Jodi Lynn Case v. James Samuel Case

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
JODI LYNN CASE
MEMORANDUM OPINION*
v. Record No. 0142-04-1 PER CURIAM
MAY 25, 2004
JAMES SAMUEL CASE
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
(Karen M. Vannan; Lasris & Vannan, P.C., on brief), for appellant.
(Philip A. Liebman, on brief), for appellee.
Jodi Lynn Case appeals the trial court’s final decree awarding her husband, James Samuel
Case, a divorce. On appeal, wife contends the trial court erred by (a) entering the final decree
without reserving jurisdiction for a later spousal support award, (b) refusing to bifurcate the
proceedings to address equitable distribution issues after entry of the divorce decree, and (c)
awarding to her husband permanent custody of their son. Husband contests each of these assertions
and requests an award of attorney’s fees on appeal.
Upon reviewing the record and briefs, we summarily affirm the decision of the trial court
pursuant to Rule 5A:27 and deny husband’s request for an award of appellate fees.
I.
On appeal, we view the evidence and all reasonable inferences in the light most favorable
to appellee as the party prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250, 391
S.E.2d 344, 346 (1990).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
The parties married on September 27, 1986. One child was born of the marriage in 1997.
The parties separated in January 2001; husband filed for divorce a year later. In his bill of
complaint, husband asked that wife be denied spousal support. Wife requested pendente lite
support but did not request permanent spousal support in her answer and cross-bill. Wife failed
to comply with the trial court’s orders requiring her to timely “submit § 20-124.3 Proffers.”
During the course of the litigation, wife’s counsel withdrew. Wife did not retain new counsel
until the day before the entry of the final decree, at which time she moved the court for a
continuance.
II.
(a) Reservation of Jurisdiction for Spousal Support
Wife argues that by denying her continuance motion, the trial court improperly denied
her the opportunity to request a reservation of jurisdiction for a future spousal support award.
We disagree.
Wife’s motion asserted that a continuance should be granted because, among other
things, “the final decree, as drafted, would serve to terminate [wife’s] right to spousal support,
which she has requested.” (Emphasis added). In fact, however, wife had not made a request for
permanent spousal support. Nor had she filed any pleading or motion expressly requesting a
reservation of jurisdiction for a future spousal support award.
“Fundamental rules of pleading provide that no court can base its judgment or decree
upon a right which has not been pleaded and claimed.” Boyd v. Boyd, 2 Va. App. 16, 18, 340
S.E.2d 578, 580 (1986). While we noted in Reid v. Reid, 24 Va. App. 146, 149, 480 S.E.2d 771,
772 (1997), that “Code § 20-79(b) confers jurisdiction upon a trial court adjudicating a divorce to
‘provide in its decree for the . . . support and maintenance [of] the spouse,’ upon the ‘requests’ of
‘either party to the proceedings,’” we held that in a divorce proceeding the relief being sought
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must be “‘specifically pled.’” Id. at 150, 480 S.E.2d at 773 (citation omitted). Similarly, we
have held that Code § 20-107.1 “grants to the divorce court the power to award maintenance and
support, but [that] the exercise of such power remains dependent upon the pleadings having
raised the issue.” Boyd, 2 Va. App. at 19, 340 S.E.2d at 580; see also Fleming v. Fleming, 32
Va. App. 822, 826, 531 S.E.2d 38, 40 (2000) (reversing an award of “spousal support [where]
the pleadings contained no request for it”).
Wife correctly notes that we have “held that where there is no bar to the right of spousal
support ‘it is reversible error for the trial court, upon request of either party, to fail to make a
reservation in the decree of the right to receive spousal support in the event of a change of
circumstances,’ even though, at the time of the decree, neither party needed support.” Blank v.
Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990) (quoting Bacon v. Bacon, 3 Va. App. 484,
491, 351 S.E.2d 37, 41 (1986)). That unremarkable proposition, however, presupposes that the
party seeking such relief has expressly requested it.
