Clark v. Clark

• Citation: 11 Va.App. 286,398 S.E.2d 82
• Decision Date: 13 November 1990
• Docket Number: No. 1122-88-2,1122-88-2
• Court: Virginia Court of Appeals
• Parties: Marguerite Demahis CLARK v. David Osborne CLARK. Record

Page 82

398 S.E.2d 82

11 Va.App. 286

Marguerite Demahis CLARK v. David Osborne CLARK.

Record No. 1122-88-2.

Court of Appeals of Virginia.

Nov. 13, 1990.

Sylvia Clute (Clute & Shilling, on briefs), for appellant.

Jeffrey M. Zwerdling (Zwerdling and Oppleman, on brief), for appellee.

Panel: JOSEPH E. BAKER, COLEMAN and DUFF, JJ.

COLEMAN, Judge.

In this appeal we decide whether a spouse may reinstitute a divorce suit in Virginia after that spouse had previously filed and voluntarily nonsuited a divorce suit in a foreign jurisdiction. Mrs. Clark contends that the Petersburg circuit court should have declined to hear the husband's bill of complaint for divorce because he had previously filed and nonsuited a similar complaint in Switzerland. She argues that the venue restrictions of Code § 8.01-380 and the Swiss nonsuit statute both require that when a cause is nonsuited, further proceedings by that party must be filed and conducted in the same court. Thus, the central question raised by the appeal is whether Code § 8.01-380 applies to bar the filing in Virginia of a divorce suit by the same party who has previously filed and nonsuited a divorce case in a jurisdiction outside the continental United States. Alternatively, the wife contends that if the Virginia nonsuit statute is inapplicable, the doctrine of comity nonetheless requires that the Swiss nonsuit laws be given effect in this Virginia proceeding, which laws provide, in addition to restricting venue, that when a nonsuit is taken in Switzerland, it is the equivalent of a judgment being rendered for the defendant. Thus, the wife argues that the Swiss nonsuit statute requires the husband to refile there, or alternatively, if the Virginia court may properly entertain the husband's bill of complaint, it must apply the Swiss fault determination. Finally, the wife argues that the court erred by granting the husband a divorce without simultaneously deciding the equitable distribution issues as required by Code § 20-107.3(A). She maintains that the parties had not jointly made a motion to defer an equitable distribution determination and the court made no finding that deferring a ruling was clearly necessary due to the complexity of the parties' property interests.

We hold that the trial court did not err in ruling that Code § 8.01-380 is a venue restriction statute that applies only to proceedings previously initiated in Virginia courts. Code § 8.01-380 does not preclude a party from filing a cognizable cause of action in Virginia courts even though he or she has previously filed and nonsuited the same action in a jurisdiction other than in Virginia. Likewise, we hold that the trial court did not err by refusing to give extraterritorial recognition by way of comity to the Swiss procedural default doctrine that a voluntary nonsuit is equivalent to an adverse finding on the divorce issues which had been pled. However, we hold that the trial court did err by granting the husband a final divorce and attempting to retain jurisdiction to later adjudicate the equitable distribution issues without having a joint motion of the parties and making a finding of clear necessity due to the complexity of the property issues. Therefore, we vacate the final decree granting the husband a divorce and remand the case for a distribution of property contemporaneous with the adjudication of the divorce.

Marguerite Clark and David Clark lived in Petersburg, Virginia, until August, 1983, when the husband, who had taken employment in Switzerland, moved there while his wife and child remained in Virginia. In August, 1984, David Clark filed for divorce in a Swiss court in the jurisdiction of Neuchatel. The wife submitted to Swiss jurisdiction, and the parties proceeded to litigate their divorce issues. The wife did not file a cross-action for divorce in the Swiss proceeding.

The parties pursued the Swiss divorce litigation for approximately three years until June, 1987. Mrs. Clark incurred considerable expense in preparing to defend the Swiss proceeding, in pursuing her remedies there, and in compiling evidence in the United States which would qualify for use in the Swiss courts. The expenses and rigors of preparing for the litigation appear to have been proportionately greater for Mrs. Clark, particularly given the disparity between their financial resources. During the Swiss proceedings, the wife subpoenaed a woman whom she alleged to be her husband's live-in paramour to testify at the trial set for late June, 1987. Prior to trial, the husband took a voluntary nonsuit. Noting that the wife had not filed a cross-suit, the Swiss court in its closure order of June 12, 1987 acknowledged that it was constrained to grant the husband's nonsuit, which ended the Swiss divorce proceedings.

