Litigation Procedure and Law - § 8-11 - § 8-14 (C)

  § 8-11. Equity

  (A)       Generally

2015—MacDougal v. Levick, 66 Va. App. 50
Equitable doctrines such as laches and estoppel are generally rejected in divorce suits because the body of divorce law is now chiefly statutory in character.

2000—Hawthorne v. Smyth, 33 Va. App. 130
A court will not compel a vain and useless undertaking.

1995—Buxbaum v. Buxbaum, 20 Va. App. 181
Even a court of equity, in an effort to do equity, cannot disregard the provisions of a lawful decree, nor is such a court justified in offsetting against payments required to be made under such a decree voluntary payments.

  (B)       Laches

2002—Bazzle v. Bazzle, 37 Va. App. 737
Laches is the neglect or failure to assert a known right or claim for an unexplained period of time under circumstances prejudicial to the adverse party. The burden of proving laches and prejudice is uponthe litigant asserting the defense. When a trial court considers the defense of laches, it does not apply an absolute rule such as a statute of limitations, but instead examines each case in light of the particular circumstances. Therefore, whether a claim is barred by laches is primarily a decision resting within the discretion of the trial court. Absent an abuse of that discretion, the decision will not be overturned on appeal.

1992—Bennett v. Comm. of Va. DSS, DCSE, 15 Va. App. 135
The doctrine of laches may not be interposed by the obligor spouse to a spousal support arrearage claim.

  (C)       Declaratory Judgment

2011—Prizzia v. Prizzia, 58 Va. App. 137

If the fugitive disentitlement doctrine applies in a particular case, the remedy afforded by the doctrine is a dismissal of the litigant’s claims or a complete bar to the litigant’s participation in the action. If a lesser alternative to such an extreme remedy is available, the doctrine does not apply. The doctrine and its various rationales do not grant a non-fugitive party a right to the imposition of any particular lesser remedy in a specific case.

Where husband did not request that wife be barred from pursuing her action, but instead simply requested that she be forced to appear in person rather than via telephonic deposition, he acknowledged that a remedy less than dismissal or complete bar was available. Thus, he could not successful argue that the court erred in refusing to apply the fugitive disentitlement doctrine to wife.

2009—Miller v. Jenkins, Va. 54 Va. App 282 (June 23, 2009)
Circuit court had no jurisdiction to entertain action for declaratory judgment where other remedies were available to the party seeking the judgment. When appellant opposed appellee’s motions to register and enforce out-of-state custody orders in the trial court, she pursued those other available remedies. The harm she alleged “may be suffered” had, in fact, already been suffered, as the appellee had already moved to register and enforce the orders.

  (D)       Injunctions

2009—Miller v. Jenkins, Va. 54 Va. App 282 (June 23, 2009)
Trial court did not err in dismissing claims for injunctive relief, as appellant had and was currently pursuing an adequate remedy at law by defending against appellee’s motion to register and enforce custody orders. Courts will not enjoin the prosecution of an action at law when the defendant can make a full and adequate defense in such action.

2005—D’Ambrosio v. D’Ambrosio, 45 Va. App. 323 (2005)

To secure an injunction, a party must show irreparable harm and the lack of an adequate remedy at law. The injunction must also be specific in its terms, and it must define the exact extent of its operation so that there may be compliance. In other words, the injunction should set forth what is enjoined in a clear and certain manner and its meaning should not be left for speculation or conjecture.

Trial court erred in granting injunction prohibiting the father from “making defamatory comments about the mother to third parties.” The mother presented no evidence that, absent the injunction, she would be irreparably harmed, nor did she demonstrate the lack of an adequate remedy at law, as a common law action for defamation would have been available had the father actually made defamatory comments. Moreover, the injunction was vague and overbroad, in that it failed to adequately delineate which of the father’s potential comments might violate the injunction.

  (E)       Unclean Hands

2015—Bajgain v. Bajgain, 64 Va. App. 439
The “clean hands” doctrine is unavailable to a party when it is asserted in the context of equitable distribution proceedings or in the context of the determination of spousal support pursuant to Code §20-107.1. Although divorce cases appear on the chancery side of the docket, the many statutory limitations placed on divorces differentiate those cases from ordinary suits in equity.

