wife’s interpretation of that paragraph with respect to the frequency of
the payment obligation, and the trial court held a hearing to resolve this issue. The trial court
then ordered that “Paragraph 18 of the parties’ Voluntary Property Settlement Agreement be
reformed to reflect a monthly spousal support obligation of $1,700 per month.” In addition, the
trial court concluded, “In all other respects, Paragraph 18 of the parties’ Voluntary Property
Settlement Agreement shall remain in full force and effect.” Husband then appealed this order
from the trial court to this Court.
II. ANALYSIS REGARDING JURISDICTION
Neither party questioned this Court’s subject matter jurisdiction in the briefs that the
parties filed with this Court in preparation for oral argument of this case. However, at oral
argument before this Court, wife’s counsel mentioned that the trial court proceedings were still
ongoing. On September 27, 2021, this Court directed:
Given that, during oral argument before this Court, counsel
represented that the divorce is still being contested in the trial
court, the parties are directed to file supplemental briefs addressing
whether this Court has subject matter jurisdiction to hear the
present appeal, see, e.g., Code § 17.1-405, or whether this matter
arises as an impermissible appeal of an interlocutory order.
Husband and wife subsequently filed supplemental briefs addressing this question and now
disagreeing over whether this Court currently has subject matter jurisdiction over the appeal now
before us.
In Lewis v. Lewis, 271 Va. 520, 524 (2006) (quoting Canova Elec. Contracting, Inc. v.
LMI Ins. Co., 22 Va. App. 595, 599 (1996)), the Supreme Court of Virginia stated, “The Court
of Appeals of Virginia is a court of limited jurisdiction.” Without a statute conferring
jurisdiction on this Court, we lack “authority to review an appeal.” Id. at 524-25; see Tesla, Inc.
v. Virginia Auto. Dealers Ass’n, 68 Va. App. 509, 512 (2018) (dismissing appeal for lack of
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jurisdiction). The Supreme Court has also been clear that “the lack of subject matter jurisdiction
can be raised at any time in the proceedings, even for the first time on appeal by the court sua
sponte.’” Watson v. Commonwealth, 297 Va. 347, 352 (2019) (quoting Morrison v. Bestler, 239
Va. 166, 169-70 (1990)).
Code § 17.1-405(3)(b)-(d) gives this Court subject matter jurisdiction over appeals from
“[a]ny final judgment, order, or decree of a circuit court involving . . . Divorce; Custody; Spousal
or child support.” In this case, appellant does not even argue that the trial court’s order now
before us is a final judgment, order, or decree. Instead, husband contends that it is an
interlocutory order that “constitutes a final adjudication of the rights of the parties with respect to
spousal support in a manner that will necessarily impact the final order of their case.” As a
result, husband contends that “[t]he Court of Appeals accordingly has subject matter jurisdiction
to hear this appeal pursuant to Virginia Code § 17.1-405(4).”
Code § 17.1-405(4)(ii) confers jurisdiction on this Court over appeals from “[a]ny
interlocutory decree or order entered in any of the cases listed in this section . . . adjudicating the
principles of a cause.” Following Supreme Court precedent, this Court has ruled, “To adjudicate
the principles of a cause, the decree must determine the rules by which the court will determine
the rights of the parties.” Pinkard v. Pinkard, 12 Va. App. 848, 851 (1991) (citing Lee v. Lee,
142 Va. 244, 252 (1925)). “The decree must determine that ‘the rules or methods by which the
rights of the parties are to be finally worked out have been so far determined that it is only
necessary to apply those rules or methods to the facts of the case in order to ascertain the relative
rights of the parties, with regard to the subject matter of the suit.’” Id. (quoting Lee, 142 Va. at
252-53). This Court has explained that “[t]he order must be one that ‘adjudicates the underlying
cause’” of the case. de Haan v. de Haan, 54 Va. App. 428, 439 (2009) (citing City of Richmond-
Fire & Emergency v. Brandon, 32 Va. App. 787, 789 (2000)). In addition, “[t]he order must
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address ‘the chief object[s] of the suit.’” Id. (citing Erikson v. Erikson, 19 Va. App. 389, 391
(1994)).
