Boyd v. Boyd

• Decision Date: 04 March 1986
• Docket Number: No. 0728-85,0728-85
• Citation: 2 Va.App. 16,340 S.E.2d 578
• Parties: Jimmie Delano BOYD v. Brenda Plaster BOYD. Record
• Court: Virginia Court of Appeals

Page 578

340 S.E.2d 578

2 Va.App. 16

Jimmie Delano BOYD v. Brenda Plaster BOYD.

Record No. 0728-85.

Court of Appeals of Virginia.

Argued Oct. 22, 1985.

Decided March 4, 1986.

William Rogers McCall, Bristol, for appellant.

Linda G. Tiller (Tiller & Tiller, St. Paul, on brief), for appellee.

Present: COLE, COLEMAN and MOON, JJ.

COLEMAN, Judge.

The sole question presented by this appeal is whether the trial court erred in awarding spousal support to the wife upon granting the husband a "no-fault" divorce. The thrust of appellant-husband's argument is two-fold: first, husband contends that the trial court erred in awarding the wife permanent spousal support since no appropriate pleading or motion for spousal support was tendered by the wife; and second, he contends that the trial court erred in not granting him a divorce based on desertion, or, in the alternative, erred in granting a "no fault" divorce without making any findings as to "fault." Because we hold that it was error for the trial court to have awarded spousal support to a party whose pleadings requested no such relief, we do not address appellant's challenge to the grounds for divorce which he raised solely to establish a bar to permanent spousal support.

After a marriage of twenty years, the husband, Jimmie Delano Boyd, filed a bill of complaint for divorce alleging willful desertion and abandonment by the wife, Brenda Plaster Boyd. Mr. Boyd requested custody of the parties' eight year old son but did not seek child or spousal support. Mrs. Boyd filed an answer denying willful desertion and a cross-bill for divorce alleging cruelty and constructive desertion, and praying for an award of child custody, child support and maintenance, attorney's fees and court costs, and an award of equitable distribution pursuant to Code § 20-107.3. The cross-bill contained no specific request for spousal support or maintenance, but did include a general prayer "for such other and further relief as to equity may seem meet and the nature of her case may require." No petition or motion requesting spousal support or maintenance pendente lite was filed, nor was any decree entered providing support during the pendency of the suit. Although counsel for both parties filed trial court memoranda, neither raised the issue of spousal support.

By letter opinion, the chancellor, without addressing or making any findings as to the parties' averments of willful desertion, cruelty or constructive desertion, granted the husband a final divorce "on the grounds of a continuous and uninterrupted separation for a period in excess of one (1) year," ¹ granted custody of the child to Mr. Boyd and reasonable visitation rights to Mrs. Boyd, granted Mrs. Boyd the monthly sum of $130 as "separate maintenance and support," and made a monetary award to Mrs. Boyd for her interest in the marital estate. A decree incorporating the court's rulings was entered over Mr. Boyd's objection and this appeal, limited to the grounds affecting spousal support, followed.

Fundamental rules of pleading provide that no court can base its judgment or decree upon a right which has not been pleaded and claimed. Potts v. Mathieson Alkali Works, 165 Va. 196, 207, 181 S.E. 521, 525 (1935). The office of pleadings is to give notice to the opposing party of the nature and character of the claim, without which the most rudimentary due process safeguards would be denied. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). The rule is clearly stated in Potts:

The basis of every right of recovery under our system of jurisprudence is a pleading setting forth facts warranting the granting of the relief sought. It is the sine qua non of every judgment or decree. No court can base its decree upon facts not alleged, nor render its judgment upon a right, however meritorious, which has not been pleaded and claimed. (citation omitted). Pleadings are as essential as proof,...