2011—Harris v. Va. Dept. of Soc. Srvc’s, DCSE, Va. Ct. of Appeals, Unpublished, No. 2703-10-3
Trial court did not abuse discretion in applying the doctrine of unclean hands to deny father’s motion to reduce child support due to a $2,649 arrearage that husband had accumulated prior to his loss of employment. (NOTE: The Court of Appeals specifically noted that the trial court did not appear to have denied the motion based solely on the arrearages and the application of the unclean hands doctrine, but also on grounds that husband failed to carry his burden of proof because he failed to offer evidence as to his expenses or changes in the child’s needs.)

  (F)       Fugitive Disentitlement Doctrine

2011—Morrison v. Morrison, 57 Va. App. 629
The Fugitive Disentitlement Doctrine springs from the inherent power of courts to enforce their judgments and protect their dignity. In essence, it provides that a fugitive from justice may not seek relief from the judicial system whose authority he/she evades. The doctrine applies in both criminal and civil cases. In order to employ the doctrine, the record must show (i) that the party against whom the doctrine is advanced is a fugitive; (ii) that there is a nexus between the current case and the party's status as a fugitive; and (iii) that dismissal is necessary to effectuate the policy concerns underlying the doctrine. Some of the policy concerns include prejudice to the opponent, delay, frustration, and unenforceability. Use of the doctrine must be a reasonable response to the problems and the needs of the case. Because it is a severe sanction, the court must exercise discretion in determining whether to apply the doctrine.

Although a litigant may qualify as a fugitive by fleeing the jurisdiction, a litigant may also “constructively flee” by remaining outside the jurisdiction and refusing to return.

Cases involving custody are in an entirely different category than other issues for fugitive disentitlement purposes. The best interests of a child are paramount in custody disputes, and barring a parent who has lost a child from even arguing that the child was wrongfully removed to another country is too harsh, particularly in the absence of any showing that the fugitive status has impaired the rights of the other parent. This is not to say that the doctrine should never be applied in custody cases, but simply that it should be used sparingly and where there is no significant negative impact on the best interests of any children.

The Court of Appeals refused to apply the fugitive disentitlement doctrine to bar mother’s appeal of a Virginia trial court’s refusal to register a Michigan custody order. Although the mother was a fugitive from outstanding arrest warrants in Michigan and from a federal indictment for parental kidnapping, her status as a fugitive had no nexus to her appeal of the Virginia court’s refusal to register the prior order. Her request for registration resulted, not from her absconding from Michigan to Austria with the child or from her refusal to submit to the jurisdiction of the Michigan courts, but from father’s actions in bringing the child back to Virginia. Furthermore, the father was not prejudiced in the present appeal by her refusal to submit to the jurisdiction of a Michigan court, as the Virginia courts had not been asked to determine custody, but instead, to simply give full faith and credit to the Michigan custody order.

  § 8-12. Estoppel

2011—Pramagioulis v. Pramagioulis, Va. Ct. of Appeals, Unpublished, No. 1437-10-2
Trial court did not err in finding that husband was equitably estopped from contesting spousal support, where husband and his attorney specifically promised to wife, prior to her signing a settlement agreement wherein she waived spousal support, that husband would continue to support her and provide her with additional funds to meet her basic expenses. Wife had significant psychological conditions, and, according to the testimony of her counselor, was very gullible. She thought that the settlement agreement was being entered into solely for the purpose of enabling husband to receive a bond for his business.

2000—Whiting v. Whiting, 32 Va. App. 192
Husband was estopped from contesting validity of decree as he had relied upon decree in remarrying. 

1996—Twinam v. Twinam, Va. Ct. of Appeals, Unpublished, No. 0765-96-4 (Nov. 12, 1996)
The trial court did not err in finding that wife was equitably estopped from contesting the validity of a modification to the parties’ settlement agreement, where wife’s primary argument against the modification was that her and husband’s signatures to the modification were not notarized, and thus not executed “with the same formality” as the original agreement. The modification was in writing and signed by both parties, and both parties operated under the modification for over five years. Wife’s conduct in signing the modification and accepting modified child support payments by husband induced husband to believe that the modification was uncontested. Moreover, mother’s challenge, if successful, would result in a substantial back debt owed by father.