Here, husband appealed an order of the trial court that reforms one paragraph relating to
spousal support in a forty-two-paragraph PSA that also covers issues such as child support and
child custody. Even assuming that this order constitutes a final adjudication of spousal support,
it does not adjudicate the “principles of a cause.” See Code § 17.1-405(4)(ii). Spousal support is
only one of several issues in dispute here that the parties submitted to the jurisdiction of the trial
court in this suit for divorce, and it is the only one of those disputed issues that the circuit court
has resolved in the order on appeal to this Court. Husband asked for a no-fault divorce, based on
living separate and apart for more than a year, while wife based her complaint for a fault-based
divorce on the grounds of cruelty and desertion. Wife has asked the trial court not to incorporate
paragraphs 28-30 of the PSA and to modify those paragraphs to increase husband’s child support
obligations. At the same time, husband has asked the trial court to award him legal and physical
custody of their son – the opposite of what the PSA establishes. It appears from the record
before us in this appeal that the trial court has yet to render a decision on any of these matters –
all of which remain in dispute. In short, all of these matters remain in the breast of the trial court
still awaiting decision.
Husband contends that “[a] determination of spousal support is one that goes to the chief
principles of a suit in a divorce case that may be resolved with finality through an interlocutory
order.” However, “where a trial court in a divorce suit enters an order resolving only some of the
main objects of the suit, such an order normally does not adjudicate ‘the principles of a cause.’”
de Haan, 54 Va. App. at 443. As this Court explained in de Haan, “To hold otherwise would
permit divorce litigants to appeal each order of the trial court adjudicating the divorce, custody,
equitable distribution, child support, or spousal support.” Id. While this Court can hear an
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appeal of an interlocutory order awarding spousal support when that order does adjudicate the
principles of a cause, the interlocutory order appealed in this case fails to address many of the
questions raised in the complaint for divorce. Cf. Crowder v. Crowder, 125 Va. 80, 83 (1919)
(deciding that an interlocutory order was appealable because it was “an adjudication of all the
questions raised by the complainant’s bill”).
Furthermore, this case now before us is highly distinguishable from the situation that was
before us in Chaplain v. Chaplain, 54 Va. App. 762, 770 (2009). In Chaplain, this Court
determined that an interlocutory order was appealable “where the evidence of the divorce is
uncontested, and the only issue before the trial court was whether the parties’ property rights
upon divorce were governed by their premarital agreement.” Id. In this case, the circuit court
order now before us addresses nothing beyond the reformation of one paragraph of the PSA
relating to spousal support. Because there are a number of contested issues left before the trial
court for it to resolve in this divorce case, the trial court’s order does not adjudicate the principles
of a cause in this case. Therefore, this Court must dismiss husband’s appeal for lack of subject
matter jurisdiction.
III. CONCLUSION
In short, this Court does not have subject matter jurisdiction to hear husband’s appeal of
an interlocutory order reforming one paragraph of a property settlement agreement but dealing
with only one of a number of contested issues in an ongoing divorce case. The trial court entered
an order reforming paragraph 18 of the PSA relating to spousal support. Husband appealed that
order to this Court. While that order does resolve a dispute between husband and wife regarding
spousal support, there are simply a number of other outstanding issues remaining in dispute in
this divorce case that the trial court has not yet resolved. For example, wife’s request for an
increased award of child support for their son has yet to be resolved. Likewise, her request for
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the trial court not to incorporate into a final decree paragraphs 28-30 of the PSA relating to child
support also remains unresolved. Wife’s request for a fault-based divorce on the grounds of
desertion and cruelty (versus husband’s request for a no-fault divorce on the grounds of living
separate and apart for more than one year) remains pending before the trial court. In addition,
husband’s request for legal and physical custody of their son is also not addressed in the circuit
court order now before this Court.
Because there is still much to be further decided in this matter in the circuit court, this
Court cannot say that the circuit court order now before us is actually an interlocutory decree or
order “adjudicating the principles of a cause” under Code § 17.1-405(4)(ii). Therefore, for all of
these reasons, this Court does not have subject matter jurisdiction to hear this appeal, and
husband’s appeal, consequently, must be dismissed.
Dismissed.
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