Bozsik v. Bozsik
| Decision Date | 14 April 2015 |
| Docket Number | Record No. 1468-14-1 |
| Court | Virginia Court of Appeals |
| Parties | KATHJE LEONIDE BOZSIK v. CHARLES JOSEPH BOZSIK AND CHARLES JOSEPH BOZSIK, SOLE SURVIVING TRUSTEE OF THE CHARLES BOZSIK AND LINDA LEE BOZSIK LIVING TRUST |
UNPUBLISHED
Present: Judges Humphreys, Beales and Decker
Argued at Norfolk, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY
Breckenridge Ingles (Monique W. Donner; Martin, Ingles & Hensley, Ltd., on brief), for appellant.
John Tarley, Jr. (Tarley Robinson, PLC, on brief), for appellees.
Kathie Leonide Bozsik (wife) appeals the circuit court's orders granting the demurrer pled by Charles Joseph Bozsik (husband) and directing wife to sign a quitclaim deed and to pay $5,953.01 in attorneys' fees and costs to husband. For the following reasons, we reverse and remand the matter to the circuit court for further proceedings consistent with this opinion.
On June 29, 2011, the parties entered into a pre-marital agreement (the PMA). Pertinent to this appeal, the PMA included the following provision concerning a life estate for wife in a residence on Pinebrook Road (the residence):
Husband will execute and have recorded a deed to the residence owned by him and situate[d] at 7151 Pinebrook Road, Williamsburg, Virginia 23188, which deed shall provide for a life estate to be vested in Wife. Wife shall have the opportunity to continue to occupy the residence after the death of Husband, however that she shall be fully and solely responsible for utilities, taxes, repair and maintenance of the home during her period of occupancy. Further, Wife agrees that upon her ceasing to occupy the residence as her primary place of abode (at least 305 days per calendar year) she shall upon request sign such documents as may be required to terminate her life estate and permit the property to be disposed of in accordance with the provisions of the Charles Bozsik and Linda Lee Bozsik Living Trust dated September 19, 2006.
The parties married in the City of Williamsburg on January 27, 2012. They separated on August 22, 2012. Husband filed a complaint for divorce in the circuit court.
On January 2, 2013, the circuit court entered a pendente lite order that memorialized its rulings from a hearing held on December 4, 2012. In the pendente lite order, the circuit court acknowledged wife's life estate in the residence - as provided for in the PMA - yet also ordered wife to vacate the residence.2 The record on appeal in this matter does not indicate why the circuitcourt ordered wife to vacate the residence. However, it is clear from the record that wife complied with the pendente lite order and vacated the residence pursuant to that court order.
On March 28, 2013, husband signed a deed pertaining to the residence, in which wife was granted a life estate in the residence "for so long as she wishes to occupy it as her residence . . . ."3 This deed, which was recorded on April 9, 2013, apparently has not been supplanted by a later deed or modified in any way.
On September 27, 2013, the circuit court entered a "Decree of Divorce," in which it granted husband a divorce from wife on no-fault grounds. The decree incorporated the PMA's provisions, and the parties were ordered to follow the PMA's terms. Addressing the property at issue in the divorce, including wife's life estate in the residence, the divorce decree stated:
ADJUDGED, ORDERED, and DECREED that jointly owned 2012 Lexus RX automobile purchased during the marriage, in accordance with the Pre-Marital Agreement, is equally owned property. Henceforth the vehicle shall remain in [wife's] sole possession and [wife] shall be responsible for all costs associated with the use of the vehicle, including, but not limited to, the payment of personal property taxes, liability insurance, licensing, maintenance, and repair. The value of the automobile shall be determined in a partition suit that will be filed subsequent to this proceeding, and [wife's] obligation to pay [husband] one-half of the fair market value of the vehicle shall be offset against [husband's] obligation to pay [wife] for the life estate that she has in and to the marital residence located at 7151 Pinebrook Road, Williamsburg, Virginia.
Defendant's life estate in the marital residence shall be valued in a partition suit that will be filed upon conclusion of this suit and will deal with both the 2012 Lexus RX automobile and [wife's] life estate in the marital residence.
On October 9, 2013, wife filed in the circuit court a complaint for partition of the residence, to which husband filed a demurrer. Wife then filed a complaint for possession of the residence onDecember 20, 2013, to which husband also filed a demurrer. On December 27, 2013, husband filed a petition for a rule to show cause in the circuit court, in which he requested that the circuit court order wife to sign a quitclaim deed relinquishing the life estate and that the circuit court award husband reasonable attorneys' fees and costs.
At a hearing on February 18, 2014, the circuit court considered wife's complaint for partition, wife's complaint for possession, and husband's petition for a rule to show cause. Furthermore, the circuit court also considered and granted husband's demurrers to wife's partition and possession complaints at that time. Consequently, no evidence was taken at that hearing - although the parties and the circuit court did refer to the PMA, the pendente lite order and divorce decree, and the April 9, 2013 deed. Wife has not assigned error to the circuit court's decision to grant husband's demurrer to the partition complaint - and, therefore, we need not and do not address that issue on appeal. However, wife has assigned error to the circuit court's decision to grant husband's demurrer to the possession complaint.
At the February 18, 2014 hearing, the circuit court found that wife had no right to possession of the residence. Specifically, the circuit court found that wife forfeited her life estate in the residence, under the terms of the PMA, by failing to occupy the residence as her "primary place of abode" for 305 days per year. The circuit court stated that it was immaterial that wife actually left the residence so as to comply with the pendente lite order - which had directed wife to vacate the residence by December 19, 2012. Given its finding at the February 18, 2014 hearing that wife was no longer entitled to hold a life estate in the residence, the circuit court also ordered wife to sign a quitclaim deed formally relinquishing her life estate. Furthermore, the circuit court found that husband was entitled to an award of attorneys' fees and costs -- the specific amount for which was determined at a subsequent hearing on April 21, 2014. The circuit court issued three final orders onJuly 1, 2014 (relating to the partition complaint, the possession complaint, and the petition for a rule to show cause), and the circuit court consolidated those cases for purposes of appeal.
On appeal to this Court, wife has raised seven assignments of error, alleging that the circuit court erred:
II. ANALYSIS
Prior to oral argument before this Court, the parties were instructed to address during oral argument whether this Court has subject matter jurisdiction to consider wife's appeal, given that wife's complaint for possession was filed under Code § 8.01-131.4 Code § 17.1-405(3) states thatthis Court's subject matter jurisdiction includes appeals from orders of divorce and "[a]ny other domestic relations matter arising under Title 16.1 or Title 20 . . . ." Code § 17.1-405(3); see CVAS 2, LLC v. City of Fredericksburg, ___ Va. ___, ___, 766 S.E.2d 912, 914 (2015); see also Khanna v. Khanna, 18 Va. App. 356, 357 n.1, 443 S.E.2d 924, 925 n.1 (1994) Carlton v. Paxton, Record No. 910689 .
Here, husband was granted a divorce from wife under Code § 20-91(A)(9)(a) in the September 27, 2013 divorce decree, which incorporated the provisions of the PMA. See Code § 20-109.1 (). However, even though the PMA provided for wife's life estate in the residence and was incorporated into the circuit court's pendente lite order and divorce decree, the divorce decree did not actually resolve any issue with respect to wife's life estate in the residence, including the right to possess the residence. Instead, the circuit court deferred any future rulings about the life estate (and about the parties' Lexus automobile that was purchased during the marriage) pending further litigation that would occur in the circuit court. The present litigation that is now on appeal before us is simply the...
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