1990—Slagle v. Slagle, 11 Va. App. 341
The trial court did not err in determining that collateral estoppel barred Husband from challenging his paternity and attendant obligation to support the minor child where the final divorce decree stated that the child was born of the marriage. Under the principle of collateral estoppel, the parties to the first action and their privies are precluded from litigating in a subsequent action any issue of fact actually litigated and essential to a valid and final personal judgment in the first action. Incorporated in the parties’ final decree of divorce was the trial court’s finding that the child was born of the marriage. Implicit in that ruling was a finding by the court that Husband was the father of the child, and thereby obligated to make support payments until the child reached the age of majority. The issue of Husband’s paternity had thus already been conclusively adjudicated in the final divorce decree.

In order to establish a collateral estoppel bar, the party asserting collateral estoppel must establish by a preponderance of the evidence that the precise issue or question sought to be precluded was raised and determined in a previous action. Before finding that a party has met this burden, the trial court is required to determine exactly what was decided in the earlier trial. The inquiry must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.

1976—T. v. T, 216 Va. 867
To establish equitable estoppel, it is not necessary to show actual fraud, but only that the person to be estopped has misled another to his prejudice, or that the innocent party acted in reliance upon the conduct or misstatement by the person to be estopped. Elements necessary to establish equitable estoppel, absent a showing of fraud and deception, are (i) a representation; (ii) reliance; (iii) a change of position; and (iv) detriment.

Husband was equitably estopped from pleading the statute of frauds to avoid liability for child support for wife’s illegitimate child. Prior to marriage, husband promised wife that if she married him rather than moving and placing the child for adoption, he would care for the child “as if it were his own.” Wife changed her plans, married husband, and substantially performed her obligation under the agreement until husband rendered further performance impossible by seeking an end to the marriage

  § 8-13. Guardian ad Litem

2018—Sims-Bernard v. Bernard, Va. Ct. of Appeals, Unpublished, 0918-17-2
The trial court did not err in awarding guardian ad litem fees in excess of $11,000 or in ordering Mother to pay approximately $10,000 of the guardian’s fees. Although Mother relied on Code of Virginia §§ 16.1-267 and 19.2-163 to support her contention that the trial court erred, those sections are inapplicable because they pertain to juvenile and domestic relations district court cases and criminal cases respectively. This is a custody and visitation case which took place entirely in the circuit court. Further, the record demonstrates that Mother’s actions unnecessarily increased the expense necessary to conclude the case. Between the initial court proceeding when the guardian was appointed, and the final ruling approximately a year and a half later, the parties were required to attend four separate hearings at Mother’s request to address her refusal to undergo an independent psychological evaluation and her repeated, unsuccessful attempts to convince the court to dispense with the requirement.

2015—Aratoon v. Roberts, Va. Ct. of Appeals, Unpublished, No. 0529-14-4
The trial court erred in appointing a guardian ad litem sua sponte to determine whether Husband qualified for disability benefits and to present evidence of the same. Husband was already represented by counsel and the evidence regarding Husband’s alleged disability, which was presented prior to the trial court’s appointment of a guardian, was inconclusive. The circumstances of the case provided no statutory basis on which a guardian could be appointed.

2015—Lowe v. DCSE, Va. Ct. of Appeals, Unpublished, No. 0834-14-2
The trial court did not err in denying Father’s request for a guardian ad litem because, although Father was incarcerated, he was not a party defendant to the lawsuit. Rather, Father was the party who filed the action in the court to amend his child support obligation. Code of Virginia § 8.01-9(a) provides that a person under a disability, including a convicted felon who is incarcerated, shall be appointed a guardian ad litem when he is a “party defendant.” The statute is not concerned with the capacity of a person under a disability to sue, but with the protection of such person when named as a defendant in a lawsuit. The filing of a lawsuit is a plaintiff’s affirmative act that does not carry with it the need for the type of court-initiated protection which may exist when a person with a disability is required to defend himself in litigation that he did not initiate.

