Michael Eugene Summers v. Alicia Lehnes Summers ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Lorish and Senior Judge Annunziata
UNPUBLISHED
Argued by videoconference
MICHAEL EUGENE SUMMERS
MEMORANDUM OPINION* BY
v. Record No. 1376-21-4 JUDGE ROSEMARIE ANNUNZIATA
OCTOBER 25, 2022
ALICIA LEHNES SUMMERS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Richard E. Gardiner, Judge
Daniel C. Collier (Shannon L. Kroeger; Family First Law Group,
PLLC, on briefs), for appellant.
Beth A. Bittel (Joshua A. Anthony; Bittel & Anthony, P.C., on brief),
for appellee.
Michael Eugene Summers (husband) appeals a pendente lite order, awarding exclusive use
and possession of the former marital residence to Alicia Lehnes Summers (wife). Husband argues
that the circuit court erred by “not finding that an order requiring [him] to vacate the family
residence is an injunction.” He argues that the circuit court did not make the necessary findings to
award an injunction and that it erred by granting wife exclusive use and possession of the home
solely because the house was titled in wife’s name only. Finally, husband argues that the circuit
court erred by “ordering sua sponte that any personal property not removed by [him] from the
residence will be considered abandoned.” For the reasons below, we dismiss the appeal without
prejudice for lack of jurisdiction.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
“When reviewing a trial court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Shah v. Shah, 70 Va. App. 588, 591 (2019) (quoting Congdon v. Congdon, 40 Va. App. 255, 258
(2003)).
Husband and wife married on November 26, 1994. Before the marriage, the parties
purchased the marital residence and titled the home jointly. During the marriage, the parties
refinanced the mortgage on the marital residence.1 On November 20, 2002, in conjunction with
the refinance, husband signed a quitclaim deed transferring title of the marital residence to wife.
The quitclaim deed transferred the property to wife “as and for her sole and separate equitable
estate, free from the control or marital rights of any present or future spouse, and free from any
curtesy or dower rights of any present or future spouse.”
In the fall of 2021, wife filed a complaint for divorce and a motion for pendente lite relief.2
Wife requested that the circuit court award her exclusive use and possession of the marital residence
under Code § 20-103, order husband “to preserve the marital estate and his separate estate pending a
final resolution of this case,” and award her attorney fees and costs.
The parties appeared before the circuit court for a pendente lite hearing and informed the
court that the only issue was exclusive use and possession of the marital residence.3 The parties
stipulated to proffering the evidence. Wife offered a copy of the quitclaim deed into evidence
without objection. The circuit court heard the parties’ proffered evidence concerning the events
1
The parties dispute the reason for the refinance.
2
After the pendente lite hearing, husband filed an answer and counterclaim for divorce,
and wife filed an answer to the counterclaim.
3
Both parties had continued to reside in the marital residence, following their separation.
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leading to their separation. Husband also proffered that he was unemployed and had no other
housing options, which wife disputed. Wife agreed to pay husband $3,000 per month for six
months as a “residential subsidy.” After hearing the parties’ proffers and arguments, the circuit
court found that the language of the quitclaim deed was clear that wife’s title to the property was
“free from [the] control or marital rights of any present or future spouse.” The circuit court awarded
exclusive use and possession of the marital residence to wife and ordered her to pay $3,000 per
month for six months to husband “so that he [could] find a place to live.” The circuit court further
ordered husband to vacate the property within fifteen days and any property he did not take with
him would be considered abandoned and that wife could dispose of it. On November 19, 2021, the
circuit court entered the pendente lite order, memorializing its rulings.
Husband timely filed a motion for reconsideration, which the circuit court denied in part and
granted in part. The circuit court denied his motion with respect to exclusive use and possession of
the marital residence but granted his motion with respect to his personal property. The circuit court
amended its ruling so that if husband was unable to remove all his property within fifteen days of
the pendente lite order, he could “enter the marital residence on a mutually agreed upon day, not
less than once a week, for an additional period of sixty (60) days following the expiration of the
fifteen (15) days to remove his personal property.” This appeal followed.
ANALYSIS
Husband challenges the circuit court’s pendente lite order. Wife argues that the pendente
lite order is a non-appealable interlocutory order and the appeal should be dismissed for lack of
jurisdiction.
The circuit court entered the pendente lite order on November 19, 2021, and husband noted
his appeal of that order on December 20, 2021. Code § 17.1-405, the code section relevant to the
issues on appeal, was amended effective January 1, 2022. See 2021 Va. Acts Spec. Sess. I ch. 489.
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The amended code section does not control the resolution of this appeal. “[W]hen a statute is
amended while an action is pending, the rights of the parties are to be decided in accordance with
the law in effect when the action was begun, unless the amended statute shows a clear intention
to vary such rights.” Washington v. Commonwealth, 216 Va. 185, 193 (1975). “The general rule
is that statutes are prospective in the absence of an express provision by the legislature.” Id. As
Code § 17.1-405 does not contain an express provision indicating that the amendments to this
Court’s jurisdiction should be applied retroactively, we find that husband’s right to appeal from
an interlocutory order is governed by the provisions of Code § 17.1-405 in effect when husband
noted his appeal.
