Yun Soo Kim v. Jung Ja Kim

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Overton
Argued at Alexandria, Virginia
YUN SOO KIM
MEMORANDUM OPINION * BY
v. Record No. 1825-00-4 JUDGE LARRY G. ELDER
APRIL 10, 2001
JUNG JA KIM
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
David F. Berry, Judge Designate
Barry L. Leibowitz (David K. Lee; Leibowitz &
Band, on briefs), for appellant.
Intak Lee for appellee.
Yun Soo Kim (husband) appeals from an order of the Circuit
Court of Prince William County (trial court) which awarded Jung
Ja Kim (wife) a divorce and periodic spousal support. On
appeal, husband contends, inter alia, that the trial court
erroneously awarded spousal support to wife without first
fashioning the requested equitable distribution award. We hold
the trial court committed reversible error to the extent it
purported to hold the order was a final order, and we reverse
that ruling. As to all other matters, we hold the order was
neither a final order nor an appealable interlocutory order.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Therefore, we dismiss the remainder of the appeal and remand for
further proceedings consistent with this opinion.
On March 2, 1999, wife filed a bill of complaint for
divorce in which she also sought spousal support and equitable
distribution of the parties' property. By order entered June
26, 2000, the trial court awarded wife a divorce a vinculo
matrimonii and ordered husband to pay spousal support to wife
monthly for five years pursuant to Code § 20-107.1. The order
provided that "distribution of marital properties shall be
determined at any time as requested by either party after this
Decree of Divorce is entered" and that "this cause is continued
as to matters of equitable distribution." Husband then noted
this appeal.
The Court of Appeals has appellate jurisdiction over final
decrees of a circuit court in domestic relations matters arising
under Titles 16.1 or 20, and any interlocutory decree or order
in such matters involving the granting, dissolving, or denying
of an injunction or "adjudicating the principles of a cause."
Code § 17.1-405; Erikson v. Erikson, 19 Va. App. 389, 390, 451
S.E.2d 711, 712 (1994).
A final decree is one "'"which disposes of the whole
subject, gives all the relief that is contemplated, and leaves
nothing to be done by the court."'" Erikson, 19 Va. App. at
390, 451 S.E.2d at 712 (quoting Southwest Va. Hosps. v. Lipps,
193 Va. 191, 193, 68 S.E.2d 82, 83-84 (1951) (quoting Ryan's v.
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McLeod, 73 Va. (32 Gratt.) 367, 376 (1879))). Where a bill of
complaint seeks a divorce, spousal support, and equitable
distribution, and the court enters a decree determining only
that the marriage is valid, the decree is not a final order
because it does not "'dispose[] of the whole subject . . . and
leave[] nothing to be done by the court.'" Id. at 391, 451
S.E.2d at 712. Similarly here, the decree from which husband
seeks to appeal is not a final order; although the bill of
complaint sought a divorce, spousal support and equitable
distribution, the challenged decree resolves only the first two
issues and leaves the equitable distribution for a later date.
Nor is the decree an interlocutory decree that adjudicates
the principles of the cause.
For an interlocutory decree to adjudicate
the principles of a cause, the decision must
be such 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.'" Pinkard v. Pinkard, 12 Va.
App. 848, 851, 407 S.E.2d 339, 341 (1991)
(quoting Lee v. Lee, 142 Va. 244, 252-53,
128 S.E. 524, 527 (1925)). . . . "'[T]he
mere possibility' that an interlocutory
decree 'may affect the final decision in the
trial does not necessitate an immediate
appeal.'" Polumbo v. Polumbo, 13 Va. App.
306, 307, 411 S.E.2d 229, 229 (1991)
(quoting Pinkard, 12 Va. App. at 853, 407
S.E.2d at 342).
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Id. at 391, 451 S.E.2d at 712-13. Because the decree did not
effect an equitable distribution and left open such issues as
the value of various items of marital property and the
percentage of marital property to which each spouse was
entitled, it did not constitute an appealable interlocutory
order.
Although we do not reach the merits of any issues other
than the finality of the order, we note that a trial court
entering an award of spousal support pursuant to Code § 20-107.1
"shall consider," inter alia, "[t]he provisions made with regard
to the marital property under § 20-107.3." Code § 20-107.1(E)
(emphasis added). Thus, absent special circumstances, "it [is]
reversible error for [a] trial court to make its final award
requiring husband to pay a lump sum or periodic spousal support
award to wife . . . without considering the income which may
result from the monetary award, if any, to which wife [may] be
entitled." Kaufman v. Kaufman, 7 Va. App. 488, 493, 375 S.E.2d
374, 377 (1988); see also Code § 20-107.1(F). However, a court
may, "in [its] discretion," award pendente lite support pursuant
to Code § 20-103 as "necessary" at "any time pending [the]
suit." Code § 20-103(A).
For these reasons, we reverse the determination of the
trial court that its order was a final order. We also dismiss
the remainder of the appeal, remand to the trial court for
further proceedings, and direct that the trial court consider
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the issue of spousal support anew after fashioning the equitable
distribution award.
Reversed in part,
dismissed in part,
and remanded.
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