2014—Azam v. Miah, Va. Ct. of Appeals, Unpublished, No. 0884-14-2
The trial court did not abuse its discretion in declining to appoint a guardian ad litem for the child. A trial court has the discretionary power to appoint a guardian ad litem in a contested custody case when it finds that the best interests of the child are not adequately protected by the parties. Here, although the child was available to speak with the trial court, such conversation with the child was unnecessary because the trial court could ascertain the best interests of the child from parties’ and witness’s testimony.

2011—Breit v. Mason, Va. Ct. of Appeals, No. 0337-11-1
Trial court abused discretion in appointing as guardian ad litem for child an attorney previously hired by and paid by mother to represent the child. Prior to the appointment, the attorney admitted that she had not met with the child, inquired as to the relationship the child had with the biological father, or done any investigation of the biological father, despite having taken an identical position as the mother in seeking to bar biological father’s petition to establish paternity.

2011—Anonymous C v. Anonymous B, Va. Ct. of Appeals, Unpublished, No. 2232-09-2
While Va. Code § 16.1-278.19 is clearly designed to give the trial court authority to shift the burden of attorney’s fees and costs from one party to the other, it does not set out a requirement that a guardian ad litem’s fees must be divided among the parties based on their relative financial abilities. Moreover, under Va. Code § 16.1-267(A), the court is required to assess the total costs of the guardian ad litem’s representation of the child against both parents. Although that statute is silent as to how to apportion those costs between the parents, the trial court has discretion in doing so.

2010—Evans v. Evans, Va. Ct. of Appeals, Unpublished, No. 1936-09-3
Trial court did not err in ordering husband to pay 80% of the guardian ad litem’s fees, based on findings by the court that husband “created the majority” of the need for the guardian’s extensive time on the case.

2003—Kane v. Szymczak, 41 Va. App. 365
The decision to appoint guardian fees between both parties or to one party alone is a matter within the trial court’s sound discretion.

2003—Ferguson v. Grubb, 39 Va. App. 549
The trial court did not err in continuing the appointment of a guardian ad litem after having deemed the custody matters before it ended. Va. Code § 20-124.2 grants a court continuing authority and jurisdiction to make additional orders necessary to effectuate and enforce court-ordered custody and visitation arrangements. Thus, once a court has ruled on matters relating to custody and visitation of minor children, the court retains jurisdiction throughout the minority status of the child involved. That authority includes the power to order the continued appointment of a guardian ad litem until the children have reached the age of majority.

Trial court did not err in allowing the guardian ad litem to utilize staff members to carry out duties such as home visits. There is no authority standing for the proposition that a guardian ad litem is barred, in an appropriate case, from utilizing court-approved or designated staff to assist with fulfilling his/her obligations as guardian ad litem.

1993—Verrocchio v. Verrocchio, 16 Va. App. 314
The trial court in a divorce case has authority to appoint a guardian ad litem, and to apportion the costs among the parties.  A finding that the appointment is necessary and would be in the best interest is an essential prerequisite.

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  § 8-14. Jurisdiction

  (A)       Personal/Service of Process

2018—Skillings v. Franks, Va. Ct. of Appeals, Unpublished, No. 1235-17-2
In a contempt proceeding, Mother waived any objections she may have had to the trial court’s personal jurisdiction over her. Mother and her counsel appeared before the trial court for the contempt charge, and Mother subsequently filed numerous pleadings and requested affirmative relieve from the trial court. Additionally, Mother invoked the trial court’s jurisdiction in the underlying custody matter by filing pleadings and requesting affirmative relief. By participating in the contempt proceeding and the underlying custody proceeding, Mother consented to the trial court’s personal jurisdiction over her.