Accordingly, under Code § 17.1-405 prior to amendment, this Court’s jurisdiction was
limited. Friedman v. Smith, 68 Va. App. 529, 538 (2018); see also de Haan v. de Haan, 54
Va. App. 428, 436 (2009). The Court had appellate jurisdiction over final decisions of the circuit
courts in domestic relations cases and interlocutory orders involving injunctions or “adjudicating the
principles of a cause.” Code § 17.1-405 (2020 Repl. Vol.). The pendente lite order placed at issue
in this case is neither a final order nor an appealable interlocutory order.
“A final order or decree for the purposes of Rule 1:1 ‘is one which disposes of the whole
subject, gives all the relief contemplated . . . and leaves nothing to be done in the cause save to
superintend ministerially the execution of the order.’” Friedman, 68 Va. App. at 538 (alteration
in original) (quoting de Haan, 54 Va. App. at 436-37). By contrast, a pendente lite order
preserves the status quo of the parties until a final decree of divorce. Everett v. Tawes, 298 Va.
25, 34 (2019). It has “no presumptive or determinative effect on the underlying cause of
divorce” and does not determine the rights of the parties or address the main issues of the divorce
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suit.4 Id.; see also Code § 20-103(J) (“[a]n order entered pursuant to this section shall have no
presumptive effect and shall not be determinative when adjudicating the underlying cause”). In
short, a pendente lite order is not a final order and “not directly appealable.” Everett, 298 Va. at
34.
The pendente lite order in this case is an interlocutory order, id. at 35, but it is not an
order “adjudicating the principles of a cause,” Code § 17.1-405 (2020 Repl. Vol.). To adjudicate
the principles of a cause, an interlocutory order must determine that
the rules or methods 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.
Bajgain v. Bajgain, 64 Va. App. 439, 449 (2015) (quoting Pinkard v. Pinkard, 12 Va. App. 848,
851 (1991)). It “must address ‘the chief object[s] of the suit.’” Id. (alteration in original)
(quoting Erikson v. Erikson, 19 Va. App. 389, 391 (1994)). “Typically, [in divorce matters,]
such goals include obtaining a divorce, determining custody of children, deciding whether to
grant child or spousal support, and resolving equitable distribution.” de Haan, 54 Va. App. at
439.5 The pendente lite order here does not adjudicate the principles of a cause and cannot be
deemed an appealable interlocutory order as defined under Code § 17.1-405 (2020 Repl. Vol.).
4
The parties scheduled a multi-day trial in November 2022 to be heard on the grounds for
divorce, equitable distribution, support, and attorney fees.
5
Virginia’s appellate courts have previously considered whether an
order in a divorce suit is one that “adjudicates the principles of a
cause.” See, e.g., Lewis v. Lewis, 271 Va. 520, 527-28 (2006)
(order dismissing husband’s cross-bill for annulment did not
adjudicate the principles of a cause when wife’s divorce complaint
seeking divorce and equitable distribution was still pending); Webb
v. Webb, 13 Va. App. 681, 682-83 (1992) (interlocutory order
finding a separation agreement invalid was not appealable because
“[t]he matter was still in the breast of the court and subject to
alteration and amendment by the judge before entering an
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Finally, prior to amendment, Code § 17.1-405 established that this Court had appellate
jurisdiction over “interlocutory orders involving injunctions.” To the extent the pendente lite
order awarding wife exclusive use and possession of the marital residence can be construed as an
injunction, we are without jurisdiction to address the issue because husband failed to comply
with the statutory framework for appellate review of injunctions that was in effect at the time.
See Code § 8.01-626 (2015 Repl. Vol) (providing that an aggrieved party may file a petition for
review within fifteen days of the circuit court’s order). Husband did not file a petition for review
within the specified time.
In summary, because the circuit court’s pendente lite order is neither a final order nor an
appealable interlocutory order, this Court does not have jurisdiction to hear this appeal and we
dismiss the appeal without prejudice.
Wife requests an award of attorney fees and costs incurred on appeal. See Rule 5A:30(b);
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695 (1996). “The decision of whether to award
attorney’s fees and costs incurred on appeal is discretionary.” Koons v. Crane, 72 Va. App. 720,
742 (2021) (quoting Friedman, 68 Va. App. at 545). On consideration of the record before us,
we deny wife’s request for an award of attorney fees and costs incurred on appeal.
appealable order” and the court still had to address the remaining
issues, including the grounds for divorce and equitable distribution
(alteration in original) (citations and internal quotation marks
omitted)); Erikson, 19 Va. App. at 391 (decree upholding the
validity of the marriage did not adjudicate the principles of a cause
because the ruling did not determine whether a divorce would be
granted or on what grounds). But see Chaplain [v. Chaplain], 54
Va. App. [762,] 768-69 [(2009)] (order upholding a premarital
agreement adjudicated the principles of a cause when the parties
stipulated that the grounds for divorce were not contested and the
sole issue to be decided by the circuit court was the validity of the
premarital agreement).
Bajgain, 64 Va. App. at 449-50.
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CONCLUSION
For the reasons stated above, the appeal is dismissed without prejudice.
Dismissed.
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