Immediately after the nonsuit in Switzerland, the husband filed a bill of complaint for divorce in the Circuit Court of the City of Petersburg, where the parties last maintained a marital domicile, in which he asked for a divorce on ground that the parties had lived separate and apart for more than one year. The wife filed a motion to dismiss on the basis that Code § 8.01-380 provides that the only permissible venue for filing a cause of action which has previously been nonsuited is the same jurisdiction where that action was previously filed. The trial court ruled that the venue provisions of Code § 8.01-380 apply only within the jurisdictions of Virginia and have no effect or application to a suit filed and nonsuited in a foreign jurisdiction.

The wife, relying upon Oehl v. Oehl, 221 Va. 618, 272 S.E.2d 441 (1980), also filed a motion requesting the Petersburg circuit court to decline jurisdiction on the basis of comity. She argued that comity requires not only that a jurisdiction give full recognition and effect to a foreign final order which adjudicates the merits of a cause, but also requires that a court give the same effect that the foreign jurisdiction does to its law governing a final decree, even though it does not adjudicate the merits of a cause. Thus, the wife argues that the Swiss law provision which is analogous to the Virginia nonsuit venue restriction in Code § 8.01-380, under the doctrine of comity, requires the husband to refile his divorce proceedings in Switzerland. In other words, the wife argues that comity required the Virginia court to defer to and apply the procedural law of Switzerland, much as it would defer to and enforce a valid judgment from Switzerland. The wife also averred in her motion that Swiss law provides that a voluntary nonsuit operates as a judgment in favor of the defendant in the suit, and therefore, if the Circuit Court of Petersburg properly entertained the divorce suit, it must nevertheless under the principles of comity recognize the Swiss nonsuit as an adjudication that the husband was at fault in causing the dissolution of the marriage.

The wife argued in support of her motions that the husband should not be allowed to shop for a more suitable forum after he nonsuited the same cause of action in another jurisdiction when he concluded that he would suffer an adverse result. She points out that she voluntarily submitted to the jurisdiction of the foreign forum and incurred considerable expense and time in preparing for the litigation. Based on fairness and equity, the husband, who unilaterally chose Switzerland as his original forum, should be required to return there to pursue his divorce or should have the effect of the nonsuit as it would have obtained in Switzerland applied to the divorce suit filed in Virginia.

The trial court ruled that the Swiss nonsuit order did not achieve the same level of dignity as a final divorce order and ruled that the Swiss nonsuit provisions restricting venue were not, by virtue of the doctrine of comity, generally applicable to bar a divorce suit otherwise cognizable in Virginia.

Concluding that it had jurisdiction, the Circuit Court of Petersburg granted the husband a final divorce on the ground of the parties having lived separate and apart for one year, dismissed the wife's cross-bill, and retained jurisdiction to decide equitable distribution and spousal support issues. The wife objected to entry of a final divorce decree which did not decide the equitable distribution issues but retained jurisdiction to do so. She argued that bifurcating the distribution of marital property from the divorce decision violated the plain language of Code § 20-107.3(A), which provides that a court may grant a divorce and retain jurisdiction to adjudicate the equitable distribution issues only upon a joint motion of the parties and when it is clearly necessary to do so because the property issues are complex. Prior to any proceedings concerning equitable distribution, the wife appealed the final divorce decree.

I. NON-APPLICABILITY OF THE VENUE RESTRICTION OF CODE § 8.01-380

We reject the wife's contention that Code § 8.01-380 restricts the husband from bringing a suit for divorce in Virginia because he previously filed and nonsuited the same cause of action in a foreign jurisdiction. We hold that the venue restriction of Code § 8.01-380 ¹ applies only to causes filed and nonsuited in Virginia.

Concededly, the policy underlying the venue restriction when a complainant takes a voluntary nonsuit is to protect the courts and opposing parties from the possible abuses of the nonsuit privilege. Yarber v. Allstate Ins. Co., 674 F.2d 232, 236 (4th Cir.1982). "In particular, [the statute's venue restriction] scotches any opportunity to engage in secondary forum shopping with the benefit of a trial run in a court of first choice." Id. at 237. The wife argues that nothing in the statute limits its application to causes of action which were filed and nonsuited in a Virginia court, but rather the underlying policy of the statute--which is to prevent strategic forum shopping and to spare defendants from vexatious multiple...