2014—Washington v. Lucas, Va. Ct. of Appeals, Unpublished, No. 1221-14-3
Because the trial court lacked personal jurisdiction over Wife, it did not err in dismissing Husband’s petition for separate maintenance. Under Code of Virginia 8.01-328.1(A)(9) (the long-arm statute), a Virginia circuit court may exercise personal jurisdiction over a non-resident defendant who “maintained within this Commonwealth a matrimonial domicile at the time of separation of the parties upon which . . . separate maintenance is based, or at the time a cause of action arose . . . or at the time of commencement of such suit, if the other party to the matrimonial relationship resides herein . . . .” Here, Husband and Wife married while Husband was incarcerated in Virginia. Husband remained incarcerated throughout the marriage. Additionally, Wife never resided in Virginia and was a Maryland resident when she was served in Maryland. Accordingly, Husband failed to demonstrate that the parties established a matrimonial domicile in Virginia or that Wife was a Virginia resident when Husband filed his petition.

2011—Harrison v. Harrison, 58 Va. App. 90
The trial court did not err in finding that it lacked personal jurisdiction over wife pursuant to Va. Code §20-146.8, despite the fact that husband had her personally served while she was in Virginia. Prior to the date of service, Husband had initiated an emergency custody proceeding in Virginia, which wife came to Virginia for the sole purpose of defending. Though service did not take place until a few days after the conclusion of that hearing, wife had remained in Virginia from the date of the hearing until the date of service solely because husband had insisted on not releasing custody of the children to her until that date. The Court of Appeals found that the use of the past tense in the immunity provision of the statute evinced an intent by the legislature to extend the immunity protection of the statute beyond the time of the custody hearing itself.

The existence or non-existence of domicile is mixed question of law and fact. Domicile is defined to be a residence at a particular place, accompanied with a positive or presumptive proof of an intention to remain there for an unlimited time. Proof of the intention to remain may be positive or presumptive. Intent is to be inferred from declarations and from conduct, and acts and conduct showing intent outweigh declarations or expressions of intent.

Trial court did not err in finding that it lacked personal jurisdiction over wife pursuant to Va. Code §8.01-328.1(A)(9), as wife had never maintained a matrimonial domicile in Virginia. Husband’s Virginia residence was titled in his name only, and wife had neither signed any documents related to the residence, nor lived in it. Wife moved with the children into a new residence in Belgium after husband had returned to the U.S. from Belgium. The parties’ enrolled their children in school in Belgium after husband had relocated to the U.S., and husband had signed a statement granting permission for the children to be registered and reside in Belgium after the parties separated. Furthermore, the Court of Appeals refused to adopt the theory of “constructive matrimonial domicile,” whereby husband attempted to argue that wife had “defrauded” husband by claiming she would remain married to him and move to Virginia while secretly intending to remain in Belgium.

2011—Bergaust v. Flaherty, 57 Va. App 423
Personal jurisdiction analysis under the Virginia long-arm statute (Va. Code § 8.01-328.1) is a two-step process. First, each alleged cause of action must be measured for a fit against each alleged part of the long-arm statute. If no fit is found, the inquiry ends: there is no personal jurisdiction. It is only if any of the long-arm provisions fit that a further inquiry into the defendant’s “minimum contacts” with Virginia must be made.

The trial court did not err in finding that it did not have personal jurisdiction, pursuant to the Virginia long-arm statute, over the father of a child who was conceived in France. Although the mother and the child resided in Virginia, the father had visited the child in Virginia and had acknowledged paternity while visiting, the Virginia long-arm statute does not confer jurisdiction over claims that do not arise from a defendant’s acts in the state. The use of the terms “fathered” and “conceived” in the Virginia long-arm statute refer to the act of procreation, which, in this case, did not occur in Virginia.

2005—Cabaniss v. Cabaniss , 46 Va. App. 595
Trial court did not err in finding personal jurisdiction over Husband pursuant to the long-arm statute based on allegations in Wife’s Complaint that i) the parties were married in 1982; ii) the wife was domiciled in and a bona fide resident of Virginia; iii) Husband lived abroad; iv) the parties last cohabitated in Lexington, Virginia; v) on March 19, 2002, Husband, at that time gone from the marital residence, called Wife and informed her that the marriage was over; and vi) since that date Husband had not returned to the matrimonial domicile.  Husband’s argument that the Complaint did not sufficiently state that the parties had been maintaining a matrimonial domicile at the time they separated, as required by the long-arm statute (8.01-328.1(A)(9)), is without merit.  Given the allegations contained in the Complaint, Husband “could not have been mistaken” that Wife was alleging that the parties had been maintaining a matrimonial domicile at the time of their separation upon which wife’s action for divorce was based.    

