Litigation Procedure and Law - § 8-14 - § 8-14 (D)

§ 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 of Appeals, Unpublished, No. 1235-17-2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 of Appeals, Unpublished, No. 1221-14-3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—Austin v. Commonwealth, 42 Va. App. 33
According to Va. Code Ann. § 16.1-297 once the circuit court acquires jurisdiction, it retains jurisdiction over the juvenile proceedings until it remands the matter to the juvenile court, dismisses the proceedings, or discharges the Juvenile. Further, the circuit court has the authority to retain jurisdiction or affirmatively to remand subject matter jurisdiction to the juvenile court. The circuit court’s failure to file a copy of its final judgment with the juvenile court does not result in the loss of jurisdiction by the circuit court.

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.

(D) Pending Appeal

2017---Reaves v. Tucker, Va. Ct. of Appeals, 67 Va. App. 719
The trial court did not abuse its discretion by refusing to stay the divorce proceedings pending Wife’s appeal of an interlocutory order to the Court of Appeals of Virginia (“COA”). The orderly administration of justice demands that when an appellate court acquires jurisdiction over the parties involved in litigation and the subject matter of their controversy, the jurisdiction of the trial court from which the appeal was taken must cease. When a party files a notice of appeal, that notice effectively transfers jurisdiction from the lower court to the appellate court and places the named parties within the jurisdiction of the appellate court. However, the COA is a court of limited jurisdiction. Unless a statute confers jurisdiction to the COA, it is without power to review an appeal. While a court always has jurisdiction to determine whether it has subject matter jurisdiction, a judgment on the merits made without subject matter jurisdiction is null and void. Consequently, a notice of appeal cannot transfer subject matter jurisdiction to the COA if that subject matter is not within the court's limited jurisdiction. Here, Wife appealed the trial court's order denying her motion for a continuance, which was not a final dispositive order. Although the COA had jurisdiction to determine whether the appeal fell within its subject matter jurisdiction, it did not acquire jurisdiction over the case because the trial court’s order denying Wife’s motion for continuance did not fall within the COA’s subject matter jurisdiction. Because the trial court retained jurisdiction over the case, it had the discretion to decide whether to stay the trial pending the appeal or to proceed with the trial.

As a practical matter, when a notice of appeal of an interlocutory order is filed, the trial court proceeds at its own risk. As with any appeal, if an appellate court reverses the trial court's decision and remands the case back to the trial court, then any decision by the trial court subsequent to the order being appealed that is in conflict with the resolution of the appeal by the appellate court would have no force and effect. If the trial court has doubt whether the appellate court will reverse its interlocutory order, it may decline to act further until the purported appellee obtains dismissal of the appeal in the court of appeals. In such a situation, a stay may promote judicial efficiency in the administration of the litigation. In contrast, where a deficiency in a notice of appeal, by reason of untimeliness, lack of essential recitals, or reference to a non-appealable order, is clear to the trial court, it may exercise its discretion and proceed with the case, knowing that it has not been deprived of jurisdiction.

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