Kelly Elizabeth Klein v. George John Klein, Jr. ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia
KELLY ELIZABETH KLEIN
MEMORANDUM OPINION * BY
v. Record No. 2826-02-4 JUDGE RUDOLPH BUMGARDNER, III
JULY 8, 2003
GEORGE JOHN KLEIN, JR.
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge
T. James Binder for appellant.
Kathleen Latham Farrell (Farrell & Croft,
P.C., on brief), for appellee.
The trial court granted a divorce to Kelly Elizabeth Klein
and George John Klein, Jr. on the grounds of a one-year
separation. The wife appeals the denial of spousal support and
the failure to award her a portion of the husband's pension.
Concluding the trial court acted within the parameters of its
discretion, we affirm.
The parties married in 1985, had two children, and
separated January 8, 1999. The wife filed a bill of complaint
for divorce February 12, 1999. The bill of complaint did not
request spousal support. The cause came for final hearing in
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
September 2002 on the report of the commissioner in chancery and
to determine equitable distribution, custody, and support.
During her opening remarks, the wife asked for spousal support
in the amount she had received as pendente lite support. The
husband objected to an award of spousal support because the wife
had not pleaded the issue. The wife responded that support had
been awarded pendente lite and that she had made a general
prayer for such further relief as the court deemed appropriate.
The trial court ruled the issue was not properly pleaded.
After the lunch recess, the wife moved the court to
reconsider its decision. She referred to a motion filed
November 1, 1999 that requested pendente lite support and
concluded with a prayer for "spousal support pendente lite and
permanently . . . ." She argued the phrase "and permanently"
constituted a sufficient pleading of the issue. In the
alternative, she moved to amend orally her bill of complaint.
The trial court ruled that it could only award the relief
when the pleadings raised the issue and that the general prayer
for further relief did not, by itself, justify an award of
spousal support. The trial court relied on Boyd v. Boyd, 2
Va. App. 16, 340 S.E.2d 578 (1986). The trial court then denied
the request to amend the pleading. It distinguished the facts
from those in Pantazes v. Pantazes, No. 0129-00-4 (Va. Ct. App.
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December 5, 2000), upon which the wife relied. 1 In this case, no
transcript existed of the contested pendente lite hearing in
1999 that might have showed previous counsel acknowledged the
issue. The trial court also noted that the discovery conducted
would not have put the husband on notice of the claim for
spousal support.
In Boyd, the wife filed a cross-bill for divorce that
included a request for custody, child support, and maintenance.
Although the wife did not request spousal support, the trial
court awarded it. This Court held that a general prayer for
"further relief" did not justify an award of spousal support.
To hold otherwise "would constitute an unwarranted modification
of the nature of the cause of action, with potentially
far-reaching effects." 2 Va. App. at 20, 340 S.E.2d at 581.
"[N]o court can base its judgment or decree upon a right which
has not been pleaded and claimed." Id. at 18, 340 S.E.2d at
580. "'Pleadings are as essential as proof, the one being
unavailing without the other.'" Id. at 19, 340 S.E.2d at 580(quoting Potts v. Mathieson Alkali Works, 165 Va. 196, 207, 181
S.E. 521, 525 (1935)). Boyd controls this case.
1
In Pantazes, the wife requested spousal support pendente
lite, and the husband did not object. When the court granted
the wife's motion to amend, the husband suffered no surprise and
did not request a continuance. Under those facts, the trial
court did not abuse its discretion in granting the motion.
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The wife maintains Boyd did not preclude an amendment of
her bill of complaint and Rule 1:8 encourages liberal amendment
of the pleadings. However, neither Boyd nor Rule 1:8 requires
the trial court to grant the amendment. Permission to amend
pleadings rests within the sound discretion of the trial court.
Kole v. City of Chesapeake, 247 Va. 51, 57, 439 S.E.2d 405, 409
(1994). That decision will not be disturbed absent an abuse of
discretion. Alphin v. Alphin, 15 Va. App. 395, 400, 424 S.E.2d
572, 575 (1992).
In this case, the wife filed her initial pleading in
February 1999. At no point in the record, which involved
multiple attorneys and numerous pleadings, did she ever request
permanent spousal support. She never sought to amend her
complaint before the final two-day hearing commenced in
September 2002. Opposing counsel was surprised by the claim,
and the wife gave no reason or justification for her delay and
failure to plead. While the facts of this case may have
permitted an amendment, they did not mandate one. The decision
was an appropriate exercise of discretion.
The wife also maintains the trial court erred in failing to
award her any portion of the husband's pension. She argues the
ruling precluded her "from any significant return for her
contribution to the marital pension asset." The division of the
marital estate, including any pension, is a matter of the
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exercise of sound discretion by the trial court. Code
§ 20-107.3.
The couple did not have many assets to divide. The wife
earned $22,000, and the husband earned $56,000. After they
separated, the wife lived in the marital residence. It had a
market value of $279,000 but had liens of more than $250,000.
They included a mortgage arrearage of $65,425 that the wife
incurred while living there after the separation. During the
separation, the wife had received $24,000 in child and spousal
support while the husband had discharged $45,000 in other
marital debts. The trial court awarded the residence to the
wife and the $21,089 pension to the husband. It also ordered
him to pay $2,800 in marital income tax debt. The trial judge
took the statutory factors into consideration. We cannot say
the trial court abused its discretion when it allocated the two
assets among the parties rather than splitting their value
between them.
Finding the trial court did not abuse its discretion, we
affirm.
Affirmed.
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