While a court with in rem jurisdiction may enter a divorce decree, personal rights, which include property and support rights in divorce cases, may not be adjudicated by a court lacking in personam jurisdiction. 

2003—Blackson v. Blackson, 40 Va. App. 507
Trial court found to have subject matter and personal jurisdiction where Wife returned to Virginia from abroad and filed for divorce, and Husband was served when he came into State in response to divorce filing.

1995—Schlieper v. Schlieper, Va. Ct. of Appeals, Unpublished, No. 2219-94-4
Trial court did not err in entering a final decree in wife’s absence, despite wife’s claim that she never received notice of the entry of the decree because it was mailed to her previous, rather than her new address. Wife was properly served at the former marital residence, but moved to a new residence during the pendency of the case. Pursuant to Va. Code §8.01-319, wife was required to provide a written statement of her address to the clerk of the court, and when that address changed after service of the initial complaint, to update the information with the court. Her failure to do so gave the trial court the authority to dispense with notice of further proceedings.

1992—County of Orange v. Morgan, 28 Vir. Cir. 189 (no link available)
An officer’s return is prima facie proof of service, which can only be overcome by clear and convincing evidence.

1992 --- Carlton v. Paxton, 14 Va. App. 105, aff’d en banc, 15 Va. App. 265
The trial court erred in finding that the clerk mailed the defendant a copy of an order in accordance with Code of Virginia § 8.01-317, where no certificate of compliance was on file with the clerk. Code of Virginia § 8.01-317 provides the procedural requirements for carrying out service by publication, including, among other things, that a copy of the order of publication be posted on the front door of the courthouse, mailed to the defendant’s last known address, and published in a newspaper once a week for four consecutive weeks. The statute further requires the clerk to take responsibility for meeting these requirements and to file a certificate indicating that they have been met. Because service by publication constitutes constructive notice only, the procedural requirements must be strictly construed and require strict adherence. Substantial compliance is insufficient.

1991—Bellis v. Commonwealth, 241 Va. 257 (no link available)
A sheriff’s return is prima facie evidence of the facts stated therein. Code of Virginia §8.01-326. “The return gives rise to a rebuttable presumption that the paper served, or knowledge of it, has actually reached the person sought to be served in time to permit compliance with its command.”

1985—Lester v. Bennett, 1 Va. App. 47.
Husband was not immune from service of process despite appearing in court (where he was served) in response to a summons.

1899—Rowe’s Adm’r v. Hardy’s Adm’r, 97 Va. 674 (no link available)
There is a legal presumption that an officer has performed his duty. As a result, it must be presumed, in the absence of evidence to the contrary, that an undated return was served while the officer had the right to serve it and in due time.

  (B)       Subject Matter

2018—Skillings v. Franks, Va. Ct. of Appeals, Unpublished, No. 1235-17-2
The trial court had subject matter jurisdiction sufficient to enter an order of contempt against Mother for removing the the child from Virginia in violation of the trial court’s custody and visitation order. Although the custody and visitation order was pending appeal in the Court of Appeals when Mother absconded with the child, the trial court retained the authority to enforce its custody order.

2012—Williams v. Williams, 61 Va. App. 170
The circuit court did not err in holding that it lacked subject matter jurisdiction to modify a child support order, where a different circuit court had entered the initial order pursuant to prior divorce litigation and had entered an order modifying the initial determination, but had at no point ordered the case transferred or otherwise relinquished jurisdiction. Va. Code §20-108 confers continuing and exclusive subject matter jurisdiction to revise and alter such decrees on the particular circuit court that entered the original decree.
Though transfer may be appropriate in cases where venue is improper, when a court lacks subject matter jurisdiction, the case must be dismissed.