We agree with the trial court that wife’s continuance motion did not constitute an express
request for an award of permanent spousal support or a reservation of jurisdiction to make such
an award in the future. Wife’s continuance motion  filed a day before the final hearing, by an
attorney who failed to attend that hearing, in a case pending for over two years  was no doubt
motivated by a desire to postpone the proceedings to later seek the appropriate relief. But the
continuance motion was not itself a specific claim for relief beyond the mere request for a
postponement. Having exercised its discretion to deny the continuance, the trial court had no
obligation to go further and specifically rule on the motivations underlying the request for a
continuance as if they were discrete claims for relief. The only relief requested was a
continuance. Whether to grant a continuance is “a matter that lies within the sound discretion of
a trial court,” Carter v. Commonwealth, 39 Va. App. 735, 744, 576 S.E.2d 773, 777 (2003)
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(citation omitted), and subject to reversal only when the trial court abuses its discretion. None
has been shown here.
(b) Bifurcated Equitable Distribution
Wife next contends that the court erred by entering the final decree “without granting
[her] the right to request equitable distribution of marital property.” We disagree.
Bifurcating a proceeding to address equitable distribution following the entry of a divorce
decree is not a matter of right, but rather an exercise of the trial court’s discretion. It should be
done only when “clearly necessary” to achieve equity. Christensen v. Christensen, 26 Va. App.
651, 655, 496 S.E.2d 132, 134 (1998) (quoting Code § 20-107.3(A)). Wife raised the issue for
the first time a day before the entry of the final decree  here again, as one of her proffered
motivations for seeking a continuance. She presented no evidence or argument at the ore tenus
hearing on the subject. For these reasons, wife cannot demonstrate any abuse of discretion by
the trial court in failing to bifurcate the proceedings.
(c) Permanent Award of Child Custody
Wife also challenges the sufficiency of the evidence supporting the trial court’s child
custody determination. Viewing the record in the light most favorable to husband, as we must,
we find sufficient evidence to support the chancellor’s decision. In its pendente lite decree, the
trial court awarded physical custody to wife. The court also required both parties to submit
proffers on the statutory best-interests factors by March 25, 2002, and, absent a mediated
settlement, to participate in a home study conducted by the York-Poquoson Department of Social
Services (DSS).
In September 2002, when wife still had not forwarded her proffer, husband filed a show
cause petition with the court requesting, among other things, a transfer of physical custody of
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their son to him. The court denied the transfer of custody and ordered wife to file her proffer no
later than September 27, 2002. On January 27, 2003, when wife still had not filed her proffer,
the court transferred temporary physical custody to husband and ordered wife to submit her
proffer by February 10, 2003.
Wife did not submit her proffer until March 28, 2003 — over a year late.
Though delayed because of wife’s failure to cooperate, DSS filed its final report with the
trial court. The report surveyed the DSS investigation, summarized its interviews, and
recommended that husband be awarded permanent custody of his son.
When reviewing a court’s custody determination, we defer to the trial court’s factual
findings. “As long as evidence in the record supports the trial court’s ruling and the trial court
has not abused its discretion, its ruling must be affirmed on appeal.” Joynes v. Payne, 36
Va. App. 401, 416, 551 S.E.2d 10, 17 (2001) (citation omitted). In making a custody
determination, the court must consider the statutory factors outlined in Code § 20-124.3.
Nothing in the record proves wife’s assertion on appeal that the trial court failed to consider
these factors. Nor has wife shown any factual basis for challenging the trial court’s decision to
accept the DSS recommendation.
We also disagree with wife’s assertion that the trial court’s action was impermissible
“punishment” for her procedural defaults. One of the factors the trial court should consider is
“the ability of each parent to cooperate in and resolve disputes regarding matters affecting the
child.” Code § 20-124.3(7). The trial court reasonably inferred that wife’s year-long delay in
submitting her proffer was indicative of an inability on her part to cooperate in “matters affecting
the child.” Considered in this context, the fact of wife’s refusal to make a timely proffer and her
failure to cooperate with the DSS investigation were permissible circumstances for the trial court
to take into account.
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(d) Husband’s Request for Appellate Fees
Husband requests costs and attorney’s fees on appeal. We have explained the rationale
for an award this way:
The rationale for the appellate court being the proper forum to
determine the propriety of an award of attorney’s fees for efforts
expended on appeal is clear. The appellate court has the
opportunity to view the record in its entirety and determine
whether the appeal is frivolous or whether other reasons exist for
requiring additional payment.
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). While lacking in
merit, we do not believe wife’s arguments are so unreasonable as to warrant the imposition of
appellate fees and costs.
Affirmed.
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