Gregory Joseph Buka v. Judith Marie Smith, f/k/a ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
GREGORY JOSEPH BUKA
MEMORANDUM OPINION *
v. Record No. 2353-02-2 PER CURIAM
MARCH 11, 2003
JUDITH MARIE SMITH, F/K/A
JUDITH MARIE BUKA
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
(Stephen M. Farmer; Steven P. Woodside;
Stephen M. Farmer, P.C., on brief), for
appellant.
(Kenneth P. Mergenthal, on brief), for
appellee.
Gregory Buka (husband) contends the trial court failed to
obtain jurisdiction over the case and, as a result, its decree of
divorce is void. Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
BACKGROUND
On October 10, 2001, Judith Marie Buka (wife) filed a bill of
complaint in the trial court seeking a divorce. In paragraph 1,
wife indicated that she and husband were married in Prince William
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
County, Virginia on October 8, 1994. In paragraph 3, wife
declared she "is domiciled in and has been a bona fide resident of
the State of Virginia for more than six months next preceding the
commencement of this suit."
In a December 12, 2001 deposition, wife avowed she has been a
resident of Virginia for thirty-one years.
In answer to deposition questions, wife's mother, Judith
Marie Smith, stated that she has known wife for thirty-one years
and that wife has been a resident of Virginia for thirty-one
years.
In the December 19, 2001 final decree, the trial court
explained that it considered the evidence, including argument by
counsel and "the Depositions of the Plaintiff and of the
witness" which "were duly taken before a Notary Public," and
found that wife "is domiciled in and has been a bona fide
resident of the State of Virginia for more than six months next
preceding the commencement of this suit."
On June 11, 2002, husband filed a "Praecipe" asking the trial
court to reopen the case and "vacate the Final Decree of Divorce."
On that same date, husband filed an "Answer and Cross-Bill of
Complaint for Divorce" in which he "admit[ted] to all allegations
contained in [wife's] Bill of Compliant" and "incorporate[d] by
reference the allegations contained in" wife's bill of complaint.
On June 18, 2002, the trial court conducted a hearing on
husband's motion. The trial court found that the wife and
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wife's mother "having testfiied that [wife] was a resident of
the State of Virginia for 32 years [sic] was sufficient to prove
that the [wife] was an actual bona fide resident and domiciliary
of the Commonwealth" in accordance with Code § 20-97. The trial
court also held that husband's "failure to file [a timely]
Answer, attend despositions [sic], or to question [wife's]
residency and domicile, together with [his untimely] answer"
admitting that wife "was indeed a resident and domiciliary of
the State of Virginia" precluded him from reopening the suit and
re-litigating the question of domicile.
DISCUSSION
Code § 20-97 provides, in pertinent part:
No suit for annulling a marriage or for
divorce shall be maintainable, unless one of
the parties is and has been an actual bona
fide resident and domiciliary of this
Commonwealth for at least six months
preceding the commencement of the suit; nor
shall any suit for affirming a marriage be
maintainable, unless one of the parties be
domiciled in, and is and has been an actual
bona fide resident of this Commonwealth at
the time of bringing such suit.
Compliance with the provision of the Code's requirement
that one of the parties "'is and has been an actual bona fide
resident of this State for at least one year [now six months]
preceding the commencement of the suit for divorce' is essential
to the maintenance of the suit and must be established by
evidence introduced in the cause." Hiles v. Hiles, 164 Va. 131,
139, 178 S.E. 913, 916 (1935) (citing former Code § 5105).
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"A court speaks through its orders and those orders are
presumed to accurately reflect what transpired." McBride v.
Commonwealth, 24 Va. App. 30, 35, 480 S.E.2d 126, 128 (1997).
"Generally, the party asserting that a judgment is void for lack
of subject matter jurisdiction has the burden of proving that
fact." Winston v. Commonwealth, 26 Va. App. 746, 752, 497
S.E.2d 141, 144-45 (1998); see also Johnson v. Commonwealth, 12
Va. App. 391, 396, 404 S.E.2d 384, 387 (1991) (on appeal, the
trial court's judgment is presumed correct and the burden is on
the party alleging reversible error to show by the record that
he is entitled to reversal).
In its decree, the trial court stated that it considered
all the evidence and found that wife "is domiciled in and has
been a bona fide resident" of the state for the required period of
time. That evidence included the deposition testimony of wife's
mother who corroborated wife and stated that wife has been a
Virginia resident the entire time she has known her daughter; in
other words, wife is a lifelong resident and domiciliary of the
Commonwealth. Furthermore, the trial court reaffirmed its
holding following the hearing on husband's motion to vacate.
The record satisfactorily established that wife was "an actual
bona fide resident and domiciliary of this Commonwealth for at
least six months preceding the commencement of the suit." Code
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§ 20-97. Accordingly, the trial court properly obtained
jurisdiction and correctly denied husband's motion to vacate. 1
Affirmed.
1
Because we find the evidence sufficiently established the
domicile requirements of Code § 20-97, we do not address or rely
upon the fact that husband took inconsistent positions before
the trial court. Specifically, he challenged the trial court's
acquisition and exercise of jurisdiction, yet admitted in his
untimely answer and cross-bill "to all the allegations contained
in" wife's bill of complaint.
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