2012—Russell v. Russell, Va. Ct. of Appeals, Unpublished, No. 2599-11-1
Though the circuit court lost active jurisdiction over custody matters incident to the parties’ divorce when husband appealed a custody order to the Court of Appeals, the circuit court did not lose subject matter jurisdiction over custody pending husband’s appeal. Thus, additional orders entered by the circuit court regarding custody while husband’s appeal was pending were not void ab initio, but, at best, only voidable.

2011—Marrison v. Fairfax Cty. Dept. of Family Services, Va. Ct. of Appeals, No. 0174-11-4
If the language of a statute is limiting, then it is jurisdictional and mandatory. If the statute does not contain this prohibitory language, then it is merely a procedural directive. If the statute is mandatory, a court must meet its requirements in order to exercise subject matter jurisdiction. If the statute is procedural, then failure to meet its requirements does not necessarily prevent the court from exercising its jurisdiction. In order to divest the court of its jurisdiction, a party would need to show harm that resulted from failure to comply with the requirement.

2011—Prizzia v. Prizzia, 58 Va. App. 137
Subject matter jurisdiction is the authority granted through constitution or statute to adjudicate a class of cases or controversies. However, there is a difference between the power of the court to adjudicate a specified class of cases, commonly known as “subject matter jurisdiction,” and the authority of a court to exercise that power in a particular case. As the Virginia Supreme Court explained in Ghameshlouy v. Commonwealth, 279 Va. 379 (2010): “subject matter jurisdiction...understood as ‘potential jurisdiction,’ becomes ‘active’ jurisdiction - the power to adjudicate a particular case upon the merits - only when various elements are present, such as subject matter jurisdiction, territorial jurisdiction, notice jurisdiction, and the other conditions of fact which are demanded by the unwritten or statute law as the prerequisites of the authority of the court to proceed to judgment or decree.” While the lack of subject matter jurisdiction can be raised at any time, by any party or the court sua sponte, defects in the other jurisdictional elements will be considered waived unless raised in the pleadings filed with the trial court and properly preserved on appeal.

2010—Kotara v. Kotara, Va. Ct. of Appeals, Rec. No. 0290-09-4
A court has the jurisdiction to determine whether it has jurisdiction over a particular case.

2007—Jett v. Jett, Va. Ct. of Appeals, Unpublished, No. 2862-06-4
Husband contended that the trial court lacked subject matter jurisdiction to enter a spousal support award in its final divorce decree because Wife’s bill of complaint for divorce did not ask the trial court to award spousal support.  The Court of Appeals held that the question Husband raised was related solely to the court’s ability to exercise the subject matter jurisdiction granted by statute, it was waivable, and Husband waived his opportunity to challenge this aspect of the trial court’s spousal support award by failing to object to the entry of the final decree in a timely fashion.

2005—Cabaniss v. Cabaniss , 46 Va. App. 595
While a court with in rem jurisdiction may enter a divorce decree, personal rights, which include property and support rights in divorce cases, may not be adjudicated by a court lacking in personam jurisdiction. 

2004—DeAvies v. DeAvies, 42 Va. App. 342
Whether an alleged error by a trial court renders its order void turns on the subtle, but crucial, difference between the power of a court to adjudicate a specified class of cases, commonly known as subject matter jurisdiction, and the authority of a court to exercise that power in a particular case.

2003—Blackson v. Blackson, 40 Va. App. 507
Trial court found to have subject matter and personal jurisdiction where Wife returned to Virginia from abroad and filed for divorce, and Husband was served when he came into State in response to divorce filing.

2001—Holden v. Holden, 35 Va. App. 315
The trial court lacked jurisdiction to modify a spousal support award contained in the final order of divorce while the final order was pending appeal to the Court of Appeals, despite the fact that husband had withdrawn his assignment of error on the issue of spousal support from appellate consideration. Once the appeal of the final order was filed, the jurisdiction of the trial court to modify any portion of theorder ceased. While the trial court still had jurisdiction to enforce the order, it did not have jurisdiction to modify it without leave of the Court of Appeals.

1999—Calfee v. Calfee, 29 Va. App. 88
An order adjudicating an appeal from the juvenile court to the circuit court is not entitled to the procedural convenience of transfer provided in Va. Code §20-79. Such order, together with the related issues embraced by the appeal, rests within the exclusive jurisdiction of the circuit court pending disposition by that court. Upon disposition of the appeal in circuit court, a “remand” to the juvenile court constitutes a surrender of jurisdiction to the original statutory authority of the juvenile court pursuant to Va. Code §16.1-297. Such remand does not create concurrent jurisdiction in the circuit court, except for that provided by Va. Code §§ 16.1-241 and 16.1-244. Thus, after such remand, the circuit court is without authority to reinstate the case upon its docket for purposes of enforcement or modification. Instead, further motions regarding the order at issue must be addressed first in the juvenile court.

1996—Bullis v. Bullis, 22 Va. App. 24
In Virginia, the general appellate jurisdiction is in the Supreme Court and not the Court of Appeals. The Court of Appeals’ appellate jurisdiction in civil cases is limited to the subject matter set forth in Va. Code §§ 17-116.05 and 17-116.05:1. Jurisdiction over an appeal from a final judgment must be based upon an assessment of the underlying cause.

Court of Appeals had jurisdiction over a final order domesticating and enforcing a judgment of another state where the underlying issue of the judgment involved a domestic relations matter.

1996—Romine v. Romine, 22 Va. App. 760
A circuit court’s assumption of jurisdiction over a matter that it previously transferred back to the juvenile court for purposes of enforcement and modification pursuant to Va. Code §20-79(c) divests the juvenile court of further jurisdiction. Although a circuit court retains concurrent jurisdiction over a matter transferred back to the juvenile court pursuant to Va. Code §20-79(c), a juvenile court does not retain concurrent jurisdiction pursuant to such a transfer once the circuit court again exercises its jurisdiction in the case. A circuit court’s assumption of jurisdiction after transfer to a juvenile court conclusively determines that the matter will be litigated in a court of record. It follows that, in assuming that jurisdiction, the circuit court intends to preclude the juvenile court from acting on that issue.

1963—Lucas v. Biller, 204 Va. 309
Subject matter jurisdiction cannot be obtained by consent of the parties, by waiver, or by estoppel.

  (C)       Transfer

2018— Spear v. Omary, Va. Ct. of Appeals, Unpublished, 0064-17-4 Williams v. Williams, 61 Va. App. 170
The circuit court did not err by vacating the juvenile court’s order modifying Father’s child support obligation. Following entry of the final order of divorce, the child support matter was properly transferred to the juvenile court. Thereafter, Father filed a motion to modify child support in the juvenile court, appealed the juvenile court’s order denying modification to the circuit court, and then subsequently withdrew his appeal. Afterward, the juvenile court entered the order at issue modifying Father’s child support obligation pursuant to a motion to modify filed by the Department of Social Services, Child Support Enforcement (“DCSE”). The juvenile court, however, lacked jurisdiction to modify child support because when Father withdrew his appeal of the prior order denying modification, the circuit court’s order of withdrawal did not remand the matter back to the juvenile court pursuant to Code of Virginia § 16.1-106.1(F), nor did the circuit court facilitate the remand pursuant to Code § 16.1-297. Consequently, DCSE filed its motion to modify in the wrong court because jurisdiction over the child support matter remained with the circuit court.

2012—Williams v. Williams, 61 Va. App. 170
Va. Code §20-79(c) authorizes a circuit court to transfer to an appropriate juvenile court jurisdiction pertaining to maintenance of a spouse, support, care, and custody of children after the entry of a divorce decree. However, the statute does not authorize such a transfer from one circuit court to another. Though a transfer may be appropriate in cases where venue is improper, when a court lacks subject matter jurisdiction, the case must be dismissed.

1993—Crabtree v. Crabtree, 17 Va. App. 81
A transfer by a circuit court to a juvenile court of matters pertaining to custody, visitation, spousal support, and/or child support pursuant to Va. Code §20-79(C) does not divest the circuit court of its continuing, concurrent jurisdiction to decide such matters.

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